Front Page Titles (by Subject) OBSERVATION IV: Right reason dictates that a man should care for himself in such a way that human society be not thrown into disorder. - Two Books of the Elements of Universal Jurisprudence
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OBSERVATION IV: Right reason dictates that a man should care for himself in such a way that human society be not thrown into disorder. - Samuel von Pufendorf, Two Books of the Elements of Universal Jurisprudence 
Two Books of the Elements of Universal Jurisprudence, translated by William Abbott Oldfather, 1931. Revised by Thomas Behme. Edited and with an Introduction by Thomas Behme (Indianapolis: Liberty Fund, 2009).
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Right reason dictates that a man should care for himself in such a way that human society be not thrown into disorder.
1. Although, when man comes into the light of day, his mind is found to be imbued with no knowledge of affairs, nevertheless, his intellect thus disposed God has so shaped that, after his powers have begun to exert themselves simultaneously with advancing years, from the inspection of natural matters he conceives certain notions serviceable to a richer knowledge to be erected upon them later; and, from the contemplation of himself, he recognizes what actions, as being in accord with his own nature, the Creator has wished him to perform, and what to avoid, as being repugnant to the same. To be occupied with the former is the part of others; it is for us here to look with a little more care into the latter class. By experience, therefore, it is well established that, when, out of a state of infantile ignorance, the light of reason in man reveals itself with a little greater clarity, and turns itself to the contemplation of its own nature, his reason which has not been corrupted by emotions or vicious habits, dictates to him that it is right, indeed, for him to care for and save himself as far as he can; nevertheless, because he has observed that he has been destined by the Creator to cultivate society with other men, it is necessary so to modify his care for himself as not to become himself unsociable with others, or not to have society among men disturbed. It is this very thing which we call the law of nature. This law, as has been said, comes to be known, without any supernatural aid, from a consideration of nature and the condition of man. Nor does this nature cease to be known because many have not that strength of natural capacity which would enable them to investigate the same by their own processes of reasoning, or because knowledge of it is acquired by most men through information derived from others. For it is sufficient that the perspicacity of but mediocre intelligence can deduce it, and the rest of men, when, under the instruction of others, they have compared their acquired knowledge of it with the condition of their own nature, are able to observe that this law is necessarily in accord with them. And, as human society coalesces and is preserved by the law of nature, so this is by no means the least fruit of societies already established, that, in them, through instruction from others and by its very exercise, even the duller may learn the law of nature.
2. But the method of reaching easily a knowledge of most of the laws of nature, which is strongly recommended, namely, that, when a man is on the point of doing something to a second person he should think of himself as being put in the place of the other with whom something is to be done, and the other in turn set in his place, is so to be restricted that, in such a case, there should be considered not only what would be pleasing or displeasing to have brought upon us, but also what obligation or necessity rests upon us of conferring something upon the other person. And so that trite saying, “Do not do to the other person what you would not wish to be done to you,” is valid only thus far; just as you do not wish it to happen to you that the other person brings upon you something unpleasant, to which he is not forced by some obligation or necessity; or, in other words, what amounts to the same thing, as you do not wish done to you by the other person what is unjust or inhuman, so do you not bring anything of that sort upon the other person. On this score the judge, assuredly, is not hindered by that dictum from inflicting punishment upon the guilty, although he himself, put in the place of the guilty, would desire to escape punishment quite as much as they. Thus, in regard to what was enunciated by the Saviour himself, “Whatever ye wish that others should do unto you, do ye also unto them,”1 there must likewise be borne in mind not merely what would be pleasant to have done to us by the other person, but also what the other can conveniently do. Hence it is by no means proper for me to clean my servant’s shoes for him, because I want him to clean mine for me. And there is enjoined by that precept before all things the exercise of justice and humanity. Now this humanity, assuredly, does not require me to do something for the other person which I myself cannot be deprived of without great inconvenience to myself, or supply him with things which either I cannot myself supply conveniently, or which are not so very necessary to the other that they must be supplied by me.
3. Now that dictate of reason or law of nature has force to obligate men on the authority [autoritate] of the Creator, as of one exercising supreme sovereignty over them. And, since He has so formed the nature of man as to make it apparent enough that man has been destined to cultivate society, and, for that reason, has made his mind capable of those notions, it is understood, assuredly, that He also wished man to attemper himself to the end prescribed by Himself. And so, since that end is obtained by the law of nature, He has obligated man also to preserve it, as a means not discovered by the free choice of man, and subject to change in accordance with their humour, but expressly established by God Himself for attaining this end. For he, who, by virtue of his command [imperio], enjoins upon a second person an end, is reckoned also to have obligated him to employ those things which are necessary to obtain that end. And the laws of nature would have had a perfect force to obligate man, even if God had never set them forth also in His revealed word, nor are they any less laws because they appear to be merely certain conclusions, perceived by the reason, touching things to be done and to be avoided, and not the discourses of Him who rightfully commands something to be done or not to be done. For man was bound to obey his Creator, even if, by a special revelation, He had not manifested to him His own authority [autoritatem]; since, forsooth, he might otherwise perceive that he was subject to the authority of the Supreme Arbiter of things, even without a revelation of that kind; and law is the decree of a superior, in what fashion soever it may finally become known to the subject, whether it be promulgated by means of notional signs, or a discourse expressed by the voice, or in writing, or whether from the condition of nature, or that of the transaction which must be done, it has to be inferred or presumed by the process of reasoning. And no one will deny that those also to whom the Sacred Scriptures have never become known, have sinned against the law of nature; which could not be said, if, indeed, it borrowed the force of a law from promulgation through the Scriptures.2
4. Now the fundamental laws of nature and those from which all the rest flow are two: (1) That any one whatsoever should protect his own life and limbs, as far as he can, and save himself and what is his own. (2) That he should not disturb human society, or, in other words, that he should not do anything whereby society among men may be less tranquil. These laws ought so to conspire, and, as it were, be intertwined with one another, as to coalesce, as it were, into one law, namely, That each should be zealous so to preserve himself, that society among men be not disturbed.
5. Now, indeed, there are those who, with considerable subtlety, deduce all other laws from the first alone. To wit, since, if all society among men were abolished, any man whatsoever would have an equal right to any thing whatsoever, and from that the war of all against all would have arisen, yet this status would be utterly repugnant to the conservation and security of men, and would bring with it infinite troubles and miseries: Therefore, peace is to be sought, as far as some hope of having it shine upon us, and where it cannot be had, the aid of war is to be sought:3 And so a right to everything is not to be retained, but with pacts, by which one must altogether stand, society must be established for the sake of mutual aid, and so on. But, in truth, since it has been shown above that nature has directly destined man for a social life, in such wise, that, although he may have bound himself by a special bond to some particular society, nevertheless, with all men, even those who live outside of that society, he should cultivate universal peace as far as they may allow him to, and he should exhibit the services of humanity which he can conveniently; the preservation of the social life is also deservedly laid down as the basis for the laws of nature, but is not assumed in a secondary way as something which men have been compelled by accident to take up. Hence, also, it is incongruous to wish to derive from the dictate of reason, cutting off the supposition of the social life, some primeval right of nature; since, forsooth, everything which is inferred in that way is necessarily to be attempered to the nature of social life. And let us assume that a certain people which cherishes internal peace among its citizens, has such strength that it may be feared by all the rest, and so is by no means kept from hurting others by the fear lest, perchance, its own example be applied to it: If such a people should, to its own pleasure, raven against the persons or property of other weaker peoples, drive off, carry away, kill, or drag others into slavery, just as it might judge to be expedient to itself, who would not recognize that the law of nature was directly violated by them? Or who would say that they differed from a pack of wolves? And yet (as we are supposing) that people might preserve itself, even if, perchance, it should employ no right in its dealings with others.4 Nay, beyond all other things, the persuasion that a man is sufficient unto himself, that he has made abundant provision for his own safety, and that there is no reason why he should be zealous to deserve the services of the rest, induces him to violate the law of nature. Nor from any other fountain head has flowed the custom, formerly accepted among many peoples, of disturbing strangers with brigandage and practising piracy; because men felt that they were bound only to their fellow citizens, and were obligated to strangers by no bond of right; and so, that there was peace only with their fellow citizens, and war with all others. It stands, therefore, that, as the life of men without society is destined to be like the life of beasts, so the law of nature is principally founded upon the principle that social life among men is to be preserved. And the condition of our nature is so far from conflicting with our assertion, that it rather supports it firmly. Now this condition, even if we were bound by no law of nature to cultivate society, would urge us to establish it of our own accord, because of the advantages flowing therefrom, and so as to avoid the disadvantages which accompany the non-social life.
6. But we must here consider whether that law about preserving oneself without disturbance to society or hurt to the other person, be not restricted through the case of necessity; or, in other words, whether it may not be permissible to hurt the body or the property of a second person, if, indeed, I cannot otherwise save myself and what is my own. On this point we here lay down the principle that, on the basis of the law of humanity, any one whatsoever is bound, when not under an equal necessity, to the extent of his power to come to the aid of a second person placed in an extreme necessity, and necessity gives the authority to claim this aid in very much the same manner as we claim the things to which we have a right; while there remains the obligation to make restoration, at least by way of gratitude, when the present necessity has been removed. For to necessity is deservedly ascribed such force, that it prevails over those reasons by which, otherwise, we are bidden not to claim by force what is due us by the law of humanity.
