Front Page Titles (by Subject) DEFINITION XIII: A law is a decree by which a superior binds one subject to him to direct his actions according to the command of the superior. - Two Books of the Elements of Universal Jurisprudence
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DEFINITION XIII: A law is a decree by which a superior binds one subject to him to direct his actions according to the command of the superior. - Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence 
Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009).
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A law is a decree by which a superior binds one subject to him to direct his actions according to the command of the superior.
1. At the outset, a law is to be accurately distinguished from those things which seem to be related to it in a certain way, and so are confused by some persons with it, I mean, a word of counsel, a pact, and a right.1 Now a law differs from a word of counsel, indeed, in the fact that through the latter, by means of reasons drawn from the facts of the case, a person endeavours to induce some one over whom he has no authority, at least as far as the present affair is concerned, to undertake or to give up some thing, without bringing any obligation to bear upon him, and in such a way that it is left to his own free choice whether he wish to heed the counsel, or not. But even though a law ought not to be without its own reasons, nevertheless, these are not properly the cause of bestowing obligation upon the law, but rather the authority of the one who gives the precept, who, in signifying his will, lays upon the subject the obligation of acting altogether according to his prescript, although, perchance, the reasons for the same may not be so clearly apparent to the latter.
2. Nor, in truth, are those sufficiently accurate who speak of laws as certain common agreements, or in other words, κοινὰς συνθήκας,2 since thereby they confuse a law with a pact. For assuredly, neither the positive divine laws nor the laws of nature can be said to have arisen from the agreement or consent of men. Nor are civil laws, properly speaking, pacts, even though they have their origin in a pact. For even if some multitude not bound to one another by supreme sovereignty should entirely agree with one another upon certain formulae for living together, still this would be in vain, if a supreme sovereignty had not yet been set up, through whose force the disobedient could be restrained by punishments. For this agreement would have no other force than that which, on the basis of the law of nature, inheres in pacts. But, in truth, the end of civil laws is to have men held to the performance of something by a tighter bond than natural obligation, to wit, by the addition of a penalty to be inflicted upon us in a human court of law by men having, as it were, authority over us. What of the fact that it appears altogether impossible to enter upon an agreement of this kind without establishing a supreme sovereignty? For, when no one is given the right of forcing me to perform an agreement, if I should be unwilling to do so of my own accord, then nothing has been performed between us. But if to the rest as a whole authority has been given to use coercive force upon the recalcitrant, and to reduce them to order, the equivalent of a democracy arises. Nevertheless, a pact gives the civil laws their origin, because by it there is established a supreme sovereignty, in whose hands is the authority to enact laws in a gathering subject to it. Nor does it make any difference that in democracies, at least, the majority of the citizens ought to agree in enacting a law. For that agreement is a means whereby there is displayed the force of that supreme sovereignty which, on the basis of the pact, has been bestowed upon the gathering of one and all, so that, namely, one and all might be able, in the exercise of authority, to enjoin upon individuals what the majority had approved of. Add also, that, since pacts, as far as their origin goes, depend upon our free choice what is to be done in them should be determined before we obligate ourselves to the performance of it; but, in a law which presupposes another’s authority over us, we are obligated beforehand to do something, while what is to be done is determined afterwards.
3. Now as the word jus (law) often means the same as lex (law), especially where it is used for a complex of laws, so we should be on our guard not to take it in the sense of law, when it denotes the authority to do something; for example, we are not to fancy, when it is said we have a right (jus) to this or that by the divine law (lex), that this has also been ordered by the divine law, and so we can rightly do it, even if it be forbidden by human laws. For, since a man has the authority or right to do all those things which can proceed from his natural powers, except such as are prohibited by law, there arises therefrom the common form of expression, namely, that those things which are permitted by some law or are not prohibited, we are said to have the right to do on the basis of that law. But this is something utterly different from what is ordered by the laws, as will soon appear.
4. Now in the one who is going to enact a law for another, it is first of all required that he should have such authority over him upon whom the law is to be enjoined, that he can force him to the observance of that law, by proposing a penalty; for it is vain to order one to do that which can be neglected with impunity. And so no one is obligated by the laws of a person or a group which has no authority over him. And the faculty of enjoining something by way of a law or an order, implies superiority, just as the obligation of obedience convicts us of being inferior to the one who can give an order to us, at least where his command [imperium] extends. For the same cause no one can be irrevocably obligated by his own decisions directly. For the fact that in pacts or promises, by my own agreement, I am so obligated that I am either altogether unable to be freed from my agreement, or else only with the consent of the one to whom the agreement was directed, is due to the law which keeps me from going back on that agreement by which some right has once been given a second person. Where such a law fails to exist (a natural as well as a civil law), nothing keeps me from being able to change, according to free choice, the determination of my will once made by myself. Now this point also ought to be observed, namely, that it makes no difference, just who it was that drew up the formulae of the laws in their enactment, provided only that he who properly has the legislative faculty, recognizes and promulgates them as his own. Thus, in a monarchy, whatever is enacted by the authority [autoritate] of the prince is valid as a law, whoever he be in the last resort who formulated the wording of the law. Thus, in a democracy, it may be that the people enjoin upon one or upon several the duty of drafting laws, yet their force comes not from those who write them, but from the people, and so the legislative authority does not inhere in them, but in the people.
5. The matter or the object of laws in genus is whatever may be done by those people for whom the laws are passed, at least at the time at which the laws are passed. For, if afterwards a man should lose by his own fault the faculty to fulfil the law, its force does by no means altogether expire, but there is left to the legislator the authority to punish him, because he can no longer obey his laws. But, otherwise, to lay upon some one a law which he cannot fulfil, and yet it is not his fault that he is unable to do so, is not only futile, but is connected with the utmost injustice.3 But in species natural laws have to do with those matters which so harmonize with the social nature of rational man, that, unless they are observed, violence is done in a certain fashion to nature herself, and an ordered and tranquil society cannot be preserved among men.4 Those things which are not determined by the laws of nature it is permissible to adjust by means of positive laws.
