The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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.

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 be imputed to him

(that is, as a matter of desert, yet it is well if that be done as an act of grace on the part of the one who makes the imputation, in case some good has come to pass).

• The order of this book.
• Imputation upon grace, and upon desert.
• Bare imputation and efficacious imputation.
• Just who can impute effectively?
• Good and bad actions are imputed in diverse fashions.
• Just what cannot be imputed?
• Just what can be imputed?
• How are actions of others imputed to us?
• On the communication of actions.
• Is an imputation retroactive?
• Just what failures to perform actions can be imputed?

1. Now that we have thrown light, in our first book, according to the scheme of our plan, upon the definitions of matters contained in Universal Jurisprudence, the next step is, in this book, to look into the principles to which in juridical demonstrations one ultimately ascends. Therefore, in addition to the common axioms1 which, derived from prime philosophy, occur here and there throughout that work, there are found to be here two kinds of principles proper to this discipline, the rational, namely, and the experimental. The truth of the former, their certainty and necessity, flows from reason itself, without the perception of particulars, or without undertaking an examination, merely from the bare intuition of the mind. But the certainty of the latter is perceived from the comparison and perception of particulars uniformly corresponding to one another. These latter we shall call Observations, as we shall call the former Axioms.2 Now, since man is in this world more for the sake of action than for the sake of contemplation, and so it is more necessary for him to act rightly than subtly to contemplate matters which he may approach only with the mind’s vision; it has come about, not without the special providence of the Creator, that the certainty of theoretical verities would have to be extracted from first principles for the most part laboriously, and, as it were, through a prolonged series of consequences; but the certainty of practical matters rests very easily upon an extremely small number of principles, and those most perspicuous, from which, for the most part, these practical matters can be deduced by a simple operation. And this, of course, was so that no one who has even slight intellectual ability, could advance as an excuse for his sins, that, because of the obscurity of the case, it was not vouchsafed him to understand what was to be done. And so it does not appear to us that there should be set up more than two rational principles for this discipline; to wit, A man must render an account of those actions which are within his power to do or not to do, and The obligation to act can be enjoined upon us by the authority of a second person. If any one add to these the principles which are most manifest through common sense and experience, namely, that upon man, to whom it has been given by nature to understand matters, and from an intrinsic movement of the will to bestir himself to action, it has been enjoined by God, to whose sovereignty he is absolutely subject, to lead a social life, and to observe that which, on the basis of the dictates of right reason, makes for the preservation of the same, it will then be easy for any one whatsoever to recognize what he ought to do or to leave undone, especially after civil sovereignties which the necessity of social life required should be established have ratified most of them with civil laws.

2. Imputation, therefore, is when the moral effects of an action proceeding from some one directly or indirectly, or exercised upon him by a second person, are declared by him whom that action regards, to inhere and exert their force actively in the person of the former. Now men commonly make imputation twofold, namely, as a matter of grace and as a matter of desert. It is the former when a man out of benevolence derives upon a second person the effects of the action of some third person, which otherwise that second person could not rightfully claim for himself. Such imputation has place only in matters which are favourable, and not likewise in those which are odious. For just as the nature of good things is such that they can rightly and without a cause be presented to anybody, but evils cannot be inflicted without antecedent demerit; so, if any one should be unwilling to confer some good upon a second person under the name of a pure benefaction, it will be permissible to do it under the designation of some imputed action, which otherwise the second person could not claim for himself. But it is not at all permissible to impute some evil to a second person, unless the second person by his own deed has been made a participant in the guilt. Thus, for example, a prince can rightly impute to a son, not himself conspicuous because of any merits, his father’s benefactions, and in view of them confer upon him honours otherwise not his due. But an innocent son should by no means in the same fashion pay for his father’s misdeeds. Since the case in which children are compelled to lose their feudal holdings on the occasion of felony committed by their parents, does not properly possess the character of a punishment, for they do not have a right to those things except after they have been turned over intact to them by their parents. But our discussion here is principally about the latter kind of imputation, where the cause of imputation inheres in the person to whom something is imputed.

