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• Introduction
• A Note On the Text
• Abbreviations
• Preface
• The Elements of Universal Jurisprudence By Samuel Pufendorf Book I
• Definition I: By Human Actions Are Meant the Voluntary Actions of a Man In Communal Life Regarded Under the Imputation of Their Effects.
• Definition II: By the Object of Moral Actions Is Meant All That With Which They Deal.
• Definition III: Status Is a Suppositive Moral Entity In Which Positive Moral Objects, And, Above All, Persons, Are Said to Be.
• Definition IV: A Moral Person Is a Person Considered Under That Status Which He Has In Communal Life.
• Definition V: A Moral Thing Is a Thing Regarded In Respect of Its Pertinence to Persons.
• Definition VI: A Title Is a Moral Attribute By Which Distinctions Are Marked Among Persons In Communal Life According to Their Esteem and Status.
• Definition VII: Authority Is an Active Moral Power By Which Some Person Legitimately and With a Moral Effect Is Able to Perform a Voluntary Action.
• Definition VIII: Right Is an Active Moral Power, Belonging to a Person, to Receive Something From Another As a Matter of Necessity.
• Definition IX: Esteem Is the Value of Persons In Communal Life In Accordance With Which They Are Fit to Be Placed Upon an Equality With Other Persons, Or to Be Compared With Them, and to Be Rated Either Above Or Below Them.
• Definition X: Worth Is the Moral Quantity Or Value of Merchandise Or Things, and of Actions That Are Good For Man In Communal Life, In Accordance With Which They Are Fit to Be Compared One With Another.
• Definition XI: Principles of Human Action Are Those Things From Which It Springs and Upon Which It Depends, and By Which a Human Action Is Brought to Completion.
• Definition XII: Obligation Is an Operative Moral Quality By Which Some One Is Bound to Furnish, Allow, Or Endure Something.
• 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.
• Definition XIV: Authority Is an Active Moral Power By Which Some Person Legitimately and With a Direct Moral Effect Can Perform an Action. 1
• Definition XV: The Affections of a Voluntary Action Are the Modes Through Which It Is Denominated Or Defined In a Certain Manner.
• Definition XVI: A Good Action Is One Which Agrees With Law; a Bad Action Is One Which Disagrees With the Same.
• Definition XVII: A Just Action Is One Which of Free Moral Choice Is Rightly Directed to That Person to Whom It Is Owed.
• Definition XVIII: The Quantity of Moral Actions Is the Estimative Measure By Which They Are Said to Be of a Certain Degree.
• Appendix to Definition Xviii In Which the Moral Sphere Is Explained
• Definition XIX: By the Effect of a Moral Action Is Meant That Which Is Produced By It.
• Definition XX: Merit Is an Estimative Moral Quality Resulting to a Man From an Action Which He Is Not Bound to Perform, In Accordance With Which There Is Owed Him an Equivalent Good On the Part of the One In Whose Favour That Action Was Undertaken.
• Definition XXI: Demerit Is an Estimative Moral Quality Resulting to a Man From a Bad Action Through Which He Is Under Obligation to Make Amends For the Injury Done to a Second Person Thereby.
• The Elements of Universal Jurisprudence By Samuel Pufendorf Book Ii
• Axiom I: Any Action Whatsoever That May Be Directed According to a Moral Norm, Which Is Within a Man’s Power to Do Or Not to Do, May Be Imputed to Him. And, On the Contrary: That Which Neither In Itself Nor In Its Cause Was Within a Man’s Power May Not
• Axiom II: Any Person Whatsoever Can Effectively, Or With the Obligation to Perform Them, Enjoin On Someone Subject to Himself Those Things to Which His Authority Over the Other Extends Itself.
• Observation I: A Man Can Judge Properly of Things Apprehended By the Power of His Intellect.
• Observation II: From an Internal Principle a Man Can Move Himself to Undertake Or to Leave Undone a Certain Action.
• Observation III: A Man Is Destined By Nature to Lead a Social Life With Men.
• Observation IV: Right Reason Dictates That a Man Should Care For Himself In Such a Way That Human Society Be Not Thrown Into Disorder.
• Observation V: The Law of Nature Alone Is Not Directly Sufficient to Preserve the Social Life of Man, But It Is Necessary That Sovereignties Be Established In Particular Societies.