But the principal controversy is as to whether necessity gives one a legal right to the life of a second person. Here in different cases the judgement must be different. And, in the first place, indeed, if, for example, a prince, or one who otherwise has in any way at all for the present the power to dispose of my life, should bid me kill a second person, of whose innocence I was convinced, if I did not wish to be killed myself; and of course, if he have enjoined upon me merely the execution, hardly any one will doubt that I may rightly turn my hands to that service for the sake of saving my own life. For there is no reason why I should throw my life away, when the second person is going to be put to death by others just the same, especially since he who brings that necessity upon me, takes full responsibility for the deed himself, and does not appear to be deriving upon me any part of the guilt. Although I very properly deprecate such a service, where it is permissible to avoid it without great peril, even when only the execution is entrusted to me. But, in truth, the case is different, if a prince, under threat of death, should give orders to condemn as guilty a man who, in the judge’s own opinion, is innocent. For in this wise the judge lends the violation of his office to furnishing a specious occasion of wreaking vengeance upon an innocent man as though he were guilty, and so the judge derives a large part of the guilt upon himself. A good man should account it a glorious thing to escape the turpitude of such a deed even at the risk of his life. There are other cases, besides, in which, in order to save my life, the life of another can be exposed to probable peril of death, not, indeed, in direct intention, but indirectly, and as a consequence. Thus, for example, when two of us are in present peril of our life, so that both will have to die together, or only one can be saved, it is permissible to bring his fate upon the other person, who would otherwise perish anyway, so that I be not myself compelled to perish with him. Thus, in a shipwreck, when I have seized a plank not large enough for two; if some one should swim up and wish to throw himself likewise upon it, and so destroy me together with himself, nothing prevents me from driving him away from me by any kind of violence.5 Thus, when the enemy, intending death, follows hard upon two who are fleeing, in the present peril to his life one can abandon the other by breaking down a bridge behind him, or by closing a gate, if it be impossible for both to be saved at the same time.6 In like manner, if some stronger man should pursue me with threats of death, and if some one who was otherwise in no danger from him should meet me by chance in the road by which I had to flee, if, indeed, when admonished, he did not get out of the way, or the shortness of time or the narrowness of the way did not allow him to do so, it will assuredly be permissible to strike him down, and to betake myself to flight over his prostrate body; even if, in all probability, as a result of that assault, it should appear that his body would have to be struck down violently; unless, perchance, the person in my way be of such a sort that I ought rather to run a probable risk of my own life than that he should be severely hurt on my account. But, in truth, if any one has impudently or inhumanely stood in my way, and has refused to grant me a way of escape, I can kill him as an enemy and with direct intent, if, indeed, he cannot be removed from the way by any less severe means. If, however, in shipwreck, for example, more persons should leap into a boat than it can carry, in such wise, that, if the rest wish to be saved, one or more must necessarily be thrown out; assuming that all enjoy an equal right here, those who are thrown out will have to be chosen by lot, and if any one refuses to have the lot cast, he can be thrown overboard without further delay, as one who is seeking the ruin of all.7
He who has carefully weighed these cases, and others similar to them, if such occur, will not fear at all, lest therefrom follow the possibility of also doing harm to the life of a second person, in order to save some limb; and lest the matter come finally to such a pass that we feel any inconveniences of ours whatsoever can rightly be warded off to the damage of a second person. For the favour accorded the saving of one’s own life does not attend other blessings in equal measure, and no law of humanity bids me to avert, with equal or greater inconvenience to myself, inconveniences of that kind from a second person; and so force cannot be employed here by a second person with any colour of right.
7. But, when the necessity has merely to do with the property of the other, or when our life can be saved only by the property of the other, there is scarcely any doubt but that, when no other means are available, this property can be appropriated by force, and against the will of the owner, who is not under pressure of the same necessity. And this is not on the basis of some exception, added or understood in the pact establishing private ownership in the first instance, namely, that, in a case of necessity, community of goods was to return,8 but on the basis of the reason just given. And hence, if, by the exercise of violence, one man prevents another, when oppressed by such a necessity, from the use of the first man’s property, it is not said properly of the first that he has done the second an injury, but merely that he has sinned against the law of charitable affection; nevertheless, the former would necessarily have to be said, if, indeed, private ownership ceasing to exist in this case, need should grant a right to property equal to the right of the possessor of it. Nor yet is a wrong done the owner, when a service, otherwise to be furnished by him as a voluntary agent, is, because of necessity, extorted from him as an unwilling person, especially when restitution, at least by way of gratitude, is to be made in due time. But, in truth, just as in the case of need, which stood on the same footing with this, each man is naturally his own best friend; so also, a second person cannot take away from me by violence my property which I need quite as much as he does. Hence, we are of the opinion that the following is even less congruent with the truth: “The debtor left in extreme necessity is not now bound, the present moment having been fixed for payment, to restore the property to the creditor who is labouring under an equal necessity.” For it is certain that the creditor in this case can rightly take away by force from the debtor the property owed him. And yet it appears absurd for one properly to have the right of taking away any property from a second person by violence, if, indeed, in that second person there be no obligation to give him that property. For, that necessity makes things common, we have already denied, and the assertion that the legal position of the possessor is better, is valid only when the right of the claimant has not yet been clearly demonstrated. But the following case has very little doubt about it, whether, namely, when a conflagration has broken out, it may be permissible to tear down my neighbour’s house, so as to save my own. For by that tearing down my neighbour suffers properly no loss at my hand, since his house was otherwise going to burn down; nor has he ground of complaint because his house succumbed to the hands of men rather than to the flame, so that in this way damage might be averted from his neighbours.
8. Now from the former fundamental law this general law flows: Every one whatsoever ought to leave undone that which either weakens the use of the reason, or brings harm or ruin to the body. The exercise of this law, although it terminates directly in each man’s own person, does, nevertheless, altogether involve some regard for the preservation of society, and redounds consequently to its own advantage, in that it orders the very members who constitute society to preserve themselves, or so to attemper themselves that they may not be a burden both to themselves and to society. Nay more, it appears that there was scarcely any need for this law, and nature might have left each man to his own instinct regarding care for himself, had she not wished to destine man to the cultivation of a social life. Furthermore, from that law there flow the precepts of the law of nature about composing theemotions and bringing them under the command [imperium] of reason,9 forasmuch as they hinder us in forming a right judgement about things, and frequently carry us off to those things which are harmful for ourselves and others; also the precept about avoiding drunkenness, since, in addition to the harm done the body, drunkenness very commonly casts down the mind from its station. And so drunkenness makes us tend in a direction opposite to the law of nature which altogether demands the use of reason for its observance. Now it makes no difference whether a man be acting directly contrary to his duty, or be voluntarily undertaking that by which he is rendered unfit for the performance of his duty. From that law comes likewise the precept about avoiding irregular sex relations, or those vile comminglings with one’s own sex or with different species, which throw a foul stain upon body and mind, the dignity of human nature being violated by such shameful acts; aside from the fact that they tend directly to overturn the foundation of human society, which cannot endure without the propagation of the species. And finally the precept about not mutilating one’s members (except, perchance, for the safety of the whole body), and not throwing one’s life away, nature and obligation not demanding it. But that a member already irreparably injured by some disease or accident can be separated from the body, so as not to infect and destroy the whole body with its contagion, is beyond doubt.
9. But there are those who start a controversy here, as though these matters were not enjoined by the law of nature, for the reason that instinct and sense appetite moved long since to such things with adequate force, and it was not necessary for man to be obligated to them by the law of nature. Now they understand here not merely one’s own preservation, but also the appetite for society and matrimony, and the care and bringing up of offspring, which to some of the ancients were the first dictates of nature, in regard to which reason had place only in so far as to prevent a second person from being unjustly hurt by them. But, in truth, it is so far from following that the law of nature does not prescribe these matters, because natural instinct long since moved toward them with sufficient keenness, that rather it clearly appears nature wanted them to be most carefully observed, as preserving the seed plot of the human race, in that, being doubtful of reason’s dictate alone, she bade so strong a natural instinct support it, that man can with the utmost difficulty strive in the opposite direction. For, if there could be carefully weighed the troubles which necessarily attend human life, far exceeding that trifling and cheap amount of pleasures (and for how many life is prolonged so that they furnish fortune material on which to vent her fury!), how few there are who would not at the very first opportunity break off this life, if reason alone urged its preservation, and a natural instinct did not so carefully commend the love of it. Exactly as every day we see great numbers of men sin against those laws of nature which reason alone dictates. Thus how few there are who would take pains with their children, who often give occasion for grief, or at least furnish the most certain cause for cares and labours, were it not that, in addition to reason, natural inclination also propelled us in that direction. Especially as all this is attended by an act so little decorous and by intercourse with women, which would be both trivial and tedious to the wise man except for their allurements. We know, indeed, that the natural instinct and the dictate of reason, or law of nature, are utterly distinct things. In most matters also these two tend in the opposite direction, in such wise that instinct leads us away from that honourable course which reason urges. As man ought to overcome instinct when resisting reason, so the ability to overcome it belongs to the mind not degenerate. But to dull the point of that instinct which conspires with the dictate of reason, is the part of a madman. And so it is not the act of overcoming every natural instinct, which is connected with praise, but only that instinct which strives against the dictate of reason. And, although instinct alone never obligates a person to do anything, nevertheless, it happens that we are obligated to something, to which we are inclined also by instinct, because the dictate of reason also prescribes the same. Just as also brutes for that reason cannot at all be said to be capable of legal right, even though, by instinct alone, they move to those things which tend to preserve the individual or the species. Nor, in truth, for that reason is a mother who kills her offspring in order to avoid disgrace, excused from a sin against the law of nature, although she be overcoming her instinct towards her offspring by another instinct, namely that of shrinking from disgrace. For the infant’s life had been protected not by the mother’s instinct alone, but also by the law, and the mother ought to have known that her disgrace is of less consequence than the death of that which came into being by that act to which she had herself previously consented. Hence, if her good name meant more to her than the pleasure of copulation or the love of her offspring, before copulation was performed she ought to have thought about that; but, afterwards, the offspring by no means deserves to die so that the parent’s sin shall not become known. Now that it is not absurd or superfluous to ratify such matters by civil laws also, is shown clearly enough by laws of the Spartans and the Romans, among whom, to be sure, citizens were compelled to enter upon matrimony by rewards or through the fear of ignominy. As far as the law of nature is concerned, however, assuredly it enjoins matrimony upon all who are naturally capable of it, unless with the greatest probability they have foreseen that they will contribute more good to the human race by passing their life in chaste celibacy, than if they procreate their kind. However, since that is an affirmative precept, it will not obligate unless a convenient occasion has been given, and this is not to be measured merely by marriageable age, and the material means appropriate for that condition, but it is also to be borne in mind whether considerations for the status which one ought to maintain in the state, allow it.10 Now when matrimony has been contracted, as the stimulation merely of the genital field is in our power, but the germination depends upon natural causes by no means subordinate to our free choice; so, for the same reason, he who has begotten but two children only, if, indeed, nature denies him more abundant progeny, satisfies the law of nature as well as he who has been made a parent by a wife fertile with numerous offspring.