3. Imputation can also be divided into bare imputation, or imputation of simple approval and disapproval, and effective imputation. It is the former whereby we but barely approve or disapprove of some action, in such wise that no effect redounds therefrom to the agent. This imputation can be made by any persons whatsoever, whether they have an interest in the action or not. It is the latter through which the effects of an action put forth their force in the agent, and it is with this that we shall have to deal here.

4. Now actual imputation and imputability, if I may use such an expression, or in other words, for a thing to be imputed in act, and that it be possible for it to be rightly imputed, are very different things. For not all actions which can be imputed are also always actually imputed to the agent, or are they necessarily to be imputed; but that the imputation be actual, and that effective, rests with him to whose interest it was that the action take place or not. Now when he has either not imputed from the outset some imputable action, or afterwards has ceased to impute it, all the moral effects which otherwise were about to redound to the agent from that action expire. Nevertheless, it is to be noted here that, when it is to the interest of several that some action either takes place or does not take place, if one of them has not imputed that action to the agent, nothing is thereby lost to the right of the rest, which remains, indeed, after that waiver, as it were, of the imputation. Thus, as far as I am concerned, I can forgive the man who has done me a wrong; nevertheless, the right of the magistrate and the right of God against the delinquent, which has come to them as a result of that action, is by no means done away with on that account. Thus, even if God has by the act of remission forgiven some one his imputation, nevertheless the right of men is by no means done away with on that account. For, as an example, an accuser can prosecute before a court and a magistrate can put to death a murderer for whom God has already forgiven his misdeed. But that which all who are concerned fail to impute is regarded as not having been done, as far as its moral effects are concerned, since, forsooth, moral effects do not follow except upon the free choice of those who are concerned. Now that a certain action takes place or does not take place, concerns those who are either the object of the action or the directors, that is, those against whom some action is undertaken, or for whose good or evil it is, and who properly possess the authority to direct the action. Thus, if I have done an injury to a second person, and he to whom it was done, and the magistrate, have forgiven me, no other man has further the right to make trouble for me on that score.

5. A distinction, however, is to be observed regarding the imputation of good and of evil actions. Evil actions can always be imputed to the agent by those concerned, when they wish; because both he who prevents them has the right not to be compelled to allow them to take place with impunity, and any second person whatsoever has the right not to be bound to allow the same without some antecedent deed on his own part. But good actions are either deserved or undeserved. The former are followed merely by that imputation which we have just called bare imputation, on the part of those who are concerned. For he who has furnished only what he owed has, indeed, done well, yet he deserves nothing further. But actions hitherto undeserved can be effectively imputed, for, of course, they are adapted to produce moral effects as much in the agent as in him for whose sake and advantage they are performed. In the former, so that he may receive the right to demand compensation for his effort; in the latter, so that he may contract the obligation to pay the second person. In order, however, that this obligation arise in actuality, it is necessary not merely that there be in the agent the intention of doing some good to the second person, but also that the action be one undertaken upon the express or presumed will of the second person to whose use it tends. Otherwise, I am able rightly to repel, as it were, the imputation of a service which is thrust upon the unwilling. But if, by the consent of those whom it concerns, it be determined at how much something is to be imputed, there arises a pact, in which the imputation reaches its limit and has nothing further toward which it may tend in that matter. And so, when a man has accepted the estimate of his action expressed in a pact, there is nothing further left him which can be imputed.