6. Furthermore, since God is quite as much the author of natural laws as of his own positive laws, and it were impious to think that he ordains things contradictory to one another, it is assuredly apparent that the divine positive laws cannot at all be opposed to natural laws. But there are some who deny the possibility that even civil laws can be opposed to natural laws (unless, perchance, they be passed in contumely towards God), and this position they base on the argument that those who unite to form a state, bind themselves by a pact to the effect that they are willing to obey the mandates of him who has supreme sovereignty, that is to say, the civil laws; and the law of nature bids them to keep this pact. But, since that pact, and so the obligation to preserve the civil laws, is anterior to the actual promulgation of the laws, by the force of the same natural law about not violating a pact we are bidden to observe all civil laws. For, where we are obligated to obedience before we know what bidding will be given, there we are obligated to obey universally and in all things. Furthermore, although by a law of nature, as it were, theft, homicide, adultery, &c., are forbidden, nevertheless, it is in the province of civil laws to define what is another’s, what is one’s own, what force it may be permissible to employ against a man, and just what kind of sexual connexion constitutes adultery.5 And so, although boys among the Lacedemonians secretly stole the property of other persons, nevertheless they did not commit theft, because the civil law had defined that a thing taken in that fashion was not another’s. Or, when the same people allowed an impotent old man to substitute some vigorous young man in order to get his wife with child, that was not adultery, because the civil laws did not include under the head of adultery such sexual connexion with another man’s wife at the instigation of the husband himself.6
Now, in truth, because all these contentions flow from an hypothesis about the natural state of man, the weak points of which we shall show in the proper place, they cannot be allowed in any such crude form. For, at the outset, among us who venerate Sacred Scripture, it is possible from the very laws which were divinely promulgated for the Jews, and from the extraordinary revelations by which God made known his will unto men, to ascertain in the case of a large number, surely, of crimes prohibited by the law of nature, just how God, the author of nature, wishes them to be defined; and so, no matter if a state has in fact excepted certain actions from the brand of that charge, these actions are none the less opposed to the divine law, especially since a sufficient reason cannot be shown, why God should have assigned to those things, in the laws given to the Jewish people, definitions such as ought not to obtain equally among the rest of the nations. Thus, since it appears from the divine laws, that, by the law concerning adultery, any sexual intercourse at all with a woman actually still united in marriage to another is forbidden, it must assuredly be said that those vicarious services exercised among the Spartans are contrary to the law of nature. But, if any should herein make some exception against the declaration of the Sacred Scripture, they will still be forced to grant that the definitions of acts forbidden by the law of nature are so to be formed by the civil law, that the intent and purpose of the law of nature shall not come to naught, and this intent and purpose is that an upright and peaceful society be preserved among men. If, therefore, some definition of a civil law be opposed to this end, it must altogether be admitted that the same is repugnant to the law of nature. Nor is there reason for believing that enough is being done in this way for peace, because definitions of that kind are universal, so that even if, perchance, sometimes they inconvenience some one person, on another occasion again they may help him; and that the equality of right which laws of that kind set up among citizens removes the cause of complaints. For there are some things which, although, perchance, we might be eager to be solely permitted to do them, nevertheless, if others also were going to be permitted to do them to us, we should not even desire to be permitted to do ourselves; and if such things be established by civil laws, it is impossible that peace and the proper order intended by nature be not disturbed. Why, if that equality of which they speak were sufficiently valid to introduce a right, it would be permissible in the same manner to destroy all laws, for thereby the utmost equality would be introduced; and yet no one would undertake to assert that. Thus some author or other7 reports of the Tartars that it was a custom among them for one who had taken something away from a second person, merely to give as an excuse to the judge that he needed it, and the judge would render this decision: “Because you had need, keep it; and so you of the other party, if you shall likewise need anything, you will be allowed to take it from another person in the same way.” Therefore, by Tartar definition, it will be theft when something is taken from its owner, against his will, which was not needed by the one who took it. Yet one can scarcely doubt that the narrowness of this definition all but utterly overturns that law of nature about theft. And surely no one, in my judgement, would wish for such a law, since it might very frequently happen that he himself would be robbed of that which was the last thing in the world that he would be willing to part with, and whose like he could not find in the possession of another, or else, because its owner watched over it, would be prevented from carrying off.
7. Whatever this may amount to, however, the whole matter can be settled clearly, if it be carefully observed that permission is one thing, precept another; or, in other words, that it is one thing to have a precept given by civil laws, another to have something permitted, or not prohibited by the same. For these two conditions are not mutually at variance, namely, that a thing is forbidden by the law of nature, and permitted by civil laws. For the permission of the civil law does not prevent a certain act from being contrary to the law of nature, or allow one to commit it without sinning against God; but it merely declares that, by civil authority, the one who desires to commit the act is neither prevented from doing so, nor punished, and that in a human court of law those acts are granted the effects which otherwise attend also upon acts that are licit and legitimate on the basis of the law of nature. Thus, among the Tartars, a man was not bidden to take another’s goods from him, but if he did so, he was not punished, nor was he compelled by the magistracy to make restitution, and so, in that court of law, taking things away in such fashion was regarded as a legitimate mode of acquisition. The same is to be judged of the thefts committed by boys among the Laconians and of the vicarious procreation of offspring, where, to be sure, no legal precept compelled either an aged husband or a young man qualified for breeding purposes, to this act, but, if they agreed, the laws did not prevent it, and in their own court they allowed such sexual intercourse to have the same effect as, otherwise, marital cohabitation has, namely, that children so engendered were regarded as legitimate. But whether the magistracy may rightly permit such things, is a different question, and one which depends on the answer to the following: Whether, namely, a civil magistracy be bound to punish all wrongs whatsoever that have been committed against the law of nature? This I should not dare to affirm in general, though, certainly, it is necessary that one man punish another for violating the law of nature or the divine law, not because the legislator’s authority [auctoritas], damaged by the misdeed, must necessarily be asserted among men, since the legislator has his special tribunal for that; but in so far as, without punishment of this kind, a decent society and peace cannot be maintained among men. If, now, the highest civil authority has decided that the society of which I have spoken can be well enough preserved, even if the force of a civil law be not assigned to some precept of the law of nature, it scarcely seems that this civil authority is bound to exact punishment from violators of that law of nature, at all events, where because of the peculiar disposition of the citizens, or for other reasons, greater disadvantages would come from the civil prohibition of the matter than from permitting the same. If, however, the state, by way of a precept, and with the threat of punishment, enjoins upon its subjects either to do something which the law of nature forbids, or to give up doing what it orders, we emphatically deny that obedience is due the state herein. From which it is evident that the pact, whereby a man obligates himself to obey the supreme sovereignty, is not so absolute but it involves at least the limitation, “as far as what is ordered be not opposed to the laws of God and nature.”