10. Furthermore, it is not superfluous to have here considered the question how far that precept of the law of nature about preserving oneself extends, and whether one in spurning the sweetness of life, or for the purpose of avoiding great miseries, may hasten one’s own fate. Here, although it be extremely invidious to depart from the common persuasion, we shall see what can be said with probability only. We presuppose, therefore, what was demonstrated above, namely, that just as no one can properly be obligated to himself, so also he who has inflicted violence upon himself is doing himself no wrong. Now the reason that a man is obligated by the law of nature to preserve himself, seems to be that he has been destined by the Creator to cultivate human society, which he cannot at all abandon at will after the fashion of a deserter or a soldier who fails to appear. Now, since, on removing that consideration looking toward the social life, non-social man would have been without any obligation, like a brute, it appears that instinct alone would have commended to man the custody of his own life and body, and, since this instinct alone does not have the force of a law, he would also not have sinned, who had done something contrary to it. Because, therefore, our life, for the good of human society, has been fortified, as it were, by a law of nature, it follows that a man can, on the basis of an obligation enjoined upon him by his sovereign, or one which he himself in the exercise of reason undertakes in behalf of the safety of a number, undergo with deliberate purpose a peril of the kind from which he can with probability foresee that he will not escape with his life, except, perhaps, on some unexpected chance. And this is approved not merely by the consent and usage of all nations, but also the very histories subscribed with the divine authority [autoritate] glorify and praise those who for the king or their fellow citizens have entered upon danger threatening present death, although sometimes it has happened that, by their own valour, or some unexpected chance, they have escaped; and yet upon the hope of escaping death it was not permissible to undertake an act otherwise in itself illicit. Hence this much, at least, is well established, that by the law of nature a man may for the safety of a number undertake an act of a kind in which he foresees that his life will probably be lost. On this score even those ship captains can be excused who, when the enemy captures the ship, throw a lighted fuse into the powder and destroy themselves along with the enemy. Although the heads of the state ought carefully to consider whether it be to the public good for lower officers to be bound by such a necessity. And the same question is to be raised by a lower officer, if, indeed, he should undertake a thing of that kind upon merely the presumed will of his superiors.
However, what may be permissible beyond this case is a matter for deeper delving. Any one, indeed, would justly excuse from the crime of suicide those who, from a disease disturbing the use of the reason, lay hands upon themselves. For their acts, since they cannot be directed by reason, are not reckoned as moral acts; unless, perchance, in so far as they themselves were at fault for having lost the use of the same. Nor does the question whether a person falls by his own hand, or in any way whatsoever forces others to put him to death, seem to have any bearing in the case. For he who did not owe it to die here and now, is not excused if he has used the hands of another in bringing about death, since, forsooth, he is reckoned as having done himself that which he does through the instrumentality of another; although he who has committed his hands to this ministration, can also contract guilt. In general, therefore, there come to be weighed the causes whereby a man has been moved to anything of the sort. For, if the cause be of the kind whereby he is going to preserve the safety of a number through his death, it appears that he can use the same excuses which are open to those who devote their lives for the public safety. But favour is merited, or at least pity, rather than a harsh judgement, is due also in the case of those who lay hands upon themselves, because, with a morally infallible certainty, they foresee that death with torture will soon thereafter be inflicted upon them by the enemy, and it does no good to the state for them to die at the free choice of a second person; or because they see directed against them by others something on the commission of which they will thenceforth be objects of disdain to the rest of men. Such persons are those who, when they see death at the hands of a truculent foe or tyrant hanging over their heads, have preferred to hasten their fate so as to escape tortures; likewise women who have avoided the violation of their chastity in this manner. With plausibility, indeed, can they put forward in excusing themselves, that, from so great a necessity brought to bear upon them they had gathered that their dismissal had already been given; also, that it is a small matter to anticipate death by so slight an interval of time, so as not to feel the torments and the insults which might, perchance, drive them to a grievous sin; and that nature does not appear to have wished to enjoin upon noble minds the necessity of altogether putting their life at the pleasure of a second person, after first having been abused with contumely. But, truly, he who has voluntarily broken off his life out of sheer boredom at the annoyances common to life, or indignation at its evils, which were not going to render him useless in human society, or through fear of torture, by having endured which bravely he might have benefited others by his example—for him assuredly no excuse avails to prevent him from being regarded as having sinned against the law of nature.
11. As for the rest, just as the latter fundamental law obligates all men whatsoever to render one another in a free and friendly fashion what they owe, and, as a result of carefully observing that law, there results peace, which is the status best suited to human nature, and for the establishment and preservation of which the law of nature has primarily been implanted in man: so, by the former law, war is licit and sometimes necessary, that is to say, when a second person has violated the latter law of nature in my case, and refuses to make good the damage incurred thereby. For here the former law about preserving myself gives me the authority to defend the welfare of myself or mine in any way at all (of course, where there is no chance to avail myself of a judge) against him who violates the same unjustly, notwithstanding the latter law which otherwise prohibits the doing of a hurt to the body and property of a second person. For, since the law of nature obligates all men equally to exercise towards one another the duties due on the score of the law of nature, it is assuredly patent, that, as long as another does for me that which the law of nature prescribes, I ought to do the same for him. But, in truth, when a second person violates right in his relations towards me, then assuredly it will be most impudent for the same man to demand from me that I continue to show him the offices of right, unless he has repented and binds himself to take them up again. Otherwise, also, all the goods which nature or industry has given us would have been granted in vain, if it were not permissible to oppose force to a second person unjustly violating them; and force, the proper means of acting in war, as it were, nature has allowed us to employ, where my welfare cannot be obtained by peaceful means. The exception, however, made by the obligation of subjects towards those who have supreme authority, is elsewhere explained.
12. Furthermore, there is need of force for a twofold purpose, either to defend myself and my property against him who is attempting to harm them; or else to compel another person to restore the damages already done by him to me and to give a guarantee that he will not offend in the future; and from all this arises the distinction between defensive wars and offensive (just) wars. Now regarding defence, it is to be observed that the right of war or of exercising violence begins when the second person attempts to injure me, whether he do that of set purpose and of malice, or out of ignorance; suppose, for example, that he was mistaken in my person, or was affected by insanity. For by what cause soever the aggressor be impelled there is no obligation upon me to throw my life away as a favour to him. But the beginning of doing hurt is not merely defined by the performance of the actual hurt, but is also reckoned as existing already at the moment when a peril is clearly threatened, and it is apparent that the other is already manifestly preparing to attack me. Here it is assuredly stupid to offer yourself to the first blow; but force is rather to be brought to bear promptly, and he who is already preparing to hurt me must be forestalled. But an uncertain suspicion of peril, although it can persuade you to surround yourself with defences, nevertheless does not give you the right to use force first,11 not even to the end that the other furnish what they call a real guarantee not to give offence, that is to say, hostages, sureties, pledges, &c. For, as long as one man has not hurt the other, and is not caught in the very act of doing hurt, he surely has the presumption of being prepared to do his duty for the future also; especially if he confirm that presumption with words and by giving a pledge. From such a person one cannot rightly extort a guarantee by force; for this would make the latter to be in a condition inferior to that of the person himself, since the latter would be demanding to be believed without a guarantee, a thing which he refuses to do for the other without a guarantee. Therefore, either each should guarantee the other, which in such a case is useless and also absurd, unless both consent to that voluntarily from the beginning, or should be content with receiving and giving an assurance of good faith.
13. Now as to the intensity and mode of defence, the law of nature does not merely permit me to employ such as will preserve me and mine for the present, but, more than that, allows me to take measures to obtain a guarantee for the future, and while the other allows himself to be driven to this guarantee by force, he shows that he has still the mind to commit an offence against me in the future, and so, when I cannot obtain a more convenient guarantee, I can legally put him to death, even if the harm first directed against me by him has not touched my life. For, from him who has in me violated the law of nature in one matter, I can expect nothing of a friendly sort, unless of his own accord he come to his senses and satisfy me on the score of the damage, or give me a guarantee for the future. Nor does he receive wrong from me in that he suffers an evil greater than he was trying to inflict; because, while unjustly hurting me, he has left himself no right which will be of avail, at all events towards me, to prevent me from inflicting upon him any amount of violence whatsoever. But when a man unjustly hurts a second person, unless he hurt me indirectly at the same time, or unless I myself am under obligation to defend that other person against unjust violence, there does not come to me the right of bringing force to bear upon the first person, as long, indeed, as he shows no evidences of a hostile mind towards me. For a wrong done to a third person does not supply me with a morally firm certainty that he will also be doing wrong to me; since special causes which are not found in me may incite him against a third person. And yet I ought quite properly to be carefully on my guard against such a man. But, truly, in states where security is protected by the common forces of individuals, to undertake the defence of oneself and of one’s own property by one’s own private strength is allowed any one only when time does not permit us to call in public aid; and, indeed, only to the extent of putting outside of present peril my life, or property not admitting of restitution; since, forsooth, the authority of the magistracy and the punishment to be inflicted upon the one doing hurt, furnish a guarantee adequate for the future. And so, he who in a state wishes to exercise in some case the control of blameless guardianship, ought to examine not merely the law of nature but also the positive civil laws.
