Front Page Titles (by Subject) OBSERVATION I: A man can judge properly of things apprehended by the power of his intellect. - Two Books of the Elements of Universal Jurisprudence
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
OBSERVATION I: A man can judge properly of things apprehended by the power of his intellect. - 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).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
A man can judge properly of things apprehended by the power of his intellect.
1. In man there are, as it were, two faculties of the intellect, which it exerts in the case of voluntary actions, the representative faculty, and the judicative. By the former the object is placed before the will as in a mirror, and there is displayed the character of the good which is in it. Since this faculty is regarded as belonging to the class of those which men commonly call natural, in contradistinction from free, and so it is not in man’s power to apprehend things otherwise than as their images present themselves to the intellect, it is readily apparent that neither is there left any room for the laws to make a disposition about this faculty, nor can anyone’s inability either to apprehend some matter at all, or else to apprehend it in another way, be imputed to him. And so it is most utterly unfair to desire, by establishing a punishment, to compel some one to believe that some thing is other than he knows it to be; since, forsooth, assent or faith cannot help but respond to the image apprehended by the intellect. That position, however, is to be restricted in this wise: Unless some one’s supine negligence enters into the case, in that he, who, otherwise, if he had applied due zeal, would have secured the true image of the matter, attends to it but drowsily. And so, in regard to the question of a man forming a right conception of some matter in his mind, there is room for laws and obligation only in so far that he receive information regarding the same, and attend carefully to meditation. But it may happen, and it is apt to do so frequently, that, although a man may with impunity cherish in his mind his own particular view about any matter at all, nevertheless, a penalty is ordained against the one who has openly set it forth, or laboured to spread it among the common mass.
2. In view of all this the decision must be made as to how far it is appropriate for the magistracy to exert force in the matter of enjoining religion upon men. Since, of course, persuasion in regard to things divine is formed on the basis of the intellect’s apprehension, the manner of which is by no means subject to man’s free choice, it is readily apparent that a man cannot be compelled to give his assent to some matter otherwise than as it presents itself to his intellect. For this end, accordingly, only gentle means of persuasion are in place, tortures and violence are in vain, by which, perchance, a simulated confession will be extorted, but it will not be possible to extort a true assent, although by penalties a man can be compelled to receive information and use the means which, otherwise, assent to the matters in question is generally in the habit of following. Now where these are of no avail, civil sovereignty is applied in vain; especially since it is required that, for a man to give his assent to the Christian religion, a special grace be divinely granted. But, in truth, because the formulas in which religion is publicly presented are of no small concern to the commonwealth, and it contributes very greatly to the tranquillity of the state if all citizens openly profess the same view regarding religion, whose power in exciting or calming emotions is great; the magistracy can rightly, even by threatening to exact a penalty in a human court of law, forbid all who are subject to its jurisdiction to set forth, either in public or in private teaching, anything opposed to that formula which the magistracy has promulgated, as being congruent with the foundation of faith, to be followed by the citizens. To this end it is the accepted custom in some regions, for persons who are to be advanced to public offices to be bound by an oath to a definite confession about religion, whereby they are obligated, as long as they remain members of that commonwealth, to teach or propound nothing in public which is opposed to that confession.
3. Through its judicative faculty the intellect discerns and dictates what, when, and how, action is to be taken, and takes counsel regarding the means best adapted to this end. That faculty is otherwise called the practical reason and the practical judgement (for it is not ours now to inquire into what the force of the intellect is in the bare contemplation of things). Since this faculty is, as it were, the torch of human actions, and when it is not lighted in the proper manner a man must fall; and since, in truth, it can be shaped into rectitude by diligent culture and meditation, so that the cause of delinquency may not arise in it; certainly man ought earnestly to strive, in order so to form the judgement in question, that it correspond exactly to the feeling and intention of him to whom he is bound to render his actions acceptable.
