The Online Library of Liberty

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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.

OBSERVATION II

From an internal principle a man can move himself to undertake or to leave undone a certain action.

• An act of the will.
• A spontaneous action.
• An allowed action.
• Compulsion.
• Free choice of will.
• The will commands man’s faculties.
• The will cannot be compelled.
• The will can conform itself to the norm.
• Whence it comes that it is capable of obligation.
• Where obligation is wanting the will is free.

1. Since man was to be made by the Creator an animal to be governed by laws, he had to have a will as an internal moderator of his actions, to wit, in order that, when objects had been placed before him and recognized, he might move himself towards them from an intrinsic principle, without some physical necessity, and might be able to choose that which seemed most suitable to himself. This will is conceived as exerting itself through two faculties, as it were, through one of which it acts spontaneously, through the other, freely. To spontaneity are commonly attributed definite acts or movements, of which there are certain interior ones called elicited, certain exterior ones called commanded. Elicited acts are those which are directly produced by the will and received in the same. Some of them are occupied with the end, as volition, intention, fruition; others with the means, as consent, election, and utilization. Volition is applied to an act of the will whereby the will itself simply moves to an end, without regard to whether that be present or absent, or, in other words, simply where an end approves itself to the will. Intention, or moral choice, is an effectual desire to obtain the end, or, in other words, it is an act of the will by which it effectually moves to an absent end and strives to attain it.1 Although there are several grades of this, nevertheless, it is commonly divided into complete and incomplete. Men call a complete intention that whereby the will, after having weighed a matter sufficiently, and without being swept away by the vehemence of emotions, moves to something. They call an intention incomplete when it was accompanied by no sufficient deliberation, or reason was shattered by a whirlwind of emotions. Fruition is the rest or the delight of the will in the end already obtained and present. Now consent is applied to a simple approval of means, as far as they are judged useful to the end; and these means, when in our power, election destines to the obtaining of the end, and utilization employs. They call those acts commanded acts which are entrusted by others to the faculties of the mind for execution.

2. Now to spontaneous actions, which, of course, are undertaken from an internal movement of the will together with previous cognition, are to be referred also those which men commonly call mixed, when a minor non-moral evil, useless or unpleasant, is undertaken for the purpose of escaping a greater evil, which could not be avoided in any other way. For, whatever reduction can be made in a greater evil, otherwise inevitable, is to be reckoned as a gain; and so, in this case, a less evil is in very fact rendered desirable, and one to which the will in its present state spontaneously moves, seeing that for it the avoidance of the whole evil, or merely a part, is the equivalent of a good. This is the source of that trite saying: “Of two evils (non-moral) the less is to be chosen, if it be necessary to undergo one or the other.” Thus, although, for example, the casting of merchandise into the sea is not in itself something desirable, nevertheless, under definite circumstances, it is, as a matter of fact, eagerly done, supposing, for example, if I am unable to save my life in any other way when a storm has arisen. For it is better to make a loss of the merchandise than to lose my life along with it.2 Now judgement is to be passed upon actions, not so much upon the basis of the object, considered alone, but also upon the basis of the end and the circumstances which are here and now present; forasmuch as many of them enter into the very essence of the action, and a single one of them frequently determines the whole nature of the same.

3. For the rest, spontaneous actions depend upon the will, either directly, and these are properly called willed actions, which the will has produced by some positive influx; or indirectly, and these are properly called allowed actions, to wit, those which, although they are undertaken by others, we not directly willing or ordering them, are, nevertheless, reckoned to be our own, in so far as, although we might have done so, we neglected to stop them in the way in which we ought. Now the other actions which are called permissions, involve no morality, since, forsooth, they are pure negations of moral actions. As when God is said to permit the sins which He is not bound to prohibit in such a way that they cannot take place at all. Or when in jest we are said to permit what takes place of necessity, absolute or physical. Thus permission of an action undertaken by a second person which it is beyond our power to prohibit, amounts to nothing (if, indeed, the inability to prohibit has not been contracted by our own fault); as, also, permission of an action taken up without our knowledge; or permission of a good action which in fact I was able, indeed, to prohibit, but ought not to have prohibited. But, in truth, when I permit or grant, for example, a starving person to use my food, this is an action directly willed. Now the permission of legislators was discussed in the preceding book.