14. Now it is to be observed further about war, that it is an unnatural status of men, permitted, nevertheless, by nature to man in a definite case, to wit, when the wrongs done by a second person do not allow me to enjoy peace. For then nature allows me to employ all means of securing my safety against those who criminally attack it; for, along with care for himself, she implanted in man’s mind a bitter sense of wrongs, so that he is unwilling to let himself be ruined through the wrongs done by others, and she armed his body with nimbleness and strength of hands so as not to be compelled to endure the same with impunity. But nature allows war only in such a way that he who wages it ought to set before himself peace as his end, or in other words, that both belligerents be allowed to exercise towards one another the offices of the law of nature, as well as to come into possession of their right and enjoy it without impediment. Otherwise, it is certain that those who wage war for war’s sake only, trampling under foot the law of nature, lead the veriest life of brute beasts, who are at war with one another and with men, without any intention of securing peace.
15. Besides that, although he who has hurt me, immediately gives me the authority, as far as he is concerned, to wage war against him; nevertheless, one ought to take heed to see how much good or evil is going to redound therefrom to me or to others who have not hurt me. For the wrongs which do not utterly destroy my welfare I ought not to avenge in warfare, if either the disadvantages which are going to come upon me and mine therefrom outweigh the advantages; or if, on the occasion of my making war, there will come to others with whom I still cultivate peace, losses of a kind which, on the basis of the law of humanity, I ought to avert by tolerating unavenged a wrong of the sort which has been inflicted upon me. Hence, rightly and laudably, any one whatsoever avoids avenging with warfare the injury done him, from the punishing of which it is judged that an evil greater than the good arises.
16. Now, since the performance of duties due on the basis of the law of nature ought to be mutual, in such wise that he who was the first to break them should absolve also the other person, as far as in him lies, from the obligation to observe the same towards him; it is readily apparent that he who has unjustly hurt me has on his side remitted to me whatever he otherwise could have demanded from me by the law of nature, and has destroyed all the intercourse of right between us: And so he has given me the faculty of waging war against him, that is, of exercising force against him without stint or limit.12 And this not merely if he attacks my life, but even if he should knowingly and willingly direct some lesser evil against me. Because he has no more right to inflict upon me unjustly a buffet, than he has to kill me.13 For the objection which some men raise here, namely, that retribution ought to be proportionate, has place only in tribunals where penalties are inflicted by superiors. But the things inflicted by right of war do not properly have the character of punishments, for they do not proceed from a superior as such, nor do they tend directly to the reformation of the one who does the hurt, or of other men; but to the defence and vindication of my welfare and my rights, which have been unjustly violated by the other. Here, since the one who does the damage has by his injury broken off the intercourse of right between us, it will be permissible for me to employ against him any force at all, openly or treacherously, until, induced by penitence, he has pledged his good faith once more to observe towards me for the future the offices of the law of nature. And all this is in place between those who do not recognize a common judge among men, whether they be individual moral persons, or composite, in other words, societies. For among members of the same society it is forbidden to exercise such a right of war. Here every one whatsoever is bound to commit to the magistracy the prosecution of his wrongs, except where the present crisis does not leave him time to call upon its aid.
17. But whether it be permissible to use promiscuously the service of any persons whatsoever in war, does not appear to some sufficiently clear. For a few make a distinction between traitors and deserters from their own masters who offer themselves voluntarily, and those whose fidelity is corrupted by promises or through rewards, to wit, that the services of the former can properly be utilized even by the customs of nations, not so those of the latter.14 Of this distinction, however, the mere right of war seems to be ignorant. For those two things which are striven for in seducing the subjects of my enemy, namely, to strip him of aids and defenders, and besides to inflict damage upon him, both of them, assuming a just cause for war, I have the right to do. And no sufficient reason appears why I should not be permitted to attain that end even by corrupting through hope of rewards the minds of his citizens. For, since even those individuals who come over to me are in the number of the enemy against whom war gave the licence to vent my rage with violence, and I can exercise or remit that violence as the consideration of my interests demands; it will assuredly be permissible for me to acquit them, as it were, from all the fury of war, and, more than that, heap certain blessings upon them, and this either wholly gratis, or under the condition that they perform for me a certain useful deed, to wit, that without trouble on my part, they separate themselves from my enemy, or do something additional which is of value to me. And although, perchance, they cannot do this without committing a crime themselves; nevertheless, no blame seems to redound to me from this, because there appears no obligation for me to avoid that which looks like the most convenient way to get my right, so as not to give an occasion for wickedness to those who, by their doing me wrong, have suspended the intercourse of right with me. Especially, since whatever solicitations be brought to bear upon them in any case, it is left in their own free choice whether they want to have me for an enemy, or to buy back my friendship on terms laid down by myself. But the reason why, in peace, I may not, for example, tempt a second person’s servant to desert his master and come over to me, is twofold: partly because I have no proper authority to defraud him of his property; and partly because I could not rightly inflict any evil upon the servant himself, if by that very act of fleeing over to my side he should not conciliate me to himself; but both of these conditions appear in our case. And hence, the objection otherwise made to this view, namely, that it is impossible for one person to incite another to that in doing which the other is sinning, or, in other words, he who gives a second person cause for sinning is himself sinning, seems to be valid only between non-enemies. For an enemy, in respect to me, is in such a status, that, while I am prosecuting against him my right, I do not have to care whether he find therein an occasion for sinning or not. But if, however, a man should prefer to say that, although on such a score no right either of him who is tempted or of the principal enemy suffers damage, nevertheless, such a way of harming enemies ought to be avoided, because the law of nature wishes the licence of war, as far as possible, to be tempered to the mode in which vindicative justice is commonly exercised in peace, he would not find us strongly resisting him.
18. But, in truth, that latitude of licence in war has been greatly restricted, partly by the usage of nations, which has declared certain methods of destroying the enemy to be illicit or indecorous, and in favour of warlike fortitude has established a certain intercourse, as it were, of arms, so that the victor should not interpret unfortunate valour as a crime; or because it was also to the interest of the innocent that the injuries done by those who set on foot unjust wars should be more endurable; but especially by the law of nature. For, as the latter has granted men war only as a sort of extraordinary means of establishing peace; so it has also desired that the just warrior, in regard to the foe, should restrict as far as it might be his to do so, the violence which the latter had no right to keep from ravening without stint or limit, to the customary method of exacting punishment and making restitu-tion for damage in time of peace. Hence, there are very many things that the enemy can suffer without wrong, which, however, the humane victor rightly avoids inflicting. Thus, in a public and just war, even if all who are within the enemy’s lines, even those who have been caught there by fate, even women and children, be regarded as enemies; nevertheless, the leader observant of humanity ought not to kill any one, except as a just penalty, or in so far as without doing so he cannot protect his own life and property and those of his men, and only for great causes and such as will bring about the welfare of many may he try anything of a kind that may threaten to bring ruin upon the innocent. From this it is well established that boys ought not to be killed, or women, unless they have done something calling for special punishment, or take upon themselves the offices of men. Nor are males to be killed whose mode of life is alien to arms, such as are those who attend to things sacred, husbandmen, merchants, workmen, and artisans making a living from peace, likewise those who give themselves up, suppliants, &c., unless they have especially committed a deed worthy of death. It is humane also to remit something from an extreme right on account of the multitude of those who have deserved death. On this score, also, are prohibited all those acts which are of no use for attaining our right or for finishing the war, but have as their object the mere demonstration of strength. Similarly, although the injury done by the enemy allows me an unlimited licence in regard to his property, nevertheless, the law of humanity demands that I destroy none of the enemy’s property except because of necessity, or in compensation of a debt and of the expense incurred in securing it, or in place of a fine, as it were, equal to the wrong done by the enemy. Now no fruitful thing is by any means to be destroyed, which one holds in such wise that it cannot be profitable to the enemy, nor, although it be in doubtful possession, is a field to be laid waste if there be a great hope of speedy victory, whose reward will be both the field and the fruit, or if the enemy have any other source from which he can sustain himself. Nor is property to be destroyed which is of no consequence either for making war or for carrying it on. Nor may hands be rashly laid upon things sacred or religious, nor is one to descend lightly to the violent plundering or demolition of cities. Thus, since ravishing matrons and virgins contributes nothing to the attainment of our right or to the establishment of peace, the humane enemy will consider rather what he can reputably inflict upon the other party, than what he can inflict with impunity. Thus, although the injury which the enemy has done, creates for us the licence, as far as he is concerned, to reduce to servitude all who have been captured in war, and to exercise an unlimited authority over slaves; nevertheless, it will be the part of humanity (where this kind of servitude has not been abrogated by custom) not to go ravening about in the infliction of servitude, except in so far as the amount of the original debt, or of that which arises later, allows, or unless, perchance, in the case of some persons there be a special misdeed, which deserves to be punished with loss of liberty. Upon those caught in such a position the right of life and death is to be exercised with the same religious scruples as by a public judge; as regards lesser punishments clemency is to be shown, services are to be demanded in a moderate measure, and attention is to be paid in a humane fashion to the health of slaves. Likewise, if they have saved something by denying themselves, it is to be left to them, and is not to be taken away from them except upon the demand of necessity; and after long or highly useful ministrations, liberty is to be granted. Thus, in the matter of reprisals, a man will be acting humanely, if to those who are free from the guilt of injury he leaves their property, which he can more readily do without than they, especially if it be apparent that they will not recover from their own state what they have lost in such a way. Nor is this right to be rashly exercised upon the goods of innocent subjects, as long as there is hope that we can obtain our own with sufficient ease from the original debtors, or those who have made the debt their own by not according us our right. Most things of that kind, however, regarding the licence of war, which we have called restricted by the law of humanity, are commonly said to be licit on the basis of the Law of Nations; not because they have their origin properly in an agreement of the nations (for not to have employed them deserves the very greatest praise among the more civilized nations); but because, by a certain common custom among the more civilized nations, he who has employed these means for his own advantage or through the violence of his passions, and for the purpose of striking terror into others, is not regarded as a barbarian.