4. Now, although it is our purpose to deal here especially with the good and the evil, the just and the unjust, leaving to another body of doctrine the investigation of the profitable and the unprofitable,1 still it will not be amiss also to touch briefly upon what rules the intellect ought to observe in its deliberation about a profitable judgement. Because, forsooth, there is frequently enjoined upon some one the obligation to act in the manner which he himself judges to be most expedient; and here, indeed, he who through lack of prudence has undertaken what was less profitable, has done badly. In the deliberations, accordingly, which are customarily instituted regarding matters to which we are not bound by some necessity or a definite obligation (necessity, of course, excludes deliberation, and a definite obligation leaves the agent nothing but the execution), it is presupposed as a foundation, that nothing be undertaken wherefrom the same amount, in moral estimation, of evil and of good, or also a greater amount of evil than of good, seems likely to come. The reason for this is obvious. For so much is lost from the goodness of each matter as it has of evil united with it, and so it puts off the character of good, if the evil be equal. Moreover, things of the kind about which we are now speaking are undertaken in order that we may acquire therefrom some emolument for ourselves. From this, furthermore, the following consequences flow: (1) If the matter under deliberation seems to have in moral estimation an equal efficacy for good and for evil, it is then, and only then, to be chosen, if the good have somewhat more of good about it than the evil have of evil. (2) If it should appear that the good and the evil which may proceed from the matter in question are equal, then, and only then, will the thing have to be chosen, if its efficacy for good be greater than its efficacy for evil. (3) If it should appear that both the good and the evil are unequal, and the efficacy of the matters no less unequal, the thing is then, and only then, to be chosen, if the efficacy for good be greater in comparison with the efficacy for evil, than is the evil itself compared with the good, or if the good be greater in comparison with the evil, than the efficacy for evil in comparison with the good. (4) If the good no less than the evil of each matter, as well as the efficacy for each, be uncertain, there should be abstention from both, if that be possible. (5) Even such things as may apparently be added by accident to our intent, are to be borne in mind, unless the good towards which our action tends be much greater than the evil which is feared; or, in equal good and evil, there be much greater hope of good than fear of evil.
5. Now, in a special way, the judgement of the intellect about actions morally necessary, in so far as the intellect is imbued with a knowledge of laws, is called conscience; although by this name is designated also the reflexive judgement, as it were, about acts, approving things done well, and condemning things done ill, followed as a companion by peace or anxiety of mind, according as conscience bears witness to each matter. For the sake of differentiation we can call the latter consequent conscience, because it follows the deeds of men, and subjects the same to scrutiny; but the former we can call antecedent conscience, which is antecedent to the deeds, declaring what is good, and what evil, and so what is to be done or avoided.
6. Now conscience is either in a good state or in one less good. That which is in a good state, either knows with certainty that it is such, or merely opines it. The former is called right conscience, the latter probable conscience. Right conscience is one that dictates the performance or omission of what is altogether to be done or left undone, or, in other words, one which knows certainly and indubitably that it is in agreement with divine and human law. Probable conscience rests upon an opinion based on reasons which are not thought to be obviously infallible, but only probable, in such wise that it is not regarded as impossible for the opposite side perhaps to be true, although, on the basis of the present reasons, that is not apparent. About right conscience it must be known that every spontaneous action which is done contrary to it, and every omission of an action which it declares necessary, is a sin; since, forsooth, right conscience and the sense of the law intended by the legislator, correspond to one another, and so, what is done contrary to the former, is discordant also with the latter. The same is to be judged of probable conscience, which coincides with right conscience as far as rectitude is concerned, and differs only in regard to the obvious and unshaken knowledge of its own rectitude. For the purpose of moulding this conscience it is well to note the following: (1) In probable conscience, regarding matters which have to be deduced by a somewhat obscure logical consequence, primarily from the laws of nature, when two opinions have been proposed, and, although neither is opposed to the law, nevertheless one rests upon firmer reasons, while the other appears to be safer, whichever one you please may be undertaken. (2) When two opinions have been proposed, of which the one rests upon less firm reasons, the other seems more safe, the safer is properly preferred before the other. (3) In probable conscience a learned man can follow that opinion which seems to him most probable, although to others, perchance, it may not seem to be such. (4) An unlearned man follows most safely the opinion of the more prudent. (5) A man subject to the command [imperio] of another can rightfully do at the bidding of superiors what he does not certainly know to be illicit, although it may not appear to him to be so very commendable. (6) In matters of small moment, if there be probable arguments on both sides, whichever one you please may be chosen. (7) In matters of great moment, if probable arguments present themselves on both sides, the safer side is to be preferred. Hence, in the case of uncertain proof of crime, it is better to absolve than to condemn, if the verdict non liquet be insufficient.