4. Moreover, just as the spontaneous involves two things, namely, the intrinsic movement of the will, and a previous cognition; so its opposite, the unwilling, indicates quite as much that which from an extrinsic principle is forcibly required from our locomotor faculty, with reluctance on the part of the will, as what proceeds from a defect of cognition. The latter has been discussed above, and the former is commonly called by the special term compulsion. Under this name we do not properly treat those actions which are undertaken so as to avoid a greater evil, although nothing but the present necessity makes them desirable; but only those to which a man is forced by an extrinsic stronger principle to adapt his members, and does so in such wise that he shows his aversion and dissent by signs, or principally by actual resistance. Such resistance is presumed in a civil court of law to have been present in regard to any actions or passive states whatsoever, which are commonly not thought of as being allowed spontaneously, where all signs of actual consent are lacking; and this is called by some interpretative resistance. As when, in the divine law, a virgin with whom one has lain in a field, away from the presence of onlookers, is judged to have suffered force against her will.3 Now something is compelled either in itself but not in its cause, when a man is circumstanced for the present in such a status that he is unable to repel the force brought to bear upon him, and yet was to blame for coming to that state; or in itself and in its cause at the same time, when a man was not also at fault for having come to such a status as that in which something could be forced upon him by violence.

5.Liberty is a faculty of the will, which, assuming all things requisite for action, is able, among several objects set before it, to choose one or several, and reject the rest; or, when one thing is set before it, to admit or not admit it, do or not do it. Now, in a special way, they call the faculty of choosing one or several out of a number of objects, the liberty of specification or contrariety, and the faculty of having to do with the choice of rejection of one object only, the liberty of contradiction or of exercise. Liberty, therefore, superadds to spontaneity, partly the indifference of its own acts as far as regards their exercise, in such wise that the will does not necessarily elicit the second of its acts, namely, the act of willing and of being unwilling, but, in regard to the particular object proposed, it is able to choose either one it pleases, although, perchance, it has more propensity towards this one than towards that; and partly, free determination, in such wise that the will, from an intrinsic impulse, elicits here and now either one of its two acts, namely, the act of willing or the act of being unwilling.

6. Now it is well established that the will maintains command [imperium], as it were, among the faculties of man which, indeed, are capable of that direction. For there are those which altogether reject that free regimen of the will; such as the forces of the vegetative soul, preserving a natural mode of acting which it is not given man to change, or, granted all things requisite for acting, to suspend the exercise of their actions. Merely the application to oneself of the object has been left the will, and when that happens through the medium of the locomotor faculty, it is in the power of the will to turn this faculty speedily or slowly to the service of these forces; in such wise, nevertheless, that the times when nature desires the application of the object, do not depend upon the free choice of the will. Thus hunger and thirst press upon us, not when it pleases a man, but when his more solid or more liquid sustenance has been consumed. But a man may also furnish these forces with an object more or less congruous from which they may take substance for increase or decrease; in such wise, however, that when once the object has been applied, there is no longer room for the regimen of the will. Thus it rests with a man’s free choice to supply food of good or inferior quality to his stomach; but the stomach, when once the sustenance has been placed within it, treats it in the way naturally implanted within itself, and not according to the free choice of man. Internal and external senses, when the organ is rightly disposed, cannot but perceive an object applied to them, and judge of it, just as it appears to them, although, by the intervention of the locomotor faculty, the will is able to apply objects to these senses or to take them away. It will be permissible to apply the same principles to the intellect. For, in truth, the will exercises absolute command [imperium] over the locomotor faculty, not only when that has been left to itself, but also when it is impelled by a desire of the senses. For the will has command also over the desire in question, although not so peaceful a command, nay, from time to time the emotions within a man rise up in tumults which require a great effort to suppress. However, victory is never to be despaired of for the will, when it has applied its forces rightly, even when the emotions, through lapse of time, or by habit, have become strong. But, in the case of those whose mind has been disturbed through disease, there is no longer room for reason, nor are the actions of such persons regarded as the actions of human beings.