19. But, in truth, because nature has granted us the faculty of waging war merely for the purpose of having our security established against those who disturb our peace, but, as for the rest, in every war bids a secure peace to be regarded as the end, and to be preserved, where it can be had conveniently; hence, the law of nature ordains for the ending of wars, that one party, after taking a guarantee for the future, grant the other pardon for the past, when he asks for it and repents:15 that is, one is to make peace with the one who gave cause for the war by doing the harm, after he has repented of the injury, made restitution for the damage done, and asked for peace. For when the other has offered peace, I have no longer left a just cause for fighting against him. Now to concede peace to one not asking for it, that is to say, still retaining a hostile spirit, and not furnishing a guarantee for the future, that is to say, looking for an opportunity to do more grievous hurt, is to betray one’s own safety through craven fear. It is, however, commonly received among the nations, for reasons adduced elsewhere, and because those who did the harm would, from the fear of disgrace, bring themselves only with the utmost difficulty to peace by confessing that they had done wrong, that, in making peace, the parties are treated as equals in regard to the justice of the war, especially when they enter upon the peace with the forces on both sides equal.
With this precept is related the one that security and safety is to be accorded the mediators of peace, since, forsooth, they are labouring upon a thing ordained by nature, which they cannot do, unless adequate provision has been made for their security.
20. From the same foundation principle proceeds also the following, namely, that in imposing punishment upon men precaution against future evil is alone to be regarded (for the payment of damages is not properly punishment), that is to say, that either he who did the wrong should be reformed, or others warned by his punishment should be afraid to do wrong, and so the severity of a punishment is to be tempered as such action seems to be required for attaining that end.16 For, in exacting a punishment, to look merely at the past misdeed and to punish with the end merely of making it hard for the wrongdoer, is the part of a man who rejects peace, where it can be had, and of one who thinks of war instead of the end of war. For the man whom I so hold under my authority that I can inflict punishments upon him, I must certainly so hold bound that I can obtain from him also a guarantee not to offend in the future. Beyond that end there appears no reason why a man should wish or rightly be able to bring evil for any deed whatsoever upon one who shares the same nature.
21. We have mentioned another fundamental law of nature: The social life is to be preserved by men towards one another, nor is anything to be done that will result in disturbing it. That social life is contained in pretty much these general offices, namely, that a hurt be done no man in person or in property without some antecedent deed of his by which there is brought to us the licence or necessity of hurting him; and that any one whatsoever should furnish a second person of his own accord and without the application of external coercion, quite as much that which is owed him on the basis of obligations especially entered into, as that which common kinship demands. Such are generally held to be things in which we can help another without inconvenience to ourselves, for example, to indicate the way to a man who is lost, or who asks it of us; to allow the use of flowing water for purposes of watering, where our ground is not made worse thereby; to grant innocent passage, and that which does not tend to any one’s injury, through our lands on a public way, especially where adequate precautions are taken, and there is no danger from contagion; not to spoil that which neither hurts nor helps me, but can be useful to another; to grant shipwrecked men the use of the shore, and the like. But the following also is required by the force of that precept, namely, that each person whatsoever freely unite himself to those special societies which necessity, or a marked advantage of life, has recommended be established.
22. Now since that obligation to cultivate the social life attends upon human nature as such, it is clear that the same binds all men equally and all men are equal in so far that, no matter how great be the blessings of mind and body in which some one surpasses the rest of men, he has no more right than the rest to inflict wrongs upon other men; just as also, on the contrary, the insufficient liberality of nature in itself, or an humble estate by itself condemns no one to be worse circumstanced in regard to the enjoyment of a common right among men than others.17 He who disdains this equality can show himself to be no more helpful a member of human society than he who desires to live in some particular society, and yet is not zealous to adjust himself to its laws. And this equality has the force of a mutual agreement, by which a second person is no longer bound, if the first falls away from it, and besides he receives the right of compelling the first person by force to make good his agreements. For he also who has not treated others according to the terms of a common obligation, cannot refuse to have his own examples practised on himself, and besides that be forcibly brought to order by the rest. This equality, however, is to be understood without any antecedent human deed, whereby it is restricted either on consent, or on account of misdeed, as far as concerns the action which comes to the injured party against the injurer. For, although whoever has not treated another according to the prescript of the same law, has equally violated the law of nature; nevertheless, on account of the necessity of supreme sovereignties, it was expedient for the human race that those men upon whom sovereignty has been bestowed, should herein be of a slightly better condition, in so far that others may not have the faculty of bringing them to order, even if, perchance, in some matters they may have violated the law of nature. And this, not because they themselves do not in that matter sin equally with others, but because in their case the force of supreme sovereignty renders those subject to them unfit to coerce them; since, otherwise, all the efficacy of sovereignties would be overturned, if, between subjects and sovereigns you should wish to devise some reciprocal authority to exact punishment because of a violation of a law of nature. The odium of this prerogative, however, if there be any, is made milder partly because it is brought about by the prerogative in question that the rest enjoy an equal right in a more secure manner among themselves; and partly because others consent to it, and this either of set purpose and directly, or else indirectly, by the infliction of a wrong upon the other person, and while the latter sets out to repress it by force, he acquires at the same time sovereignty over him from whom the injury proceeded.
From equality, so as to add this also here in passing, one may otherwise readily infer on what score things ought to be divided among several,18 to wit, so that, other things being equal, if the right of individuals be equal, things may be divided into equal shares. But what cannot be divided is to be used in common, if that may be done, and to the amount that any one wishes, if the quantity of the thing permits. If, however, the quantity does not permit, then it is to be utilized with a fixed limit and in proportion to the number of users. But, if a thing can neither be divided nor possessed in common, its use should either be alternate, or be assigned to one man only by lot, for a more convenient means cannot here be devised. Such lot is either arbitrary, that is, cast with the consent of the contestants and directed by mere chance; or natural, like first occupancy and primogeniture. Concerning these kinds of lot this procedure is commonly observed, namely, that the arbitrary lot is employed where several compete for something to which they have acquired for themselves a right by some antecedent act; but the natural lot, when no one has acquired for himself the right to the thing in question by some antecedent act. Hence, things which are regarded as derelict go to the one who first takes them up, and the hereditary indivisible dignity of the father goes to the first-born, unless disposition shall have been made otherwise by an express statute.
23. From the preceding fundamental law flows this general one: Let no one so bear himself towards a second person that the latter can properly complain that this equality of right has been violated in his case. (Now that is especially true if one’s own right be violated by a second person.) This right has to do with those things which by nature or from the institution of men have been so specially assigned some man, that, if they should not be vouchsafed, be taken away, or be injured by a second person against his will, he is offended. This law breaks up into a number of special laws.
24. I. Let no one do harm to the body of a second person. By this law are prohibited not merely those things which directly hurt the body, but also those which do so as a consequence, for example, terror, and the like, which excite the more gloomy emotions, whereby not merely the mind, but also the body is grievously afflicted. Chastisements, however, inflicting a moderate pain to the body, whereby children especially, or servile dispositions are admonished to do the right, or to abstain from evil, are not included here. But, by the institution of men, this kind of chastisement is not granted to any one whatsoever to exercise upon any one else whatsoever, but has been assigned to definite persons enjoying a special kind of authority over others, and this for the sake of avoiding disturbances which might arise, if the one chastised were not convinced of the good intent of the chastiser, and if he should interpret what is in itself an office of humanity19 as a wrong coming from an unfriendly mind. Hence, if, for example, a man who had not been authorized to do so by the parent should chastise the son of a second person, unless, perchance, he be doing so on the presumed desire of the parent, he is doing an injury to the parent as well as to his son. To the latter, because either by law or by custom he was not bound to endure chastisement by a stranger; to the former, because, against the will and without the knowledge of the master, he is usurping another’s authority. From this law are also excepted corporal punishments justly imposed by magistrates because of antecedent misdeeds. For these furnish no cause for complaint, since he who unites himself to a state subjects himself also to its laws, and he knew that these punishments had been constituted for those who violate them, especially since the rest of his fellow citizens enjoy also the same condition.
25. II. Let no one violate the chastity of a woman against her will. For women are esteemed primarily by its preservation. But that those who mutually consent ought not to indulge a roving passion, that is, when they do it merely for the satisfaction of lust, follows because they are thereby assailing the foundations of human society, which by those enticements wished to promote the propagation of the species. But if they intend to secure offspring, they are disturbing civil society, whose harmony is to the highest degree involved in scrupulous observance of marriage. But virgins who have the hope of marriage sin in a special manner when they consent to the defloration of their chastity. For thenceforward they offer damaged goods instead of sound to purchasers.
26. III. Let no one detract from the good name of a second person, or lessen the esteem in which he is held. For the soundness of this esteem in communal life builds, as it were, a road to most advantages from which those who are aspersed with infamy are excluded. Also every person is regarded by those to whom he is not very intimately known, as being the sort of man that common report makes him out to be. Besides, to be despised by others and treated with contumely affects the minds of men with a most bitter feeling and is the very greatest stimulus to wars; and, in general, the more high spirited a man is, the more incensed he is at being insultingly rated lower by a second person than he esteems himself.
27. IV. Let no one pollute in adultery the wife of a second person. For, by the nuptial pacts, the husband acquired the right that his wife should not be available for the sensual pleasures of any second person whatsoever, to wit, that he may not be compelled to nurture another’s offspring as his own. By this precept males, both unmarried and married, are prohibited from abusing the bridal bed of a second person. And wives are obligated, on the basis of the law about observing pacts, to lend their bodies to no one but their husbands, a thing which also the end of matrimony altogether requires. Any such behaviour with the consent of the husband (although otherwise it is permissible for him to grant the use of his property to a second person) is prohibited by divine laws and among most nations also by civil laws, which have circumscribed the propagation of so noble a being with great religious scrupulousness, as it were.20 On the strength of the same pact, also, the husband, whether monogamy or polygamy have been introduced by positive laws, ought not to bestow himself upon other women except his wives; although the misdeeds of husbands under this head, when, perchance, they have happened to find some loose woman, do by no means so directly conflict with the end of matrimony as does faithlessness on the part of wives.