6. Furthermore, the foundation of imputability, or, in other words, the condition in which an action can be imputed to an agent, is that the occurrence or non-occurrence of that action rested with the agent.3 For, after it came to pass that man was no longer to live in such wise that it was permissible for him to do whatever struck his fancy without taking any one into consideration, the next thing was that some account could be demanded from him concerning those actions which he himself had the faculty of doing or of neglecting. From this it is patent that the following cannot be imputed to a man: (1) Those things which are contingent upon a physical necessity, or those things which are contingent upon natural causes; except in so far, perchance, as a man for producing that effect has applied things active to passive, or in some way started the cause which directs those things to determining that effect, as if some one, for example, should obtain by prayers from God that it should rain during a drought. (2) Actions of the vegetative faculties in themselves; except in so far as one has suggested the object to them. Thus, from the fact that one has been endowed by nature with a body robust, vigorous, tall, &c., no one can demand that something be directly imputed to him. And, on the other hand, it cannot rightly be regarded as a fault for any one to have a body weak, frail, and tiny, if, indeed, no fault of his own has intervened therein. Here come in also the other things which we have from nature without any effort on our part; suppose, for example, that one rejoices in a genius somewhat active, or somewhat slow, in senses somewhat keen, or somewhat dull, &c. (3) Compulsory actions, that is, those by which a man is compelled to accommodate or to apply his members by the inescapable force of a stronger than himself, and he himself was not to blame for the possibility of its being applied to him. For just as no one can obligate a second person by his bidding or authority, or in any other way, to do something of that second person’s own accord contrary to the laws; so, if, by the exercise of force, the first person has applied the other’s members to some act otherwise illicit, the first person cannot cause this to be imputed rightly against the second. And so no one can be compelled by another person to commit a misdeed, provided he himself does not wish to commit it. Thus, for example, even if a virgin be compelled by force to accommodate her members to the lust of a stronger action, the violence of which she could not ward off from herself; nevertheless, against her herself nothing can be imputed for that reason, unless, perchance, her own fault brought her to that place where she had foreseen that force would probably be brought to bear upon her. (4) Things which can neither be prohibited by our powers, nor advanced or accomplished, if, indeed, that impotence has not been contracted by our fault. This is the source of that common saying: “There is no obligation to do the impossible,” or, in other words, “No one is bound to the impossible.” And just as the fact that a man has not performed things which were impossible to him (if, indeed, he was not to blame that they were such), or the fact that he does not understand what is beyond his ability, cannot be imputed to him, and, in consequence, for that reason there is no room for punishment in his case (from which fact that other principle also results, namely, that the objective of the laws must be possible for those for whom the laws are enacted); so no sane person is reckoned as having charged the impossible upon any one. And so, in human laws, in testaments, and in contracts, one departs from the exact meaning of the letter, if it involves something impossible. Thus, also, sheer misfortunes are not imputed, unless one has specially obligated oneself to meet them. (5) The actions of those who do not enjoy the constant use of their reason, unless they have ruined it by their own fault. Such are the mad, whose actions are regarded morally as null; likewise infants, before their reason begins to exert itself in a very clear fashion. (6) What has been committed out of concomitant or effective ignorance insuperable in itself and in its cause.

7. But, on the other hand, there can be imputed not merely deeds which are done of previous knowledge and of full and deliberate intention, but also those done of imperfect intention; suppose, for example, when the mind has been shaken by some very violent emotion. For by the right use of his reason a man might have reduced that emotion to order, and he does not properly make it an involuntary action, unless, perchance, the object by which he is excited brings upon him a terror too great for human steadfastness. And so an excuse on the part of a thief that the thing so greatly pleased him that he could not keep away from it, would be ridiculous. Just as those things, also, that proceed from a habit which has so firmly set the mind in one direction that a man can scarcely act otherwise, and often does not know when he is acting badly, are not excluded from imputation. For it rested with the man himself not to contract such a habit. There can also be imputed not merely those things in which it is in our power [potestate] at the present moment either to do them or not to do them, but also those, the faculty of performing which was formerly in our power, but has been lost by our own fault; or those which, in the present status, indeed, are impossible for a man, in the circumstance, however, that his inability to perform them now is due to his own fault. Thus the man who by his own fault has brought himself to that point (supposing, for example, this to be due to petulance or idle curiosity, where, if he had employed due diligence, he might have foreseen that force would be brought to bear upon him), can have imputed to him those bad actions to which he was forced while in that state. For he who has voluntarily admitted some act is reckoned as having also consented to all those things which he might have foreseen would follow from that act; and so he who is bound on the score of the act is also bound on the score of that which has followed by the force of the act; even if, when once that act has been committed, the effects depending thereon could no longer be prevented or stopped. Nay more, even though a man be effectively ignorant that there will emerge from the illicit act, which he knowingly commits, what does emerge thereafter, he will, nevertheless, not be free from all imputation of those consequences. And yet those things which have followed an act in an extraordinary fashion and contrary to the common course of affairs, which also would certainly have happened, even if that act had not preceded, cannot be imputed. From this source arise those common sayings: “A man is reckoned to have been willing to have brought upon himself that from which he knowingly did not turn aside, when he might have done so conveniently”; nor does it seem that what a man has cast himself into, or from which he can extract himself, is in a moral judgement to be regarded as a peril. Likewise, “He who has always acted guilefully so as not to have is to be treated as if he had; and he who has dissipated his resources through luxury or ambition, alleges with no effect an inability to make payment to his creditors.”