7. But the following also is obvious, namely, that neither by an extrinsic principle, nor by an intrinsic one, can the will be so compelled to avoid something harmonious with itself, or to desire something inharmonious with itself, that absolutely no liberty, at least of exercise, is left it. For external force does not properly bring it to pass that we move towards that from which our will is abhorrent, but it either makes the lesser evil desirable, and so harmonious to the will, by proposing a greater evil, just as it is profitable to be freed from the whole debt on payment merely of a part; or else force persuades us to measure the desire for something and the aversion from it by external indications. All other matters which set out to weaken the will by soft enticements or to terrify it by harsh things, cannot bring to bear any necessity for obedience. The will, indeed, in general always seeks a good, and avoids an evil. Yet there is no particular good, even one commended by the judgement of the intellect, but the will may still neglect it.4 Just as the will is able to seek even that which the reason has judged to be a moral evil, when the appearance of good, which is united to that evil, commended by the judgement of the senses, prevails. Thus, whatever obligation the mind be clothed with, produces only this effect, namely, that reason judges you should act in accordance therewith, not that you are altogether unable in fact to tend in an opposite direction.

8. From all this it readily appears also that man is allowed to direct, in accordance with a notional norm, actions immediately dependent upon the will, or subject to its command [imperio]. For, since the will is a free faculty whose acts are bound by a natural necessity, neither with regard to the specification nor the exercise; and the will is not limited to one way of action always resembling itself, but by some intrinsic impulse, as it were, bestirs itself to action, and itself designates the manner of its own action; it is assuredly manifest that, if some rule pointing out a definite manner of acting should become known (for an antecedent cognition of the intellect is always required, and it cannot be that a man should conform his actions to a norm of which he is ignorant), the will itself can elicit its own acts and direct the other faculties subordinate to it in accordance with the prescription of that rule, if it shall have so desired. About this rule, however, it is presupposed that it should not conflict with the universal inclination of the will, that is to say, it should not order the will to seek after something which is opposed to its own nature, or to turn aside from that to which it naturally goes; or, in other words, that it should not bid the will to turn aside from the good as such, or to seek after the evil as such. For that the first be done cannot in any manner be demanded from the will, even if external acts be able to pretend that which is contrary to the inclination of the will.

9. The consequence of this is that the will of man is fit to receive an obligation from an extrinsic principle, so that it may determine, according to its prescript, the specification and execution of its own acts, and its mode of action. For, assuredly, an obligation presupposes a natural faculty of action and non-action, which, if a man so determine by some physical necessity, that, after the fashion of natural causes, he be utterly unable to strive towards the diverse, he would destroy all the morality of his own actions, just as also he who should restrain men with nothing but physical bonds, would reduce them to the condition of brutes. But, when moral bonds are placed upon the will, that is, when what is to be done unless a man should be willing to expose himself to the danger of undergoing some evil, is indicated by him who has the authority to inflict that evil; then, assuredly, although the natural faculty of tending towards the contrary remains, nevertheless, his liberty is bounded by a moral necessity, so that from the judgement of right reason he will always feel that what has been prescribed, rather than the contrary, ought to be done.