28. V. Let no one usurp, corrupt, or purloin the property of a second person against his will. For, since the tranquillity of social life does not allow those things which a man needs for self-preservation to be possessed in common and used promiscuously by any one whatsoever,21 on the basis of a mutual agreement each one has such a right to what he has properly acquired that there is left to others no authority to dispose of it, much less to corrupt it or take it away. And this principle is valid as much in regard to things incorporeal as corporeal. For he who prevents some one from using his authority or sovereignty is just as guilty in regard to this law as he who furtively or by open violence takes away his money.22
29. VI. Let every man whatsoever furnish what he owes on a pact or on his pledged word. For, since there are a very great many things which can be furnished by a man for the use of a second person above and beyond those offices comprehended in the general law of humanity, in order for a man to be able to demand these things by right and to erect his calculations, as it were, upon them, it was necessary to the preservation of society among men, that, when a second person has, as it were, accepted my consent expressed in signs in regard to furnishing some matter, there should arise in me, indeed, an obligation or internal necessity to furnish the thing agreed upon, and for the other the right of exacting it. And these agreements are called pacts, by the scrupulous observance of which societies among men are held together as by a very firm bond, and, when they have been violated, the most just causes for complaint arise. For if, indeed, I have furnished something on the basis of the pact, while the other betrays my confidence in him, my property or effort has perished in vain; but if I have as yet furnished nothing, it is none the less annoying to have my calculations upset, and it is contrary to my deserts for me, when accepting the other’s good faith, to be made a laughing stock. Now why one should accept the other’s good faith, even when no further guarantee has been given, or why it should be judged that there is some force in the giving of good faith, comes from this, namely, that, since there is no more convenient bond than this for preserving the social life of men to which nature has destined them, any one whatsoever is presumed to be ready to attemper himself to this end, as long, indeed, as his acts have not manifested the contrary.
30. VII. Let a man make good the damage he has done to a second person by his own fault. For I should be in an inferior status, if the malice or folly of a second person could bring it about that I should be compelled against my will to go without my own property gratis. Now we are properly said to be suffering damage in regard to those things to which we duly have a perfect right, to wit, where what we now possess is either hurt, destroyed, or taken away, or else where what is due on the basis of a pact or a civil law, is not given us. For if those things be denied us to which the law of nature has given us merely an imperfect right or aptitude, it is not properly judged to be damage; and so we do not duly have therefrom the faculty of bringing one to restitution. But that a person be bound, as far as in him lies, to see to it that the property of the second person which has come into his own hands in a blameless manner should return to the real owner, that is to say, to indicate or to confess that such property is in his possession, and to restore it when its return is asked for, is based upon the universal law of humanity about caring for every one’s advantage and warding off damage, as far as that can be done without inconvenience or damage to oneself. For man’s obligation to the social life demands that he ought not to acquire something for himself, or treat as a legitimate matter of gain, that which is connected with the damage of a second person not deserving the same; nor to count it as damage if he goes without an undeserved profit, which he knows he cannot keep without the damage of a second person not deserving the same. However, because I am obliged to do this by a general bond, the other party cannot, assuredly, demand that, in saving his property, I should suffer damage to my own property; and so he will be bound to refund to me at least the expense to which I was put in saving his property, unless, perchance, some special arrangement has been made upon this point by positive laws. Now, as damage can be done to a second person directly or indirectly in a very great many ways, so the law about making good the damage, divides into a very great many particular laws, some of which we shall subjoin here in a haphazard manner, as it were.
(1) The man who has defrauded a second person in the matter of a contract is bound to make good the amount which the other has accepted less than was just, and, if an interval of time has elapsed, with the difference which that makes. Under this law are included those who defraud workmen of their due reward or a part of it; those who do not pay their stipends to men who have let them any kind of service; those who bargain for a higher reward than their services are worth; merchants who force purchasers to pay an unfair price; those who use an unfair measure or weight; those who substitute counterfeit for genuine money, to whom, however, it will be possible to return that same counterfeit money upon another occasion at the same rate at which they gave it out, although by no means to a third person, forasmuch as the wrong received from a second person gives me no privileges over a third, &c. (2) The borrower is bound to make it good if anything in the matter borrowed has been spoiled, or if it has utterly perished, unless it would altogether have perished even with its owner. (3) The one who receives a mandate is bound to make it good to the giver of the mandate, if any damage has been done by his fault or his bad faith in regard to the matter entrusted to him. (4) The one who gives surety ought not to lose what he has spent for the sake of the one for whom surety was given. (5) The loss or destruction of a pledge brought about by the creditor’s fault is imputed to him towards the payment. (6) He who being bound to do something gratis ex officio, was unwilling to do it without receiving pay, ought to restore the same. (7) The magistrate who has not employed those remedies which can and ought to be used to prevent highway robbery and piracy, is bound to make good the damage done to travellers by land and sea. (8) The debtor who was to blame for the creditor’s being compelled to incur expense in order to obtain his right is bound to pay back that expense, and he who rashly engages in a lawsuit is condemned to pay the costs of the trial. (9) The advocate who raises obstructions with calumnies and quibbles so that the other person may not be able to obtain his right is bound to pay the amount of damage which the other person has received from that delay. (10) The true debtor, even if he has been absolved before a court by an unfair sentence, remains a debtor, nevertheless, in nature; although a subject, because of the efficacy of civil sovereignty over him, cannot prosecute his right, even against an unjust sentence. (11) In a certain people, those who, by not paying what they owed, or by not rendering justice, have given cause for taking pledges, are bound to make good the damages to others who have unfairly lost something on that account. (12) He who orders, gives counsel, helps, supplies a place of refuge, does not forbid by a command, or does not give aid to the one on whom a loss is inflicted, when he can and ought to on the basis of a perfect obligation; who does not dissuade when he ought to; or keeps silence about a deed which he was bound to make known on the basis of a perfect obligation, is bound to restore as much as he contributed to the damage, and, if restitution cannot be obtained from the one who did the original hurt, to restore the whole amount. (13) He who has promised something in view of a certain thing which he has neglected to look into, or if on purpose he has not expressed his meaning correctly, is bound to make good the amount of damage which the other has suffered therefrom. (14) He who by guile has caused a man to fall into an error in view of which he was induced to promise, is bound to make good whatever damage the promisor has incurred from that error. (15) If he to whom a promise is made, or with whom a contract is entered into, has brought to bear unjust fear, as a consequence of which the promise or the contract resulted, he is bound to absolve the promisor, if, indeed, the latter so wish. (16) He who has promised another person’s deed is bound to what it amounts to, if he has failed on his side to do what he could perform with the purpose of getting the thing done. (17) Those who exercise monopolies, when, by an agreement, they bring about the sale of commodities at a price above that which is at present the highest in ordinary traffic; or when, by force or fraud, they prevent a larger supply from being imported; or buy up wares so as to sell them at a price which is unfair at the time of sale, are bound to make good that which others lose on this account. (18) An unjust homicide (that is, one who has killed a man who had a right not to be killed by him; a right which is not in the man, who, on a challenge, enters upon a fight with a second person or attacks a second person unjustly, because these men are regarded as having renounced that right; although this circumstance does not interfere with the possibility of their being punished by a magistrate, as far as the deed concerns him) is bound to pay the outlay, if any has been made, upon physicians; and to give as much to those whom the slain man was in duty bound to support as their expectation of sustenance, considering the age of the slain person, amounts to. (19) He who has mutilated some one is bound to make good the expense incurred in curing the wound, and the estimate of that which the person mutilated has now lost in his capacity to make gain. (20) Adulterers ought not merely to free the husband from the expense of supporting the offspring of adultery, but also to make it good to the legitimate children, if they suffer any damage from competition in regard to the inheritance on the part of offspring thus brought into the world. (21) He who has deflowered a virgin by force or fraud, is bound to pay her back the value of the loss to her hopes of marriage. (22) The thief by stealth and the thief by open violence are bound to restore the thing taken, together with its natural increment, and together with the subsequent damage and the loss of profit, as also, if the thing is lost, at least a moderate estimate of its value. The same is owed by those who have done damage by an unjust judgement, an accusation directed by calumny, or false testimony. (23) Those who take part in an unjust war are obligated to make good the expenses and damages which by their efforts they have caused him who is waging a just war. (24) In an unjust war whoever has done damage is bound to make it good. Generals are bound on the score of what has been done under their leadership; all the soldiers who have joined in some common act, as, for example, the burning of a city, are bound for the whole; in divisible acts, each one is bound for the damage of which he was the sole cause or among the causes. (25) The leader who has not paid his soldiers the wages due is obligated not merely to the soldiers, but is also bound to make good to his subjects or neighbours the damages which his soldiers have been compelled by want to inflict upon them. (26) A subject who defrauds the magistracy of a part of its revenues or taxes, either by concealing some of his goods or resources, or in any other way, is bound to restore that which has been kept from the magistracy in that fashion, by whatever title the same holds sovereignty, provided only that the citizens have expressly or tacitly subjected themselves to it, notwithstanding the fact that the portion which the subject keeps out, seems to him to have been imposed above what was a fair measure, unless the magistracy itself remit such to its subjects, or renounce the claim in question. This renunciation, however, does not cause the subject’s previous act to have been no misdeed. (27) Whoever himself takes by unjust violence and keeps another’s property is bound to restore it together also with what the act amounts to, even though the person despoiled shall have himself renounced it “for the sake of buying off trouble,” as men commonly say; and this, whether he seek to get it back or not. For renunciation of that kind, since it has been extorted by unjust force, does not prevent one from being in duty bound to restore the whole on the basis of the law of nature. But when one has offered again to its owner a thing which was stolen, and he has refused to receive it, then, and only then, does the former begin to possess it on the title of donation, as it were.
From all these laws it is patent that the most harmful person is most heavily in debt; and each is understood to be owing to a second person the exact amount of damage which he has done him by guile or through neglect.