DEFINITION XVII

A just action is one which of free moral choice is rightly directed to that person to whom it is owed.

• Universal and particular justice.
• Distributive.
• Commutative.
• Vindicative.
• Injustice.
• What a wrong properly is.
• A wrong comes from free moral choice; where also the subject of fault is treated.
• He who consents suffers no wrong.

1.Justice can be considered in a twofold aspect, as it denotes either the person, or the action. On the basis of the former kind of justice, he alone deserves the designation just, who has maintained a constant and perpetual will to give each man what is due him;1 on the basis of the latter kind of justice, even a single and solitary action, rightly applied to the object, is called just. We shall be concerned here much more with the latter significance than with the former. When, therefore, of our free moral choice we give a second person what is due him, but particularly when we rightly apply an action to a person to whom it is due, this is called a just action.2 Now something is due a person either on the basis of an imperfect right, which, as we have said above, is also called an aptitude, or else on the basis of a perfect right. The right application of actions, both those which are pure, as well as those which are united with the transfer of some property to persons who had merely an imperfect right to its possession; as also the application of actions not coming, under the relations of exchange, to persons who have a right to them, we shall call universal justice, as when one helps with counsel, effort, or property, a man’s action, and displays the due offices of piety, reverence, and gratitude towards those to whom he is bound to display them. This justice looks merely towards rendering to the other person what is due him on any score whatsoever, without considering whether that which is furnished equal the cause for which it is due, or be less. Thus, a man satisfies the duty of gratitude, if, as much be returned as his means allow, even if the benefaction, perchance, has far surpassed that. But the right application of actions which enter into exchange, or by which some property to which one had a right is transferred to another, will be called particular justice.3

2. Furthermore, this right arises either for individuals, on the basis of a pact, tacit or express, entered into with some society, having as its end that they become members of the same; or else for a society, on the basis of the same pact with individuals, so as to add them to itself as members; or else, finally, in regard to other matters or actions entering into exchange. The right application of those things which are due on the basis of the pact of a society with a member, or of a member with a society, to the end already mentioned, is called distributive justice. For whenever one is received into a society, such a pact is either expressly or tacitly entered into between the society and the member to be received, namely, that the society, indeed, is willing to give the member his fair share of the goods which properly belong to the society as such; and the member, on his side, is willing to bear his fair share of the burdens which make for the preservation of the society as such. Now the determination of the fair share of the goods to be assigned the fellow-member is made according to an estimate of the effort or expenses incurred in preserving the society as such, when these are considered in proportion to the effort or expenses incurred by other members of that society. As, on the contrary, the determination of the fair share of the burdens to be imposed upon the member, is made according to an estimate of the advantages, which that member receives from the society, considered in proportion to the advantages received by other members from the society. And so, since for the most part one member contributes more towards the preservation of the society than another, and one person also derives more advantage than a second from the same, it is readily apparent why, in distributive justice, a comparative equality is to be observed. Such comparative equality consists in this, namely, that in the proportion in which a man’s dignity or merit stands in relation to the dignity or merit of a second person, so his reward should stand in relation to the reward of that second person. Thus, for example, if six things are to be divided between Gaius, Seius, and Titius, assuming that the merits of Titius surpass the merits of Gaius threefold, and those of Seius surpass them twofold, Gaius will have to be given one, Seius two, and Titius three. Nor is it required, for this equality, that the reward simply equal the merit of the person; but it is sufficient that the proportion which the dignity of the one maintains to the dignity of the other should be kept also in the proportion which the share of the one, in the common property, maintains to the share of the other. The same principle must be observed also in imposing burdens. But, in truth, the assertion made by some, for the purpose of overthrowing the respective equality which is observed in this species of justice, to the effect, namely, that, “Out of what is my own I can distribute less to the one who deserves more, and give more to the one who deserves less, provided only I give what I have agreed to give,” at the same time quoting from the Gospel the pronouncement of the Saviour, has assuredly nothing to do with the case.4 For, in the example adduced, it is shown that he who, out of liberality, has given some a reward greater than their desert, provided only he does not deny to the rest the just reward which they had bargained for, is not sinning against the commutative justice which governs that contract of letting and hiring. But what has this to do with our distributive justice, in which a fair share is to be assigned of a thing to which several have, as it were, a right unequal in point of degree? Now the word “distribute,” occurring in that example, by no means indicates a pertinence to distributive justice, but that there were several hired men, to each of whom his own reward was to be given.