Finally, those things also can be imputed which were contracted by voluntary or consequent ignorance, of one’s own accord, or by supine negligence, or which were committed out of ignorance of the law or of universal principles; especially those things which proceed from ignorance of the common precepts of the law of nature, of such, namely, as a man who enjoys the use of reason cannot be invincibly ignorant, although, when ignorance has crept upon a man through inadvertence, he is in so far excused because of the absence of evil intent.

8. Now not merely are those actions imputable to us which proceed directly from us, but also those which are undertaken by others in such a way that we also concur in the same. For otherwise the moral effects of bad actions do not pass over from person to person without fault or culpable omission on the part of the second person. Thus, therefore, things can be imputed to us for which we give the order, for which we give advice, to which we furnish the requisite consent, when we supply a place of refuge for a crime, or knowingly help it on, give permission without which the other could not act, do not hinder when we can and ought, by our example incite a second person to the deed which otherwise he would have left undone, &c. And this imputation can be for the whole, if that deed otherwise would altogether not have taken place except for us or another who would have furnished the same service; or else, in proportion to the degree of our influence upon the action. Thence come these trite sayings: “A man is himself reckoned to be the author of that which he does through the instrumentality of another”; “We make our own that to which we impart our authority [autoritatem]”; “What has been done by a second person at our bidding along with others, regarding matters which concern us, binds us ourselves.” Likewise, “Whatsoever action put into execution by a second person, which he would not have undertaken at all without us, and would not have been able to undertake, is reckoned as our own, as far as its moral effects are concerned.”

9. Now it is to be observed that the deeds of some can be imputed to others, then, and then only, if there exist a certain mutual community among them in regard to the same. This comes about in a twofold way; either if they concur in a special way regarding the production of some definite deed, although in a different way of acting, for example, that the one concurs physically, the other morally, which is the case in most of the examples already enumerated; or else if they constitute one body, so united to one another by a pact, that whatever the whole body as such wishes, each and all also of the same body are understood to wish, because, in the case of those things which concern the whole body, they have each made their own will to depend entirely upon the will of the body, or of those who rule it. For, as is shown elsewhere at greater length,4 those who unite to form a society having the likeness of a single moral person, each and all obligate themselves to be willing to hold valid whatever that person or council upon which authority to transact the public business of the society has been conferred, has done regarding the affairs of the society, and so, to recognize its acts as their own. And these are no more mere legal fictions than that all men united in a society can be obligated by orders of a single person. And so it comes about that the individual members are held for a debt contracted in the name of the society. So, what a syndic has done in the name of the people is imputed to the whole people by whom he was appointed. Thus, when a prince or a commonwealth makes war upon a second prince or commonwealth, the separate individuals living under that commonwealth are all regarded as enemies. Thus, when a magistracy, by not rendering justice, has made the debts of private individuals its own, pledges can be taken from any person belonging to that state, and reprisals inflicted upon him. Thus, in the case of David, for whose deed the people were stricken with a pestilence,5 it is not necessary to take refuge in the absolute law of God, who, since He always finds a cause for death in man, can impose it when it so pleases Him; but, because that act, namely, the ascertaining of the strength of the people, pertains to the acts of a prince as such, according to the constitution of states the people also are understood to have consented to that act. And the perjury of Zedekiah was for the same reason imputed to the whole people; and for that reason, when the king makes war on some one, the whole people are regarded as enemies.6 But, as regards the deed of Alexander, who utterly destroyed the race of the Branchidae because their ancestors had betrayed Miletus,7 it is not sufficient to have said that those separate instances of guilt which are derived upon the state from persons individually, expire upon the death of the same, because the same can be continued as long as the deed in question is defended by the state, or satisfaction is not accorded a second person who demands it; but this consideration is rather to be looked into carefully, namely, whether down to that time the Greeks had had any intercourse with that people, from which it could appear that the former had forgiven the latter the misdeed and the debt which came therefrom. For, if the imputation of these things is once remitted, it can never be demanded later on. But if, from the time of the misdeed onward, there had never been peaceful intercourse between the two parties, even though the authors of the crime have long since passed away, satisfaction for the damage done could be demanded; and if those who, in the same moral body, had succeeded to their rights and goods, should refuse it, then by the right of war the same punishments could be inflicted upon them which the authors of the crime had deserved.