31. VIII. Let no one in his own controversy lay down the law for himself, but let him debate it in the presence of arbitrators. It is of most frequent occurrence among men, even those men who are zealous to observe the laws of nature, that controversies arise regarding the proper application of the laws to special facts, to wit, whether what has been done be contrary to the laws, or not (which controversies are called questions of law). Here, assuredly, before anything can be demanded from a second person by law, it ought to be well established which person’s intention corresponds with the law. Neither party of the litigants can rightly claim for himself the faculty to define that matter. For, let us assume that either one wishes to look seriously into his own case and return a candid judgement, the other is, nevertheless, not bound to stand by that judgement; because, as among equals, no reason can be given why the latter ought rather to follow the opinion of the former, than the former that of the latter (for if both agree there remains no further controversy). Also any one will always be judged to favour himself more than the other person. It is necessary, therefore, for both parties to a dispute about some matter to agree upon some third person, whose opinion they obligate themselves by a mutual pact to follow.23 Now there should by no means be any flying to arms immediately, for arms can rightly be drawn only upon him who is caught in the act of doing wrong, although, perchance, out of stubbornness he himself deny it. For, to attack some one in warfare on account of a case not yet ascertained, amounts to pronouncing in one’s own case, a thing which nature allows only for manifest injury.
32. IX. Let the arbitrator show himself fair to both sides. For those who engage in controversy with one another come before the arbitrator as being themselves worthy of an equal right. And when he, beyond what is just, favours one side more than the other, there arise immediately causes for complaints, and matter for wars is ready at hand. From this it follows, that, between the arbitrator and the two sides there ought to intervene no pact or promise by the force of which the former is bound to pronounce in favour of either side. But a pact cannot intervene also between the same parties, by the force of which the arbitrator is obligated to pronounce what is fair or what he thought was fair. The reason for that is not so much because, otherwise, by the law of nature, the arbitrator would be bound to pronounce what seems just, to the obligation of which law nothing can be added on the basis of a pact, and so, such a pact would be superfluous; as, that in this wise the purpose of having taken an arbitrator would be rendered vain, and the process would go on infinitely. For a pact of that kind is so to be conceived as that the two sides promise to place themselves under the judgement of the arbitrator, if, indeed, he have rendered a fair decision. But if, accordingly, his decision afterwards appear unfair to either of the two sides, or be in fact unfair, a controversy would again arise regarding the fairness of the decision. Since the settlement of that question could not properly belong either to the arbitrator or to the parties in dispute, there would have to be recourse necessarily to another arbitrator; and if again doubt should arise about this one’s decision, once more another arbitrator will have to be appointed, and so on infinitely. But, where questions of fact are to be decided by an arbitrator, to wit, when the question is raised whether a thing was really done which is said by one side to have been done, the judge ought likewise to show himself fair to both sides, and, in fairness to both, believe neither, because at the same time they are asserting contradictory statements to be true. But, when signs do not bring us to the knowledge of the truth, the decision will have to be rendered according to the statement of witnesses, who ought not to be so bound to either side that they can scarcely be fair to the other.
33. X. Do not allow the one who, trusting to your humanity, has been the first to do you a benefaction, to be any the worse off on that account; or, in other words, Let the one who was the first to receive a benefaction, see to it that the other does not repent of having done it.24 This is what happens when he who has received a benefaction gives no sign to the one who did it, that it was gratefully received, and neglects an opportunity to do the like; or, what is wont frequently to follow thereafter, repays with hatred instead of gratitude. In this, although there be done no wrong properly so called, since, forsooth, some right acquired by pacts is not violated, and that which is furnished upon a pact is not customarily called a benefaction; nevertheless, ingratitude is reckoned an odious and detestable thing, both because it destroys all beneficence among men and the first steps in winning goodwill, and because to be unwilling to show that the second person is by no means deceived in his creditable opinion of you, is the part of an extremely ignoble mind. In returning benefactions, however, it is not necessary for us to return exactly the same as that which was given us amounted to, but merely as much as we can conveniently. Hence to keep the reputation of being grateful is possible even for him who has by no means such faculties as would enable him to make a like return to his benefactors.
34. XI. Let no one deceive a second person by signs devised to express the feelings of the mind. For, since it was of the utmost concern to human society that men might be able to know among one another the feelings of the mind, and this cannot be achieved except through definite signs, it was altogether necessary for a definite force to be ascribed by tacit agreement to those signs, by the intervention of which it was permissible to judge of the feeling of a second person, and to communicate thoughts with one another. Now, although these signs do not produce an infallible, but only a probable certainty regarding the mind of the other person, men being ready to simulate and dissimulate anything; nevertheless, it was in one way or another sufficient for the preservation of society, that, especially in regard to acts by which some obligation is to be contracted, the same signs should be valid in that sense which common usage and the present business showed. Now those signs are sounds of the voice or articulate words, either formed by the tongue, or later expressed in writing; an instrument which is so much more convenient for nurturing the social life, as men enjoy a more voluble tongue and more nimble hands than the rest of living creatures.25 Now the power to signify this or that definitely does not inhere in the words by nature or by some intrinsic necessity, but by the choice of men. It is no presumption to the contrary that Adam is said to have imposed upon things, with the very best reason, names derived from their proper nature; and that in any languages whatsoever there are some primitive words from which the rest are derived more by reason than by free choice. For, although we concede that to animals and certain other things, names were given denoting their nature or principal affection; nevertheless, those primitive words themselves from which these have been derived, come from mere free choice. Now, afterwards, although cognate words were for the most part given in turn to cognate things, preserving in most of them the conformity of inflexion which men call analogy; still analogy is not everywhere present, since a number of words follow a course peculiar to themselves, and analogy itself, also, consisting of a definite flexion and combination of words, has likewise been determined by free choice. Now, although there are also other signs by which the feelings of the mind can be expressed in one fashion or another; nevertheless, in regard to none besides this has there been a tacit agreement of that kind, and this universal agreement has been entered into, namely, that, in conformity with the common usage of life, it is necessary to use this sign, unless, perchance, some special agreement has intervened. Accordingly, since no one ought to hurt a second person with whom the relations of the law of nature are still mutually exercised, except, perchance, on the occasion of a disservice; but, on the contrary, every one whatsoever is bound to promote, according to his ability, the advantages of a second person, and to furnish without fail what he owes him on the basis of a pact; it is assuredly patent that any one whatsoever, in his relations towards a second person, who, either on the basis of a pact, or on the basis of the mere law of nature, has the right to know the feeling of his mind, should so use signs that the other person be not led by them to his hurt. And that is the very foundation of moral verity, or veracity, which consist in this, namely, that the signs should conveniently represent the concepts of our mind to the other person who has the right to know them, and to whom we are under a perfect or an imperfect obligation to disclose them.26
35. From all this it is not difficult to gather what falsehood is,27 when, namely, signs present the sense of our mind as different from what it truly was, although he to whom the signs are directed has the right to know and to judge that sense. Here, in general, it is well established that, then, and only then, I am bound to make the signs conform to the sense of my mind, when there rests upon me the perfect or imperfect obligation to indicate it to the other person, and this, either in order that he may understand it directly himself, or, in order that, if I have expressed to him a different sense I may not trouble him with damage beyond his desert; and the other person likewise has the perfect or imperfect right to understand that sense, a right which, indeed, has not been taken away by the opposition of a stronger obligation or right. When such an obligation or right does not exist, a man will be by no means telling a falsehood if he put forth signs discrepant from the sense of his own mind, or dissimulate it altogether by keeping silent. Thus, since between enemies the obligation to indicate the feelings of the mind does not obtain, a man may, without being guilty of falsehood, tell what is false to the foe, or terrify him by fictitious rumours, or inflict any detriment upon him, just as he judges it to be to his own advantage, provided no unjust damage to a third person result therefrom.28 If some reprehend this way of doing harm to enemies, that is not because thereby some right is violated; but because among more elevated minds only those things done to a foe are regarded as glory, which indicate some vigour of mind or body, not those which are done without any trouble by the unwarlike and the timid also; to which latter class of deeds belongs also the scattering of tales for the purpose of deceiving the enemy. This principle, however, is not at all to be extended to any pacts entered into with the enemy for the sake of ending or of suspending war. For, since the law of nature bids peace to be preserved as far as it can be done conveniently, or, when broken, to be mended, it is also understood to bid that those means be used without which that end cannot be obtained, to wit, that enemies may be able to judge of the feeling in each other’s minds. For otherwise it is impossible for them to unite in making peace, were not the necessity of suspecting one another removed by the obligation to employ the truth in regard to the agreements of peace. And so the instant that a pact begins to be entered into with the enemy, there arises on both sides the right to understand the sense of the other, at least in regard to the present business, and he who has not rightly expressed it, is to be reckoned as having told a falsehood, and having done a wrong. Thus there are a great many things which I am not bound to signify to a second person, things, of course, which are known to my detriment by a second person who has no right to know them from me; and to one who asks me about them it is best, indeed, to refuse an answer altogether. Just as also it has been introduced by the tacit agreement of the nations, that letters protected by a seal should be opened by him alone to whom they were written, and if any one else unseals them, unless he has done so on the presumed or express will of the one just mentioned, he is doing wrong to him, and is reckoned to have violated the common agreement of nations; a right, however, which like the rest, expires between enemies. But, when I cannot conveniently get rid of the importunate curiosity of a second person by keeping silent or dissimulating, then, assuredly, it will be permissible for me either to mock him with a fabricated tale, or to use ambiguous language, although it may be apparent that the other is understanding it in a sense different from our meaning. Here, however, precautions are to be taken, lest, in addition to the mockery which his curiosity deserves, something further by way of damage be inflicted upon him. This is valid also in case some third person, who has no right to hear my speech, be deceived, as he overhears my conversation with the second person with whom I have exchanged remarks purposely falsified. Thus, in human courts of law, since no one, when he has made restitution for damage done by his own fault, or is prepared to do so, is bound to offer himself voluntarily to punishment, or to report himself for a crime, a man will also not at all be bound to confess voluntarily to a crime, but he may either deny it or avoid it by false arguments. And yet where a matter is to be asserted on oath, out of reverence for the Divine Spirit he ought not to tell anything other than what is the fact. But, in truth, where some one is interrogated by a magistrate about the crime done by a second person, even a man who has not been sworn ought to tell the truth, on the strength of the obligation by which he is bound to promote the public good, which is presumed to be regarded in the punishment of any misdeed at all about which the magistrate judges that an inquiry should be held. But a falsehood is also [not] told,29 when, for example, a judge, in order to elicit some fact from the accused, makes up something, for example, that he has already learned the fact from another, or that he will do this or that if the accused persists in dissimulating, and the like. For, assuredly, the judge has the right to extract the truth in any way whatsoever, even if the accused be not obliged to disclose the truth in any way whatsoever; and so, if the judge elicit the truth in some shrewd way, while exercising his right, he is not doing a wrong. Thus he also deserves praise in addition, who, with a fictitious statement, protects a second person’s innocence, or placates an angry man, consoles a sad one, or does some good to somebody, which could not be secured by an open confession of the fact. For, because he was bound by the law of humanity, or by some closer obligation, to exhibit those offices to a second person, it is well established, assuredly, that he was not obligated to apply signs in that way in which they were not destined to attain their end, namely, the other’s advantage. Here belong also the figments of physicians by which they strive to persuade a morose sick man of the sweetness or the mildness of their medicine. Likewise, when an infant or an insane person is soothed by untruths, or if in battle one arouse the languishing spirits of one’s own men by a false message. Now we contract the reproach of falsehood much less when we ourselves say beforehand that we are going to tell what is false, as is the case when stories are told or written, or when we employ jesting or humour, since that is either being done for the other person’s advantage, or else we assume that this discrepancy between the words and the sense of the mind, or the figurative language, will not at all inconvenience the other person.