3. But, in truth, the right application of those things which are owed on the basis of a pact, concerning things and actions entering into exchange, is called commutative justice. Since those pacts look to this, namely, that, in return for my property or action entering into exchange, I should receive from a second person a piece of property or an action of equivalent value, it is readily apparent why this form of justice demands simple equality, whereby the price of a second thing or action ought to correspond, exactly as its moral evaluation goes, with the price of the thing or action coming into exchange.

4. Now, in truth, what is called vindicative justice, which has to do with imposing punishments, does not square exactly with either species of distributive justice. But, in a misdeed, there are to be kept accurately distinguished the essential badness of the action in itself, and the damage done the second person thereby, punishment corresponding properly to the former, and restitution of the damage, to the latter. In making amends for the damage, the procedure is, that, what one loses by the other’s misdeed, whether it be still in the possession of the wrongdoer or has perished, that, or the same amount, should be taken from the wrongdoer and given to the one who has suffered the loss; and that this be done in such a way, that, simply out of the goods of the wrongdoer, amends are made for what loss the other has incurred, due to his fault. But in the matter of imposing a punishment, this, indeed, is certain, namely, that it cannot be inflicted, except in view of some misdeed, but when it is to be inflicted, and to what degree, or of what kind it shall be, is to be decided, not so much from the very nature of the misdeed, as from the advantage redounding therefrom, either to the wrongdoer himself, or to society. For it is repugnant to reason to have one man impose some evil upon another man for any cause whatsoever, when, in so doing, he considers nothing but the pain of the sufferer. Therefore, just as, for the sake of preserving society among men, the principal laws of nature in practically all states had to be given the force of civil laws, so that those, for whom otherwise reverence for the Deity would prove to be too ineffective a stimulus to doing their duty, could be compelled to observe these laws also from fear of human violence; so also every punishment in a human court of law ought to aim at that same mark. And so, since nature defines neither the quantity nor the quality of punishment, and altogether does not allow one man to exact punishment from another, except in the respect just mentioned, he who has tempered punishments well to that end will rightly administer vindicative justice. And hence punishment is properly owed, not to the wrongdoer, as something which cannot rightly be denied him (unless, perchance, in so far as he is to be reformed thereby), but to society; and if, in that case in which it ought to have been inflicted, it be neglected, a wrong is not done to the delinquent, but to society, which is disturbed by that kind of impunity or bad dispensation of punishment. And, in the quantity of punishment, to which the public utility sets the measure5 (just as the character of the evil-doer sets the measure to his castigations or corrections), a wrong is not done the delinquent, if he undergo the degree of punishment which he knew had been set for the degree of his misdeed (if, indeed, he had not been impelled to the wrong by the very one who exacts the penalty), even if, perchance, the punishment, absolutely considered, may seem more severe than the wrong done. For a man has no right to demand that another should take cognizance of that danger which he voluntarily brought upon himself, although he might easily have avoided it. And so we feel that vindicative justice is by no means violated by the general who inflicts a previously announced and promulgated penalty of death, even for the theft of a hen, if, indeed, he has decided that it is for the public good to have the security of the defenceless provided for by such a severe punishment. But, where that end which I have mentioned is not regarded, or can be obtained more conveniently in some other way, in our judgement the punishment not only can be omitted with propriety, but even ought to be omitted.