10. It is also to be noted here that the imputation of some future deed cannot tend backwards, as it were, unless, perchance, that future deed depend, as the effect from a necessary cause, upon a present or past act of ours, in such wise that he to whom the cause can be imputed, can have imputed to himself also the necessary effect. Indeed, it is by no means absurd for some future act of oneself or of a second person to exert in advance its effects in some one, by imputation, as an act of grace; because, since it is permissible to give any one whatsoever a benefaction gratis, it rests with the benefactor to decide whether that is to be imputed to him upon some ground. But, since evil actions can be imputed only upon desert, it is entirely unsuitable for them to be imputed backwards upon others who had no knowledge of the future act in question, no obligation to avoid it, and, finally, no community of actions with him who committed that deed.

11. Now from the circumstance that a nonentity has no positive affections, it is readily apparent that bare avoidance of moral actions which are bad and forbidden by the laws, cannot be effectively imputed. Hence I do not owe anybody something because he has not injured me. Avoidances, however, of actions licit by civil laws, can be imputed, although they have been prohibited by the mere law of nature, if, indeed, they are especially avoided for some one person’s sake. For he is altogether in my debt for whose sake I do not use my authority, even though it be imperfect. And nothing is better known than that avoidances of actions due and prescribed by the laws, are imputed, although one has done no further evil. The reason for this is that those avoidances which we have mentioned, with the exception of the first, are reckoned as positive moral entities, and so are suitable to produce also positive effects.

[1. ] According to Aristotle, the common axioms which are universally valid in any discipline—in contradistinction to those peculiar to individual disciplines—are the principles of contradiction and of the excluded third. Aristotle, Posterior Analytics I.11, 77a10,22 in Analytica priora et posteriora; Metaphysics, IV.3.

[2. ] The distinction between rational and experimental principles is taken from Weigel’s Analysis Aristotelica. See preface, note 7, and Analysis Aristotelica, sect. II, chap. ix, §1.

[3. ] The idea that imputability rests on rational free choice and likewise the reasons for exclusion or diminution of imputability (in §§6–7) derive in general from Aristotle, Nicomachean Ethics III.1–5 and V.7–8 (1134b20–1136a9); see Pufendorf’s references in JNG, 1, 5, §§7ff.

[4. ] See bk. II, Observ. 5, §2.

[5. ] 2 Samuel 24.

[6. ] 2 Kings 25; 2 Chronicles 36:13ff.

[7. ] The Branchidae were a Milesian priesthood who administered Apollo’s oracle at Didyma near Panormus. Although their friendly attitude toward the Persian conquerors did not prevent the final destruction of their temple and oracle during the sacking of Miletus in 494 b.c.e. and the deportation of the priesthood to Persia, Alexander the Great is said nevertheless to have seized the descendants during his Persian campaign and to have punished them for the high treason of their ancestors. (Friedrich Cauer, “Branchidai,” Paulys Real-Encyclopädie der classischen Altertumswissenschaften, III.1, pp. 809ff)