36. For the rest, it is not out of place here to subjoin something about the interpretation of signs30 without which the employment of them is utterly vain. Here the following general rule is to be observed: Signs or words are valid in the sense which the common usage among men of the same language conveys. For the right and norm of speech rests with this sense, and words would be deprived of their proper end if any one whatsoever could, to please himself, assign to them such sense as he wished, diverse from common usage. But the words peculiar to the arts are valid in that sense which is used by men skilled in that art, if, indeed, it be well established that these words have been invented for those engaged in it. But, if artisans disagree about the definition of a word in question, or there be otherwise some obscurity about it, it will be best to express in common words what you wish properly to be understood by such an expression. But where there is obscurity or ambiguity in the words, then the true sense will have to be drawn either from the subject-matter itself, or from the effect, or the reason which led one to use them. Thus, also, where some word has several meanings, one more strict, another more loose, if the ambiguity cannot be removed, the stricter meaning properly obtains in odious matters, the looser in favourable ones; in such wise, however, as not to relieve one party by personal favour, while the other one, on the contrary, is too much oppressed. And this, either because any one whatsoever is presumed to have preferred to have an advantage rather than a burden come upon a number of others; or else because the error is slighter if favour be extended further than odium. Thus, since no one is reckoned to have desired absurdities, or that his action have no effect, that sense of words is rightly rejected which either involves something absurd, or makes an action amount to nothing, or which is contrary to the reason in view of which the words in dispute were uttered.
[1. ] Matthew 7:12, Luke 6:31.
[2. ] Cf. JNG, 2, 3, §19: “if these dictates of reason are to have the force of laws, it is necessary to presuppose the existence of God and His providence, whereby all things are governed, and primarily mankind.” Pufendorf follows the Hobbesian voluntarist conception of law as command of a superior and turns against the Grotian dictum, that natural law “would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him” (JBP, Prolegomena, p. 13). But he criticizes the Hobbesian qualification that those dictates of reason are laws “only as they are delivered by God in Holy Scriptures,” because for Pufendorf the promulgation by means of notional signs does not belong to the essence of the law (JNG, 2, 3, §20, with reference to De cive, chap. 3).
[3. ] Hobbes, De cive, chap. 1, §15.
[4. ] Pufendorf refers to De cive, chap. 1, §3. Here Hobbes grounds natural law on self-preservation alone because he assumes that individuals in the state of nature are equally vulnerable and consequently all subject to mutual fear. Pufendorf tries to show that the assumption of equal vulnerability does not hold under certain circumstances (as in some international relations). See also JNG, 3, 2, §2, where he accuses Hobbes of the methodological error opposing equality of physical vulnerability to inequality introduced by civil law.
[5. ] The example is from Carneades (Cicero, De re publica, ed. Konrat Ziegler [Leipzig: Teubner, 1969], 3, 20).
[6. ] Cf. JNG, 2, 6, §4, referring to Virgil, Aeneid, IX [722ff] and XI [883ff].
[7. ] Cf. JNG, 2, 6, §3, referring to Jonah 1:7ff.
[8. ] Allusion to Grotius, JBP, II.ii.6, according to which in cases of dire necessity things revert to original common ownership; cf. JNG, 2, 6, §6.
[9. ] On the Stoic background to Pufendorf’s doctrine of cultura animi [cultivation of the mind], see bk. I, Def. 11, note 2.
[10. ] On matrimony see bk. II, Observ. 5, §4.
[11. ] This is aimed against Hobbes, according to whom the mutual diffidence in the state of nature gives everyone the right to “master the persons of all men he can” in order to anticipate being mastered by them (Leviathan, chap. 13). For Pufendorf, as for Grotius, JBP, II.i.5, only an immediate and imminent danger justifies a defensive war (JNG, 8, 6, §5).
[12. ] Cf. Hobbes’s “first and fundamental law of nature” (Leviathan, chap. 14): “every man, ought to endeavour peace, as far as he has hope in obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war.” For Hobbes the first part of that law (and the resignation of the right to everything that it implies) obliges “in effect then only when there is security” (that is, in the civil state). For Pufendorf, on the contrary, a peaceful law-bound state grounded in the reciprocal exercise of offices constitutes the natural state, properly speaking, while war, characterized by a “faculty . . . of exercising force . . . without . . . limit,” forms an exceptional state even when civil authority is missing (see bk. I, Def. 3, §§5–6).
[13. ] This refers to Grotius, JBP, II.i.10: “For although death and a blow are not on the same level, yet the man who makes ready to injure me by the very act confers on me a right, a sort of actual and unlimited moral right against him, in so far as otherwise I cannot ward off the injury from myself.”
[14. ] Ibid., III.i.21–22.
[15. ] The Latin text (ut alter alteri, sumta cautione futuri temporis, praeteriti veniam, petenti & poenitenti concedat) almost literally agrees with Hobbes’s fifth precept of natural law (De cive, chap. 3, §10: oportere alterum alteri, sumtâ cautione futuri temporis, praeteriti veniam petenti & poenitenti, concedere).
[16. ] See bk. I, Def. 12, note 44.
[17. ] See Statu, §13: “Indeed, the equality we principally mean here consists not only of the fact that no one is entirely exempted from or more loosely bound than another by men’s equal obligation to observe the law of nature toward one another.” The idea of the universality of law presupposes the axiom of equality.
[18. ] See bk. I, Def. 5, §§15ff.
[19. ] This view of castigation as an “office of humanity” is derived from Luther’s conception of the secular office as a service toward your neighbor and an act of charity. See W.A., 1. dept., vol. 21, p. 307: “Und ist solch Straff ampt ein Werck der goettlichen und Christlichen Liebe, Denn solchs hat Gott auch Vater und Mutter stand auffgelegt, da doch die höheste Liebe gegen jre Kinder von Gott in die Natur gepflantzet ist.”
[20. ] See bk. I, Def. 13, §6.
[21. ] See bk. I, Def. 5, §15.
[22. ] For the broad sense of damnum [damage] as including any “injury which concerns a man’s body, reputation and virtue” (JNG, 3, 1, §3), likewise for the different kinds of damages listed in §30 and their corresponding obligations of restitution, the main source is Grotius, JBP, II.xvii; cf. JNG, 3, 1.
[23. ] The discussion of arbitration in the natural state in §§31ff largely paraphrases Hobbes, De cive, chap. 3, §§20, 23–24.
[24. ] The Latin text (Ne eum, qui fiducia humanitatis tuae prior tibi benefecerit, eam ob rem deterioris esse conditionis patiare: seu; Ut qui prior beneficium accepit, operam det, ne alterum dati poeniteat) agrees almost verbatim with Hobbes’s third precept of natural law (De cive, chap. 3, §8: Ne eum qui fiduciâ tui tibi prior benefecerit, eam ob rem, deteriore conditione esse patiaris, sive ne accipiat quisquam beneficium, nisi animo nitendi ne dantem dati meritò poeniteat).
[25. ] Cf. JNG, 4, 1, §1. For the connection of language and sociability, Pufendorf refers to Aristotle, Politics I.2; Pliny the Elder, Natural History, XI, chap. 51; and Quintilian, The Orator’s Education, II, chap. 16.
[26. ] The moral veracity implying a right (respectively an obligation) to information has to be distinguished from “logical” truth: “And so to logical truth, which is a conformity of words with facts, ethical truth, which we are now discussing, adds the intention and obligation of the speaker” (JNG, 4, 1, §8); cf. Grotius, JBP, III.i.11.
[27. ] The following discussion of different kinds of licit falsehoods is largely based on Grotius, JBP, III.i: “General rules from the law of nature regarding what is permissible in war; with a consideration of ruses and falsehood” (§§11 ff; cf. JNG, 4, 1, §§8–19).
[28. ] For Pufendorf the lack of any legal relation between enemies also implies a lack of any obligation to veracity. For Grotius, on the contrary, this holds true only when applied to falsehood in assertions but not to promises which confer a new and particular right even upon the enemy (JBP, III.i.18).
[29. ] Here all other editions of Pufendorf’s Elementa (Den Haag, 1660; Zwickau, 1668; Jena, 1669 and 1680) deviate from the Cambridge edition by containing an additional “non.” From the sense of the paragraph it is clear that the affirmative version must be mistaken, because Pufendorf has above defined “mendacium” as a false statement directed to someone who has the right to know the truth.
[30. ] The following rules of interpretation have been compiled from Grotius, JBP, II.xvi, “On Interpretation”; cf. the corresponding chapter in JNG, 5, 12.