8. From what has been said this question also is to be decided, whether, namely, the laws of the Decalogue about honouring parents, about theft, adultery, homicide, and false witness,8 be natural laws, as men commonly judge, or, in truth, civil laws, as some think. This much, indeed, is certain: in so far as they are viewed as laws promulgated by God through the instrumentality of Moses for the Jews, they are in fact civil; because God himself in that commonwealth performed also the function of a civil legislator, and those precepts had there in every way the force of civil laws, punishment, which it was in the hands of the magistracy to exact, being provided against transgressors. But when those laws are considered with reference to their substance, as they necessarily harmonize with the condition of human society, and so obligate all men, even apart from their promulgation by Moses, they are in fact laws of nature. And it makes no difference, that they seem to presuppose certain pacts, for example, marriage, ownership of goods, constitution of the state, and courts of justice, which are established among men by pacts. For the very law of nature requires that men enter into such pacts, since, without them, human society could not be preserved at all. And those laws also which presuppose some human deed can altogether be called laws of nature, even if the performance of that deed, at least here and now, does rest in the free choice of man.9 But, if one should suppose that the state of nature was the war of all against all, and should call those laws natural which obligate one in that state alone, then, of course, we should confess it to follow, on the hypothesis just mentioned, that those laws are not natural. However, we shall set forth below what should be thought of this hypothesis.10
9. Now the nature of law consists principally in this, namely, that it is a notional norm for actions, showing how far they should be conformed to the will of some superior. I use the expression “a notional norm,” because it touches actions only through the intellect, in envisaging to the intellect the will of a superior relative to doing or avoiding something. For, when this is made known, immediately there arises in the subject the obligation to act in accordance with that law, and this because he understands that he who enjoins that law upon him has the authority to compel him by the imposition of some evil, if he refuse to obey,11 and that he will exercise this authority is well established from the fact that no one is presumed to wish his action to have no effect.
10. The consequence of this is, that, in order for a law to exert its force, knowledge both of the legislator, and of the law as well, is required on the part of the one for whom the law is passed. For how can a man render obedience if he knows neither whom he ought to obey, nor to what he is bound? Nevertheless, it is sufficient here for him to have known that once. For, if a man should forget what he has known once, he is not on that account released from obligation, because he could very well have remembered it, if he had had the desire to obey, which he ought to have had. Also the knowledge of the legislator, indeed, cannot easily escape one. For no one who knows how to use his reason, will fail to recognize that He who is the author of the whole of nature, is the author of nature’s laws. Much less is the maker of civil laws obscure to a citizen, since, forsooth, he is appointed either by the express consent of the citizens, or their tacit consent, while they are subjecting themselves in every way to his sovereignty. Furthermore, we shall set forth below how it comes about that the law of nature is recognized from the contemplation of the condition of mankind.
Now civil laws became known through promulgation. In this two points ought to be clearly established: one is that the laws are actually proceeding from the one who has supreme sovereignty, the other is their meaning. The former is known when the very person who enjoys the supreme sovereignty promulgates the law, either with his own voice, or through the instrumentality of those who have been delegated by him. There is no reason for doubting that these delegates of his are bringing forward laws by the authority [autoritate] of the supreme sovereignty, if it be clearly established that they are commonly employed by the sovereign for the purpose of setting forth his will; if they observe the method recognized by custom; if the laws in question be accepted for use in trials before a court of law; and if they contain nothing derogatory to the supreme authority of the sovereign. And it is not credible that a minister is going to traffic with something alleged to be the will of the prince, when in fact it is not, or is going to usurp a function of that kind without the prince’s bidding; since one who attempts things of that sort has no hope of avoiding discovery or of escaping punishment for attempting such effrontery. Now in order to have the meaning of the law rightly understood, it is incumbent upon the promulgators to use the utmost possible perspicuity. If anything appear to be obscure in the laws, its interpretation is to be sought from the legislator, or from those who have been publicly appointed to administer justice in accordance with them. For it is their special function to apply the laws to individual instances by interpretation, or, in other words, to make clear, when particular acts have been proposed, just what provision the legislators have made regarding them.
11. Moreover, the subjects whom the legislator desired to obligate, are easily ascertained from the words in which the laws have been expressed. For in all laws the subjects to be obligated are designated either through an express definition, which is made either by an indication of universal applicability, or by restriction to men of a definite status, or to definite individuals; or else through some condition and characteristic which each subject of the legislator recognizes in himself, and at the same time perceives that he is obligated by that law. In general, therefore, a law obligates all the subjects of a legislator whatsoever, with whose condition the character of the law squares, and to whom the subject-matter of the same can be applied. For, since a legislator is believed to have desired to introduce or to preserve by means of his law a certain harmony among those to whom it has been given; and since, in truth, there would be introduced the utmost dissonance, as it were, among them, if certain subjects, whom the character of the law fits, should not be bound by it, no one is regarded as having been exempted from the law except the one who has especially made known his privileges.
12. Now just as it is required, in order to enjoin efficaciously an obligation upon a second person, that it be made clear to him what is to be done, and the fact that he will not go unpunished if he has not performed what is enjoined (for there is no use giving a command to one who, through natural faculties, may go in the opposite direction, unless he is to expect more evil from neglecting the command than from fulfilling it); so the same conditions are found to obtain also in a law, in that they define what must necessarily be done, or let alone (whence also one infers what is licit), what is ours, what another’s, what we may demand from another, what not, and the like; and at the same time they indicate that evil threatens the one who neglects a precept or does a forbidden thing. This latter feature, however, the laws of nature leave a little more obscure, in that they do not so clearly define the kind of penalty which the Deity is going to exact for their violation. But civil laws always indicate this clearly, in that they either expressly determine the punishment, or else, without defining it, hint at it, leaving to the free choice of the legislator the kind and degree of punishment which he wishes to exact. And from this is understood also the sense in which there are ascribed to laws the force of obligating, the force of directing, and the force of coercing or vindicating, of course, only in a notional way, that is to say, in so far as they indicate the will and the decree of the legislator, and display the punishments which he is about to impose upon the violators of the laws. For in the legislator himself there resides properly the authority to exact from his subjects the conformity of their actions to the norm which he has prescribed, and to threaten them with penalties as well as actually to inflict the same. Now legislators as such are said to be using compulsion, not in that they so bind a man by the exercise of some natural violence, that he is utterly unable to do the contrary, but in that they make it difficult for any one to wish to act contrary to the law, by imposing punishment upon transgressors, because the punishment makes it preferable to obey the law rather than to violate it. Nevertheless, the laws always leave that natural liberty to the will, so that if, indeed, it be pleased to subject itself to the risk of punishment, it can in fact act contrary to the laws.