7. That conscience which is in a less good state is called erroneous, disagreeing, that is to say, with divine or human law through an error conceived from an apparent shadow of good, or judging that something is to be done or left undone, which was not to be done or left undone. Now the error in which conscience is circumstanced is either invincible, which a man has not been able to drive away with the exercise of all morally possible diligence; or else vincible, which a man ought and could drive away with the exercise of morally possible diligence. Regarding this conscience it is to be noted: (1) If conscience is circumstanced in a vincible error regarding an evil thing, he who acts according to it is sinning. The reason is because the action, as a matter of fact, is discordant with the law, and he was bound to know the true sense of the law. (2) If conscience is circumstanced in a vincible error regarding an evil thing, he who voluntarily acts counter to the same is sinning. For, although here, that should materially, as it were, come to pass which in itself was to have been done; nevertheless, because the intention of the agent is repugnant to the law with which he thinks his conscience is in harmony, the action in question will be imputed to him as a sin; since, forsooth, the evil intention of the agent makes an action which, materially, as it were, is not contrary to the laws, to appear to be evil in the eyes of the agent. From this it is apparent also that right actions cannot proceed from the erroneous judgement of the intellect, and in the eyes of him who has been persuaded falsely that something is unjust, it is regarded as illicit, as long as he has not corrected that persuasion. Thus he sins who violates a false religion which he himself holds to be true. Thus, as far as in him lay, a husband to whom his own wife has subjected herself in place of another woman with whom he had intended to have intercourse, has committed adultery, and vice versa.2 Thus he lacks very little of the appellation of thief who, with all secrecy, in an attempt to steal the property of a second person, has unwittingly strayed over into his own property. (3) He whose conscience is bound by an invincible error regarding a matter in itself indifferent, that is, if he persuades himself that some matter is forbidden, which is, nevertheless, licit, sins if he acts contrary to that conscience, not if he acts in accordance with the same; or, in other words, he sins if he undertakes it, not if he lets it pass.
8. But if, in truth, the judgement of the intellect hang in the balance, and be unable to discern to which side of the contradiction it ought to give its assent, this is called a case of doubtful conscience. Of this you may know that action is to be taken neither in accord with it, nor contrary to it, because an error is committed in either direction. For in neither case does a man’s own intention agree with the sense of the law, yet this is required for a good action. For he decides to act even if that which he does be contrary to the laws, and so, as far as in him lies, he is violating the laws. There is a relationship between this kind of conscience and that which they call a scrupulous conscience, when an anxious timidity attends upon the judgement of the intellect, lest, perchance, that very thing which one has thought good, be bad, and vice versa. Moreover, when a scruple of that kind rests upon probable reason, action will have to be deferred until the scruple be removed; but the scruple which arises from some weak superstition is to be neglected and cast out of the mind.
9. Absence of cognition in the intellect is called ignorance, which, as far as our purposes are concerned, is divided either on the score of influx into action, or on the score of origin. In the former case it is twofold, one being the cause of what is done in ignorance, the other not. The first of these you may call effective, the second concomitant. The first denies in the intellect that knowledge by which, had it been present, the action would have been impeded; as if Abimelech had married Sarah, whom he would never have wished to marry had he known that she was married.3 The second denies the cognition which would not have impeded the deed, in such wise that a man would have performed the deed none the less, even if he had known what he did not know: as if one has unexpectedly killed his enemy, whom he would none the less have wished to kill, even if he had known that he was in that place where he is hurling the missile by chance. Such a deed is properly said to be committed by the ignorant, as that which arises from effectual ignorance is said to be committed simply out of ignorance.4
But, on the score of origin, ignorance is divided into voluntary and involuntary; the former being called by some consequent and vincible, the latter antecedent and invincible. It is the former (whether it be directly willed and striven for, or contracted out of lethargy) when a man does not know what he could and ought to know; it is the latter when one does not know those things which he neither could know, in this matter or in that, nor was bound to know. By others the former is styled ignorance of the law or of universals, as the latter is styled ignorance of the fact or of particulars. Moreover, insuperable ignorance is such either in itself, but not in its cause; or else in itself, and at the same time in its cause. It is the former when a man in the very action, indeed, is unable to overcome the ignorance from which that action proceeds; nevertheless, he is at fault because he fell into such ignorance. Thus, frequently, he who sins through drunkenness, clearly does not know what he is doing; nevertheless, he is at fault, because he does not know it.5 It is the latter, when one is not merely ignorant of those things which he could not know before the action, but also was not to blame for remaining in that ignorance, or falling into the same.
[1. ] Cf. JNG, 1, 3, §7. “Another body of doctrine” refers to prudence (phronesis), which concerns “the successful management of one’s own actions and those of others, with an eye to the security and welfare,” in contradistinction to moral science, which “concerns the rectitude of human actions in their order according to laws” (see preface, note 5). The following rules of “deliberation about a profitable judgement” rest on Grotius, JBP, 2, 24, §5, “Rules dictated by prudence regarding the choice between things that are good.”
[2. ] Allusion to Seneca, De constantia sapientis, chap. 7: “If a man lies with his wife as if she were a stranger, he will commit adultery, but his wife will not”; cf. JNG, 1, 3, §16.
[3. ] Genesis 20.
[4. ] This discussion of ignorance, the distinction between deeds committed by the ignorant and those committed out of ignorance, likewise the distinction between (inexcusable) ignorance of universals and (excusable) ignorance of particulars, rests on Aristotle, Nicomachean Ethics III, 1110b19–1111a21; cf. JNG, 1, 3, §10.
[5. ] Cf. Nicomachean Ethics III, 1113b30ff.