5. From what has been said, it is easily understood what an unjust action is, that is to say, one which, on the basis of free moral choice, is in an evil way applied to a person, to whom a different action was due, or, when what was due a person is denied him. For we act unjustly, when we inflict upon a second person some evil we did not have the authority to inflict (now good things are of such a nature that they may be given any one whatsoever, even without cause, if this be without harm to a third person), or deny, or take away, some good which was due him (for, if his act does not involve damage to others, we cannot inflict upon a man the evils which he has deserved, without doing him a wrong). And so, an unjust action either inflicts what it ought not to inflict, or takes away what it ought not to take away, or denies what it ought to give. (For, also in a moral sense, the denial, or the neglect of an action due, is regarded as an action.)6

6. Now an unjust action, if, indeed, it be inflicted upon a second person by free moral choice, together with a breach of right which properly belongs to the second person is very commonly called by the single word injury. In order to understand this accurately, it should be known that a man can be injured in a threefold manner, either by being denied what he ought to have, or in having taken from him what he now has, or in having some evil done to him, which one had no authority to inflict upon another. In regard to the former method, it is to be observed that something is due somebody, either on the basis of the mere law of nature, in such a way, however, that he does not have a perfect right to it, such being the duties of humanity, beneficence, and gratitude; or else, on the basis of a pact, and this either a special pact, or else contained in our obligation to the civil laws, by which we bind ourselves to supply that which the civil laws bid us furnish to a second person. If the latter be denied some one, it is properly called injury; but not, if the former be denied him, even if there be a sin against the law of nature. Nor, by the very law of nature, is it permissible to compel a second person by force to furnish those things, at least where one does not properly have command [imperium] over him, unless, perchance, necessity urge; since, forsooth, the genius of those duties requires that they be rendered voluntarily, and without fear of punishment. In this sense it is true that injury is not done except to him with whom one has a pact.7 But, in truth, when, with malice aforethought, an evil be brought upon a man in his despite, whether by stealing some good thing which he possessed until then, or by inflicting in a positive way some evil upon him, an injury is always done, whether a pact had intervened or not. For the law of nature grants to every man whatsoever, that no evil shall be brought upon him by another man, without some antecedent desert on his part; and a man has not the authority to injure a second person, when he himself has not been hurt, except in so far as the necessity of exercising command [imperii] has required that of him.

7. Also, in order to be an injury properly so called, it is required that it proceed from the exercise of a free moral choice. And so it is not customary to list under the head of injury hurts of such a kind as come about by some chance happening at the hand of a man who did not know what he was doing, and did not intend to do it; for example, if a soldier, while exercising with javelins in his usual place, runs one through a passer-by, or if a tree-cutter, while chopping wood in the midst of his farm, has unexpectedly wounded a stranger who had no right to be in that place (for such things are counted among those evils which are sent upon us out of mere chance, where a complaint cannot be lodged against any man, or a restitution of the damage demanded); or hurts that come about from negligence, which might have been avoided, if, indeed, one had observed due diligence, for example, if a person working beside a public road has hurt a passer-by, without having first given a signal, so that the latter might look out for himself. The same holds true if a man has undertaken some work beyond his powers, by performing which poorly, damage is done to a second person; since no one ought to attempt that in which he knows, or might know, that his weakness or lack of skill will involve the danger of others. A hurt of that kind the jurisconsults commonly call a fault, which is either extremely light, when, by lack of circumspection and deliberation, there is a deviation from that diligence which unusually careful men are wont to show; or light, when the sagacity of careful men of that profession is not exhibited; or else broad, when common carefulness is not manifested. The broad fault and the light fault agree in this with wrong, namely, that they create the obligation of making good the loss suffered by them, an obligation which the extremely light fault does not produce, unless one has expressly bargained for the most exact and special diligence. But those hurts also are commonly excepted from the class of injuries, where the intention is only partial, for example, when one is driven to hurt a second person either from a necessary affection, as hunger, thirst, &c., or from a natural affection, as love, pain, fear, &c.; although, properly, that diminution of the intention does not take away the whole character of the wrong, but merely tempers the guilt.8