13. In respect to their authors laws can be divided into divine and human, the divine being again divisible, on the score of promulgation, into natural, or general, and positive, or special.12 Every human law is civil. Now as to the subject-matter, some things manifestly harmonize with the very conditions of human nature as such, and flow from it; and some arise from the free choice alone of the legislator, as harmonizing especially with a definite status of men. Of these two classes the former are called natural, the latter positive.
14. As to what the law of nature properly is, what is its fountain-head, as it were, and by what indication a matter is recognized as pertaining to the law of nature, there is no complete agreement among the learned. The Roman jurisconsults commonly define the law of nature as that which nature has taught all living beings.13 Those depart very little from this position who call the law of nature that order implanted in all things by the Creator, whereby each thing does what is in accord with its nature and moves towards its destined end.14 But, in truth, we are seeking such a law of nature as will direct the actions of the rational man, and, although light can be thrown upon it from the contemplation of other creatures, and by their customary mode of action, nevertheless, since we see them for the most part engaged in doing things which suit their nature, indeed, but are alien to the nature of man; and we do not find any one animal in which all the duties of man appear, but different things are done by different animals, while other animals avoid these things; that law is to be derived from the proper nature of man alone, and it is not to be drawn from brutes or inanimate objects.15
In no less obscurity have they left the essence of the law of nature who are satisfied with the statement that it is the law which is universal in time, in place, and among men. Most of these have been pleased to seek its idea and, as it were, prototype in God himself. These divide, nevertheless, into two parties. For some derive it from the divine will, and, since that is free, they conclude therefrom that God can change the law of nature, nay more, can ordain the opposite of it, as is commonly the case in positive laws.16 But others assert that it is founded upon the essential holiness and justice of God, and since that is immutable, they conclude that the law of nature also is immutable.17 Now, in truth, although it has always seemed to us to be profane for a mortal to peer more curiously into things divine than by the path along which God leads him, nevertheless, it seems well to observe with regard to the former opinion, that most assuredly it lay in the free choice of God to give man a nature such that the law would necessarily correspond with it. For there appears to be no necessity which compelled God either to create man at all, or to create him with an obligation towards the law of nature different from that of brutes. But, in truth, since God has so formed the nature of man, that, for the maintenance of His glory, as it were, the natural law was altogether to be observed, we have no right at all to believe that He is willing to destroy or to change it, as long, indeed, as He introduces no change in human nature, and so, assuming the constancy of human nature, even though human nature has been formed in such a fashion by the divine free choice, the law of nature admits of no change, being different therein from those laws which depend upon the divine will in such a way that they do not seem to be necessarily required by the condition of man. As for the latter opinion, although no one is going to be so absurd as to dare assert that this law of nature contains in itself anything repugnant to the divine holiness and justice, nevertheless it will be extremely difficult to prove that the law of nature has been so made to correspond to the divine holiness and justice as to a prototype, that, just as God acts towards creatures, and especially towards men, in the same way men ought to conduct themselves towards one another, on the basis of the law of nature. For the quotations which can be made from Sacred Scripture to the effect that man was made in the image of God,18 do not apply here, since even those who admit that this image has been lost, recognize that a sense of the law of nature has remained in man’s reason. Among men we commonly call him holy who refrains from the grosser vices and is observant of his duty. To conceive of the holiness of God in this manner would be utterly ill advised. Among men justice is wellnigh contained in the principles, “Injure no man,” and, “Give to each his due.” But, in truth, that God, even without respect to antecedent deserts, may inflict some painful thing upon a creature, nay more, may utterly destroy it, cannot be doubted. Nor, in truth, can God owe anything to any man, so that if it be denied He can be said to have done him an injustice. The rules which the punitive justice of God is in the habit of observing are beyond our ken. This much, at least, is well established, that it does not always follow in the footsteps of a human court of law. Finally, those who say that the law of nature is the dictate of right reason, which points out that there is a moral turpitude or a moral necessity about some act, derived from its agreement or disagreement with rational nature itself, and, consequently, that such an act is forbidden or enjoined by God as the author of this law,19 are correct enough on every point except that they do not define just what is the foundation of the congruence or the incongruence of those acts with rational nature. But this we conclude to be the fact, namely, that man was made by the Creator a social animal. For that this is properly the reason why that which is said to pertain to the law of nature so harmonizes with the nature of man, that, if the contrary should take place, it would seem as though violence, as it were, had been done to his nature, all this we shall set forth at greater length in Book II.