10. But, in truth, where an obligation is lacking, the will is understood to be free, and to have the authority of doing all those things which can be performed by it through the instrumentality of its natural powers. Nay, also, when it has once settled itself upon something, unless some law stands in the way, its own decree has by no means such force that it cannot rightly change or do away with it, whenever it so pleases. This change is reckoned as having intervened, not only when a man has expressly signified it, but even when he has done something which cannot comport with the decree of his former will. But, if there be a definite conflict between the instruments of the conventions regarding the same thing, that agreement which was later reached between the parties to the contract will derogate from the agreements previously reached; because no one is able at the same time to have willed to do contrary things, and such is the nature of acts which depend upon the will, that it is possible to depart from them by a new act of the will, either all together, as in contracts, and in pacts which can be dissolved by the consent of both parties, unless they have been made irrevocable by the law of a superior, or else μονομερω̑ς, that is to say, from one side only, as in testaments and in positive human laws. Here, however, it is to be observed that the decree, which cannot be established except in some definite present status or condition, after these have been removed, cannot be rescinded by the founder, when once it has been duly established. So the law which a prince has passed, he cannot do away with when he has given up sovereignty. Nor does it make any difference, if, in the preceding decree, it was stated that the one to be established later would be invalid. For he was right who said, “It is absurd to wish to invalidate some future statute by an antecedent statute.” For absolute authority cannot constrain itself, nor can that which is by nature revocable be fixed.5 No more so than if a man has declared in his will that, if he should make a new will, it would be invalid. For, although a clause of that kind might, possibly, cause the assumption to arise that, in the later testament, his true will had not been expressed; nevertheless, if that clause be revoked here, the previous testament will be altogether vain. Thus the express addition to certain constitutions (a thing which is not infrequent among princes), that, even if by a special rescript they issue some order contrary to them, magistrates or judges are, nevertheless, not to obey that rescript, has no such effect as though they were unable to abrogate those constitutions again; but the princes signify rather thereby that their later rescripts are not serious, or have escaped from them imprudently; and by this shrewd device they rid themselves of the impudence of forward petitioners, whom they could not bring themselves to deny openly.6 Nevertheless, it should be well observed that the decree of one’s own will can then, and only then, be revoked, when thereby some right has not been conferred upon some second person, of which he ought not to be robbed against his will. And from this it is apparent why, for example, in renunciations, when a man has yielded up his right in a second person’s favour,7 the following words are customarily employed: “Contrary to this instrument no attempt ought to be made by me or my heirs, and if, perchance, one should be made, it is to be held invalid and null.” For by this act I abdicate my right and confer it upon another. Hence, indeed, if anything contrary to that renunciation be decided upon in time to come, it will be null; because, of course, I have no further right to that thing, and it is without effect that I attempt to dispose of another’s property.

[1. ] Pufendorf’s distinction between volition that simply approves an end and intention or . . . choice that is the “effectual desire to obtain an end” follows Aristotle’s distinction of wish (βούλησις), which might relate to impossibles (Nicomachean Ethics III, 1111b20ff), from choice (προαίρησις) as the “deliberate desire of things in our own power”; cf. JNG, 1, 4, §1. Choice in particular qualifies an action as “voluntary . . . of which the moving principle is in the agent himself” (Nicomachean Ethics III, 1111a20ff). It also forms the background to Pufendorf’s discussion of liberty as a faculty of the will (see below §5, p. 309, and JNG, 1, 4, §2) that in the first place is understood as the faculty of choosing.

[2. ] For mixed action and the illustration of casting merchandise into the sea, as well as for the involuntary action (§4), the source is Nicomachean Ethics III, 1110a4ff; cf. JNG, 1, 4, §9.

[3. ] Deuteronomy 22:25–27.

[4. ] Cf. JNG, 1, 4, §4: “From what has been said it is clear that it belongs to the nature of the will always to seek what is generally good, and to avoid what is generally evil. For it implies a clear contradiction that you should not incline to what you see is agreeable to you, and should incline to what you feel is not agreeable. And so this general inclination of the will can admit no indifference, as though the will might seek good and evil by an appetite of simple approbation. But the will of individuals exerts the force of its indifference on particular goods and evils, as men incline to different things at particular times. . . . Hence, in almost any thing or action, aspects of good and evil, both real and apparent, present themselves and draw the mind this way and that way until finally the will by some intrinsic power determines on one side or the other. An action undertaken in this way is called spontaneous, according to Aristotle, Nicomachean Ethics, Bk. III, chap. xiii [III.iii]: ‘An action would appear to be voluntary, if the agent originates it with a knowledge of particular circumstances.’”

[5. ] See bk. II, Observ. 5, §18.

[6. ] See bk. II, Observ. 5, §19.

[7. ] See, for example, Dig., XLI.ii.12, §1.