8. But that which is to be called a wrong must also be done to a person against his will. For it is a trite saying even in common speech, that he who consents suffers no wrong. This is because the good thing which I take away from a second person with his consent, or the debt which I do not pay with his consent, he is regarded as having presented me with. But who will say that I have done a wrong, if I have received what is given? Nor can what a person is willing to have inflicted upon him be looked upon as an evil, since, forsooth, an evil necessarily involves an abhorrence of the will. Some even conclude therefrom that certain ancient barbarians who were accustomed to kill and feast upon men worn out with old age, did not do a wrong, because death was inflicted as a regular custom to which they had given their common consent. And yet no one will deny that the old violated the law of nature, in that, from merely being wearied with the troubles of old age, they were willing to anticipate their fate; not to mention how utterly the savagery of that custom is abhorrent to the common feeling of mankind [à communi sensu].

[1. ] See Inst., I.1, and Dig., I.i.10 preamble: “Justice is the constant and perpetual desire to give to every one that to which he is entitled.”

[2. ] Cf. JNG, 1, 7, §7: “Now justice of actions differs from goodness of actions mainly in this, that goodness denotes simply an agreement with law, while justice includes further a relation to those towards whom the action is performed. Consequently, in our opinion, an action is called just which is applied from previous choice to the person to whom it is owed, and therefore, on this definition, justice will be the right application of actions to a person.”

[3. ] Pufendorf’s distinction between universal and particular justice and the latter’s distinction into distributive and commutative justice follow Nicomachean Ethics V (cf. JNG, 1, 7, §12). The Aristotelian distinction is between universal justice as “exercise of complete virtue in relation to others” and particular justice as exercise of a “part of virtue.” Pufendorf interprets this as a distinction between imperfect duties of humanity and perfect legal duties (JNG, 1, 7, §8).

[4. ] The reference is to the parable of the workers in the vineyard (Matthew 20) and its interpretation by Hobbes, De cive, chap. 3, §6, who tries to reduce all justice to the keeping of faith and carrying out of agreements, thus doing away with the distinction into distributive and commutative (cf. JNG, 1, 7, §§9, 13).

[5. ] For Pufendorf vindictive justice is a part of the sovereign’s prudence. It is the sovereign’s task to interpret the public utility according to his own discretion and subject only to natural law. Such activity does not fall under any species of particular justice but belongs to universal justice, as he points out in a phrase added to JNG, 8, 3, §5, in the second edition of 1684.

[6. ] See bk. I, Def. 1, §2.

[7. ] Hobbes, De cive, chap. 3, §4.

[8. ] This discussion of preceding choice as a necessary element in injury and also the distinction of involuntary harm into misfortunes and errors according to the degree of ignorance derive from Aristotle, Nicomachean Ethics, V, 1134a17–1136a9. Cf. JNG, 1, 7, §16, which also cites Michael of Ephesus’s commentary on that passage (Michaelis Ephesii in librum quintum Ethicorum Nicomacheorum commentarium, modern edition, Michael Hayduck, ed., in Commentaria in Aristotelem Graeca 22.3 [Berlin: Reimer, 1901]). On the degrees of fault according to the Roman jurists, see Dig., XIII.vi.18 preamble and L.xvi.213.2.