15. Here, furthermore, the point on which we touched above is to be carefully noted, namely, that in common parlance natural law includes not merely what is ordered by that law, but also what is not forbidden, or what is merely permitted. He who does not make this discrimination accurately must necessarily involve himself in numerous errors and difficulties. But if we should desire to speak correctly, that which is not forbidden by the law of nature lies outside that law, and, unless it has been prohibited by a positive law, pertains to the object of human liberty, whereby we are understood to have the authority of doing all those things which are not forbidden by any law, although, perchance, the state of nature inclines to one of the alternatives rather than to the other. Moreover, these same matters, if, indeed, they be ordered or prohibited by some legislator, we say belong to positive right; to wit, such matters as do not necessarily proceed from the state of social nature, or such as whose establishment in a general way, indeed, nature urges, but leaves their particular determination to the free choice of men. Now that which is alien to natural equity, is by no means a positive right. For a positive right may be in perfect harmony with natural equity, especially if it be referred to the status of definite societies, notwithstanding the fact that originally it derives its force from the will of those who establish them. So also, he who wishes to call all civil laws whatsoever positive laws too, will be misusing the word, because they have the character of civil laws only by the free choice and imposition of the state. Now the force of positive laws, which fill human and divine right, depends upon the free choice of the legislator not only in origin but also in duration, in such wise, that, as long as he wishes them to be valid, they are necessarily to be obeyed by his subjects, and when he abrogates them, even though no change in a man’s condition takes place, his acts become once more free and indifferent. And so in positive laws the free choice alone of the legislator is to be regarded, even though, perchance, a reason for the law may not be forthcoming. But, on the other hand, natural laws can be called mutable only in a partial sense, that is, to the extent that it lay in the Creator’s free choice so to form the nature of man that these laws should necessarily harmonize with it, and this harmony lasts as long as human nature undergoes no change. Nevertheless, because that immutability of the laws of nature is derived merely from the supposition that man’s estate will persist in the same tenor, it does not seem absurd to say that God can control them, in such wise, however, that under these conditions, there has been enjoined upon men merely the simple performance of that act by the special mandate of God; but that other men may not at all imitate this, or take it as a general mode of action towards one another.
16. The laws of nature are commonly divided into principles, which below we shall call the fundamental laws of nature, whose truth and necessity arise directly from the very character of human nature; and conclusions, which are deduced from these principles by necessary consequence or subsumption. These latter can be deduced from the principles sometimes more clearly, sometimes less so; some also are closer to the same, others more remote. In the next place, among the precepts of the law of nature, some are absolute, namely, those which obligate all men whatsoever in any state whatsoever; others hypothetical, namely, those which presuppose a certain definite status or act depending upon the free choice of men, or which have to do with those matters which follow upon the will of man. For there are many things which are matters of free choice as far as the performance of the act is concerned, or where it rests with men’s free choice whether they care to undertake some act or not; yet, when that act has been undertaken, from some precept of the law of nature moral necessity or obligation follows upon the act, or the method and the circumstances are determined on the basis of the same precept. Thus, for example, although the law of nature does not instruct me to buy something from a second person; assuming, nevertheless, that I do buy freely, the same law bids me not to seek my gain in the other person’s loss, nor to defraud him in a contract. It does not follow from this, however, that all positive laws also belong to the law of nature, because we subject ourselves to the supreme sovereignty of a second person by our own consent, and the law of nature bids us to obey his orders.20 This much, indeed, is certain: Through the medium of the said precept, the law of nature obligates all persons whatsoever to obey the positive laws of their superiors, and therefore, those who neglect these laws are sinning against the very law of nature. But what prevents those positive laws from being called natural is that, in the case of the hypothetical precepts of the law of nature, the reason is sought in the universal condition of men; and this cannot be the case in positive laws, but the reason for obeying them is to be sought solely in the authority and will of the legislator. And so positive laws are not the hypothetical precepts of the law of nature, but from a hypothetical precept borrow their obligating force before the divine judgement-seat.
17. Now, just as the law of nature has the efficacy of an obligation from the most exalted lawgiver, God, in such wise that he who has violated it should be thought to have contravened God’s own will, so there is no doubt but it rests with Him to punish the violation of the law of nature as such. Of a truth, because few have such goodness of character that they are willing to do, solely out of reverence for God, what nature bids; since, forsooth, the divine vengeance unfolds itself for the most part in hidden ways, and most men scorn it because they are unable to find it everywhere; therefore, the law of nature by itself did not suffice for the maintenance of peace and society among men, but, above and beyond that, it was necessary for these to be established through a pact of men, by the very men who were to administer the execution of the law in a human court. For, since the law of nature does not expressly determine just which one is to rule the other, or which ought to obey, and also does not mark the measure of punishment to be inflicted among men; assuredly, when they have formed a pact with one another, men ought to have determined who were to have sovereignty over the rest, by the force of which they could prescribe for others rules of action, and exact punishment from those who broke these same rules, precisely as they judged it to be for the public good so to do.
18. Whatever laws, therefore, are enjoined by the supreme civil sovereignty for their subjects to observe, under the threat of inflicting punishment in a human court of law upon the violators of the same, are called civil laws. These, whether taken from the body of the law of nature, or from the body of positive law, or proceeding from the mere free choice of the sovereigns, obtain the whole effect which they exert in a civil court from the force of supreme authority [potestatis] lending its authority [autoritatem] to them. And, indeed, in all commonwealths, most features of the law of nature, at all events such as those without which peace in the society itself cannot stand, have the force of civil law, or have been included in the body of civil laws. But if, now, some law of nature, due to some actions of the civil sovereignty, has not taken on the force of civil law, it obligates men, indeed, but in such a way that no action is brought because of its violation, nor punishment there inflicted, but the prosecution is left solely to the divine judgement-seat and to one’s own consciousness of having violated that law. Thus, for example, even if every one whatsoever be bound by the law of nature to the duty of gratitude, in such wise that he is in fact sinning who has not exhibited, as far as in him lay, gratitude towards his benefactors; nevertheless, where nothing upon that subject has been embodied in the civil laws, a second person cannot be compelled to return thanks by the force of a civil court of law. It is here properly that there should be referred that saying of Seneca: “How slight a thing it is to be a good man according to the law! How much more broadly does the rule of duties extend than the rule of law! How many things do piety, humanity, justice, fidelity demand! And yet they are all outside public records.”21 Now the reason why legislators have not assigned to all the precepts of the law of nature the force of civil law, is because they had primarily to attend to those matters without which the internal tranquillity of the commonwealth could not exist at all. It seemed best to let the rest pass, partly because to follow them up would produce a boundless harvest of suits before tribunals; and partly because they wished to leave good men a large share of their praise, as it were, unimpaired, the praise, namely, for having done right solely out of reverence for the Deity, without fear of a punishment which was to be imposed by men. And this praise disappears where it is impossible to discern whether one has done right out of fear of punishment, or solely from love of right. From the foregoing it is perceived at a glance that the application of the trite saying, “No one is under compulsion to help the other person, but merely forbidden to hinder him,” is to be restricted merely to civil laws. Yet in all states natural laws supplement the civil law, so that when the latter has failed on some occurrence which altogether demands a decision in a human court of law, there is recourse to the laws of nature and to the analogy resulting from their comparison, whereby, however, that which is borrowed, as it were, from the law of nature takes on the force of civil law. Positive divine law among men obtains the same force as a law of nature, namely, that, through the sanction of the supreme sovereignty, it gains the effect of a civil law, which otherwise would be obligatory only before the divine judgement-seat; although, among the Jews, by the divine promulgation, divine laws received directly the force of civil laws, because God was in a special way also the civil lawgiver for that commonwealth. From what has been said, however, it by no means follows that human laws can derogate from the divine law in any respect, or that it depends upon human authority to decide, how far it may be necessary for the divine laws to be observed. For men cannot be freed by any human law at all from the obligation to fulfil the divine precepts, and the divine judgement-seat does not experience any loss of authority in dealing with transgressors, even if the civil court of law, the circuit, as it were, of whose jurisdiction is circumscribed by the utility to the commonwealth, has excused them from punishment. And so it is a true saying that utility is the mother of law, that is to say, the civil law as such (but not of natural law), or, in other words, that utility gave the reason for establishing law. For nothing but utility or public good decided to which natural laws, in this or that commonwealth, the effect of a civil law is to be assigned, and to which not, what regulations are to be superadded to natural law, how punishments are to be directed against one, and how they are to be remitted, for practically the whole of the civil law is contained under these headings. Nor can any reason be advanced beside this one, why, in different commonwealths, or at different times, the laws vary, and the same punishment is not everywhere imposed for the same misdeeds. That fact, however, is not at all derogatory to the sanctity of natural law, nor do we regard the magistracy as sinning, if, indeed, it has failed to ratify by a civil penalty some precept of the law of nature, because it foresaw that a greater inconvenience would result from so doing than if every one whatsoever be left to his own conscience in that matter—a topic on which we have made an observation just above.
19. The object of civil laws is, in general, all that which can be effectively enjoined by a supreme human authority. The inner acts of the mind, in regard to which laws are enacted in vain, are excluded therefrom, because, forsooth, it is beyond the power of other men to know whether obedience has been rendered the laws or not, so long as external acts do not reveal it. Nor is there any reason why the civil authority should be disturbed on account of things from which, as long as they remain such, there is no danger to the public tranquillity; although, when they have broken out into external actions, the internal action of the mind is most carefully regarded in aggravating or mitigating the crime, as is patent from what we shall say below on the quantity of actions.22 Nor is it within the prerogatives of the civil sovereignty to give precepts contrary to the divine laws, for the reason that the more powerful obligation deriving from the divine law leaves no place to the obligation deriving from human law, and tending in the opposite direction. As for the rest, since, under the direction of the civil magistracy, there fall, in addition to the other things which look to the natural end of man, merely the external aspects of divine worship, it is apparent also that the magistracy can pass laws quite as well about the former as about the latter, the former being called by the general word civil, or secular, the latter sacred or ecclesiastical. These latter, whether they derive directly from the civil authority, or are framed by those who have been especially set aside for the exercise of divine worship, borrow all their authority [autoritatem] in the commonwealth from the supreme civil sovereignty. For the contrary involves the contradictory propositions, namely, that the magistracy possesses supreme sovereignty, and yet that another man in the same state may pass a law on any matter whatsoever, which will be valid even against the will of the supreme sovereignty. But, in truth, in those things which have been defined already affirmatively or negatively by the law of nature or the divine positive law, authority belongs just so far to the supreme civil sovereignty, that it can assign, or not assign, to both, the force of civil laws, just as it may seem best for the commonwealth; and, in the case of affirmative laws, if, indeed, they have not been determined by the nature of the matter or the free choice of God himself, assign definite circumstances to the performance of the same, for example, time, place, manner, and persons.
20. This observation also should be made about civil laws, namely, that in most of them certain acts are prohibited in such wise, that they are even rescinded, when they have been performed contrary to the laws. But, in the case of certain laws, the prohibition, indeed, is against something taking place, but when it has taken place, the act is not rescinded, but merely a fine or some punishment is assessed against the man who has acted contrary to the law, and when this has been met, the act has the same validity as if it were legitimate. Such laws can be called imperfect.23 Among laws of this kind, if we desire to make observations with especial care, some are equivalent to a tribute, in such a way that the licence to do something is sold for a fixed price, and it is expressly left to the free choice of the subjects, whether they prefer to leave the act undone, or to pay a fine which they may even sometimes deposit in advance, the act to be exercised afterwards without impediment. This has no place at all in perfect penal laws, where the penalty assessed upon delinquents is by no means a complete equivalent for the fulfilment of the law, but has rather the purpose that neither the lawbreaker himself, nor others, shall violate the law again. Now certain laws do not rescind the act, indeed, although they impose a penalty properly so called upon those who undertake it. This is because a greater unseemliness appears in the act than in the effects, and frequently the inconveniences which follow rescinding are greater than the inconveniences of the act itself, when, after having once been undertaken, it remains valid. And this happens primarily in regard to those acts by which an obligation has been contracted towards some person or other, which is valid merely on the basis of the natural law, not the civil, an obligation to which satisfaction cannot be accorded, unless an act once undertaken remain effective. But, in truth, that is no law at all, which merely prohibits something from taking place, but still does not rescind it after it has taken place, and does not set a penalty upon the transgressor. Some put in this class the Cincian law, which forbade giving more than a definite amount to an advocate, but did not rescind the gift.24 And yet, in truth, since no one is presumed to have desired that his action have no effect, wherever such a law appears which does not expressly mention the penalty, it is understood that the penalty is arbitrary, or, in other words, is to be modified according to the free choice of the judge, as it shall seem fair to him.
21. It is also customary for those declarations of the supreme sovereignty, whereby they merely signify what may legally be allowed in a civil court of law under a definite kind of act, to be comprehended in the body of the civil laws, and, in common parlance, to be listed under the name of laws. These are, properly speaking, not laws, but permissions, and their effect is not so much that one can legally undertake those acts, since, forsooth, any one whatsoever has the authority to do anything whatsoever which has not been forbidden, at least, by the laws; but, because men had either been forbidden to do certain things previously, or else doubts might have arisen about the legality of the same, so that certainty could be secured regarding the validity of the obligations which can arise therefrom. But if, in this way, something contrary to divine laws be permitted, the effect is not that this may be undertaken without sin, but only that the act obtains impunity in a civil court of law, and there enjoys the same effects which other licit acts habitually enjoy.
22. In regard to the correct application of the meaning of the law to particular cases, wherein lies the duty of the judge, diligent attention is to be paid to what is commonly called equity. This consists in prudently making clear that a certain case, clothed in special circumstances, had not been comprehended by the legislator under the general law. For it happens frequently that an absurdity follows from applying to special cases the letter of the law, because the legislators have not been able to see and make exception for these special cases, owing to the variety and number of them. But, since no one is presumed to have established absurdities by a law, it is thoroughly understood that the legislator had not intended to include such cases, and so, the judge who restricts through equity the universality of the letter, is not setting himself in opposition to the legislator, but rather is prudently gathering his intent by inference from the analogy and sense of other laws. There is also another significance of equity, as of that whereby disputes are settled on the basis of what is fair and good, disputes, that is, which are not expressly defined by civil laws, but are left to the judge or the arbitrator to be decided by comparing the law of nature and other civil laws. Finally private persons as such are said to show equity to one another, when, out of the law of humanity or beneficence, they make a present of what they could exact by the force of civil laws, or else give up something of their right.
23. Now it is a dispensation when, in a definite case, individuals who otherwise were bound are freed by the supreme authority from the obligation of a civil law as such. It is in the hands of the legislator to exercise this, who, since he may utterly abrogate his own laws, can undoubtedly suspend their effect in the case of a definite person. Now a dispensation differs from equity in that the judge is altogether bound to employ equity, to such a degree, that, if he had followed the bare letter of the law in a case where there was room for equity, he would be judged to have acted contrary to the intention of the legislator. But a dispensation, in truth, depends upon the mere grace of the legislator, and failure to grant it furnishes no cause for complaint. Equity makes clear that a certain case had not been included by the legislator under a general law; but dispensation sets a person free from his obligation, who was bound by that law. In granting a dispensation, however, the legislator will use prudence, lest, in granting it promiscuously, he either be enervating the force of the law, or else, without very serious grounds, he be giving others who are in the same condition cause for envy and indignation, because, though equal in condition, they have not been held worthy of an equal favour.
24. Something must be added now also on the subject of the Law of Nations, which, in the eyes of some men, is nothing other than the law of nature, in so far as different nations, not united with another by a supreme sovereignty, observe it, who must render one another the same duties in their fashion, as are prescribed for individuals by the law of nature. On this point there is no reason for our conducting any special discussion here, since what we recount on the subject of the law of nature and of the duties of individuals, can be readily applied to whole states and nations which have also coalesced into one moral person. Aside from this law, we are of the opinion that there is no law of nations, at least none which can properly be designated by such a name.25 For most of those matters which the Roman jurisconsults and others refer to the law of nations, for example, matters having to do with modes of acquisition, contracts, and other things, pertain either to the law of nature, or to the civil law of individual nations, which, in matters of that kind, coincides with the civil laws of most peoples. These, however, do not rightly constitute a special species of law, since, forsooth, the nations have those rights in common with one another, not from some agreement or mutual obligation, but they have been established by the special order of the individual legislators in the individual states, and so can be changed by one people without consulting others, and are frequently found to have been so changed.
25. Finally, there are wont to be listed under the name of the law of nations among most nations (at least those which claim the reputation of being more civilized and humane), those customs which, by a certain tacit consent, are habitually employed, especially in regard to war. For, after these more civilized nations came to regard it as their greatest honour to seek glory in war (that is to say, to exhibit their superiority over others in this, namely, that one was bold enough to kill many men, and skilful enough to do it dexterously), and so unnecessary or unjust wars were entered into; under these conditions, in order to avoid exposing their ambition to excessive ill will, if they exercised the full licence of a just war, most nations have seen fit to temper the harshness of war by some humanity and a certain show of magnanimity. Hence came customs regarding the exemption of definite things and persons from the violence of war, a fixed way of injuring foes, a fixed way of treating prisoners, and the like. And, if any one in legitimate warfare disregard these exemptions, in cases, of course, where the law of nature allows such an act, he cannot be said to have contravened a valid obligation; he is merely, as a general thing, blamed for his rudeness, because he has not conformed to the customs of those who regard war as one of the liberal arts, precisely as, among gladiators, he who has wounded his opponent contrary to the rule of the art, is accused of being maladroit. If, therefore, a man wage just wars, he can conduct them by the law of nature alone, and he is not bound by any law to these customs just mentioned, unless of his own accord he so wish, in order to obtain some advantage of his own. But he who ravens in unjust wars ought to observe those laws, so that he inflict his injuries with at least some kind of moderation. But they are assuredly wasting their efforts who collect what the nations in common with one another habitually practise, especially in war, and conclude these matters to be legitimate on the basis of the law of nations; as if, in truth, there were less injustice, cruelty, and avarice in what is found to have been done often by those whose crimes have gone unpunished among men, because they had no one over them, and so they have not been vehemently castigated, since the rest of men do not shrink from perpetrating the same crimes. And, assuredly, if some special law ought to be set up on the basis of the common usage of nations, the very first heading in it will treat of the legitimate waging of wars for mere ambition, or with the prospect of making gain, than which nothing is more frequent among most nations.
26. But, as regards legates, who commonly constitute one of the principal headings of the law of nations, even those who have been sent to the enemy, if, indeed, they have the appearance of legates, and not of spies, as long as they are in the presence of him to whom they have been sent, and contrive no hostile acts against him, for example, in exciting treachery, sedition, and the like (although, perchance, in any ordinary manner they seek by negotiations the advantage of their own lord rather than that of the other), they are inviolable by the very law of nature. For, since persons of that kind are necessary, in order to win or to preserve peace, which the very law of nature bids us embrace in all honourable ways, it is well understood that the same law has also provided for the safety of those persons without whom the end which it orders cannot be obtained. But, in truth, the other privileges which are commonly granted to legates, especially those legates who are located in some particular place, rather to spy out the secrets of the other commonwealth, than to establish or preserve peace, I mean such privileges as that their goods may not be attached to secure their debts, and the like, these depend upon the mere grace and indulgence of the one to whom they are sent, and, if it seem to his advantage to do so, he can deny them without violating any right, except in so far as some attention be paid to the consideration that his own legates be treated in a similar way, at the court of another.
27. Now, in general, in regard to laws, it is to be noted that some are affirmative, and some negative. The former, when they require an occasion which is not always and everywhere present, are understood to obligate to the exercise of an action, namely, when it can take place, that is to say, when the object and other requisites for action are at hand. And so, he who from failing to have an occasion does not perform an action otherwise ordered by the laws, does by no means deserve reprehension; nor ought the man who, while striving to the utmost limit of his powers, has been overwhelmed by the mass of the matter, or has failed of success through no fault of his own, have his effort to obey criticised. But the obligation of negative precepts is always uniform, as it were, forasmuch as it demands the giving up of voluntary evil actions, that is to say, things which are not entities, and so do not require an object, a place, and a time.
From the same source, also, as we may add in passing, can be derived this trite principle: “There is naturally no proof of the denial of a fact,” that is to say, direct proof. This is because he who denies that something was done, says that what the doer intended became a non-entity, which has neither cause nor circumstances. Now every proof is made up of causes, circumstances, and indications. If, however, it be denied that a thing was done in a definite time and place, this can be proved indirectly, to wit, if it be shown that he who is accused of the deed, at the time when something is said to have been done, was in another place.
[1. ] The following distinction of law from counsel,pact, and right (§§1–3) follows Hobbes, De cive, chap. 14, §§1–3; cf. JNG, 1, 6, §§1–3.
[2. ] In question are authors who had the legislation of Greek city-states in view; cf. JNG, 1, 6, §2 with references to Isocrates, Against Callimachus; Aristotle, “Rhetorica ad Alexandrum,” chaps. i–iii; and Dionysius of Halicarnassus, The Roman Antiquities, 1. bk. X.
[3. ] Only actions that can be imputed to an agent may be the object of law; see bk. II, Axiom 1, especially §6.
[4. ] Pufendorf takes the idea that natural law is based on the rational and social nature of humanity from Grotius (JBP, Prolegomena) and thus indirectly from Stoic moral philosophy (Seneca, On Benefits, trans. Aubrey Stewart [London, 1905], IV, c. xviii), but, to be sure, without accepting that the matter of that law is “acts . . . in themselves, either obligatory or not permissible” (JBP, I.i.10). For Pufendorf the obligatory force of natural law does not arise from rational nature as such, but from divine command. See especially Eris, “Specimen controversiarum . . .,” chap. v, §30, p. 186.
[5. ] Allusion to Hobbes, De cive, chap. 14, §§9–10.
[6. ] Cf. JNG, 6, 1, §15, referring to Plutarch, “Lycurgus,” XV.6ff.
[7. ] Sigismund Freiherr von Herberstein, Rerum moscoviticarum commentarii (Basel, 1571); Haythonus, De Tartaris liber, in Novus Orbis regionum ac insularum veteribus incognitarum, ed. Simon Grynaeus (Basel, 1532), chap. 48; cf. JNG, 8, 1, §3.
[8. ] Exodus 20:2–17; Deuteronomy 5:6–21.
[9. ] Cf. Grotius, JBP, I.i.10: “It is necessary to understand, further, that the law of nature deals not only with things which are outside the domain of the human will, but with many things also which result from an act of the human will.”
[10. ] See bk. II, Observ. 3, §6.
[11. ] Apart from the fear of sanctions, obligation requires above all an inner bond “arising from a consideration of the causes, which should be sufficient, even without the fear, to lead one to receive the command on grounds of good judgement alone” (JNG, 1, 6, §9), as Pufendorf emphasizes (JNG, 1, 6, §10) when criticizing Hobbes, De cive, chap. 15, §5: “God in his natural kingdom hath a right to rule, and to punish those who break his laws, from his sole irresistible power.”
[12. ] Cf. JNG, 1, 6, §18, and Grotius, JBP, I.i.10 and 13. Of course, Grotius does not make the distinction on the score of promulgation: “In this characteristic the law of nature differs not only from human law, but also from volitional divine law; for volitional divine law does not enjoin or forbid those things which in themselves and by their own nature are obligatory or not permissible, but by forbidding things it makes them unlawful, and by commanding things it makes them obligatory.”
[13. ]Dig., I.i.1, §3.
[14. ] Allusion to the Thomist doctrine of eternal law, the rule and measure of divine providence directing all things to their due ends (Thomas Aquinas, The “Summa theologica” of St. Thomas Aquinas, trans. Fathers of the English Dominican Province [London: Burns, Oates & Washburne, 1915], vol. 8, I–II q.93a.1co). According to that doctrine, natural law is the participation of that rule and measure by rational beings (Summa theologica, I–II q.91a.2co).
[15. ] On the idea of natural law as law peculiar to man, cf. JNG, 2, 3, §2, with references to Grotius, JBP, Prolegomena, and Selden, De jure naturali et gentium, I.v.
[16. ] See, for example, the Controversiarum illustrium aliarumque usu frequentium libri tres, I, c. 27, n. 11, by Fernando Vázquez, whom Pufendorf cites in JNG, 2, 3, §4.
[17. ] See, for example, Aquinas, Summa theologica, vol. 8, I–II q.100a.8ad2: “As the Apostle says (2 Timothy 2:13), ‘God continueth faithful, He cannot deny Himself.’ But He would deny Himself if He were to do away with the very order of His own justice, since He is justice itself.”
[18. ] Genesis 1:27.
[19. ] Grotius, JBP, I.i.10.
[20. ] This is aimed against Hobbes; see De cive, chap. 14, §10.
[21. ] Seneca, De ira libri tres, l. II, c. 27.
[22. ] See bk. I, Def. 18.
[23. ] See Ulpian, Liber singularis regularum, I.1.
[24. ] See Rudolf Leonhard, “Donatio,” Paulys Real-Encyclopädie der classischen Altertumswissenschaften, V. 2, pp. 1533–40, especially 1535.
[25. ] Cf. JNG, 2, 3, §23. Pufendorf follows the Hobbesian equation of natural law and law of nations (De cive, chap. 14, §§4–5) and denies—against Grotius, JBP, I.i.14—that the voluntary law of nations constitutes a distinct branch of law (separate from natural and civil law).