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CHAPTER I: Concerning the origine and foundation of the Law of Nature and Nations. - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Concerning the origine and foundation of theLawofNatureandNations.
What constitutes a good, and what a bad action?Whatever tends to preserve and perfect man is called good with respect to man: whatever hath a contrary tendency is called ill with regard to him:* every action therefore which contributes to human preservation and perfection is a good action; and every action is evil which tends to hurt and destroy man, or to hinder his advancement to the perfection of which his nature is capable.
What Preservation and perfection mean, and what destruction and imperfection?Whatever conduces in any manner or degree towards our duration, or the continuance of our present state, is said to be preservative of man: whatever promotes and augments those properties, which belonging to human nature, and constituting our state and rank, admits of degrees, is called perfective of man.* Whence it is easy to under-stand what may be said to hurt, wrong, or degrade us.
Men have power to act well or ill.Such being the nature of human will, that it always desires good, and abhors ill;† it cannot but like those actions which tend to our preservation and perfection, and it cannot but dislike those actions which tend to our hurt and imperfection: But because good and ill may be really what they appear to be, and on the other hand, a seeming good may be a real evil, and a seeming evil may be a real good;† it very often happens, that like Ixion in the fable, we embrace an empty cloud instead of Juno;1i.e. we are deceived by appearances, and mistake seeming for solid good, and a false semblance of ill for real ill; and thus we may make a bad or a good choice, be right or wrong in our elections, and consequently in our actions.
Wherefore men stand in need of some rule by which they may direct their actions.Now the power of preferring one or other of two possibles, and by consequence of acting well or ill, is called liberty: this power we experience; wherefore it cannot be denied that there are, with regard to us, free actions which are good, and free actions which are bad. But since all things, which may be rightly directed or perverted, stand in need of a rule by which they may be rightly directed, it follows that our free actions ought to be directed by some rule.*
And this rule must be right or just, sure and immutable.By a rule here we understand an evident criterion by which good and ill may be certainly distinguished. And in order to answer that end, a rule must be true, right or just, clear, certain and constant. For suppose the rule not to be just, and that which is ruled by it will not be just or right. Suppose it not to be clear and certain, and it cannot be a sure criterion of good and evil. Finally, if we suppose it to be uncertain and variable, an action regulated by it will sometimes be good and sometimes be bad: and therefore in none of these cases would it deserve the name of a rule.†
It must likewise be obligatory.Further, a rule of action would be but of little advantage to mankind, if it were not of such a kind, that it carried with it some motive (as it is called) by which human will might be impelled to make use of it, and apply it. Because man never acts without something present to his mind, by which he is excited or impelled to act; he will therefore not apply a rule, or at least he will be very indifferent whether he applies it or no, unless he be stimulated by some motive to apply it. But since we call the connection between a motive and a free action obligation, that a rule for the direction of human actions may answer its end, it must be obligatory.
What is obligation, and how many kinds of it are there?Obligation is a connection between motives and free actions, (§6) and motives must consist either in the intrinsic goodness and pravity of actions themselves, or arise from the will of some Being whose authority we acknowledge, commanding and forbidding certain actions under a penalty. And therefore the former species of obligation is called internal; the latter is called external.* The first excites to good actions, the other to just actions. But right is the correlate (as it is called in the schools) to both. For if one person be under an obligation, some other person hath a right or title to exact something from him.
Internal obligation is not sufficient.Hence it is manifest, that a rule which carries only an internal obligation with it, is not sufficient with respect to mankind: for since this obligation solely arises from the goodness of the action, (§7), and therefore only excites a person to act by this motive, viz. that his action may be good; but man is so framed by nature, that he often embraces a false appearance of good for what is really such:* (§3). Such a rule must be uncertain, and for that reason it is not deserving of being called a rule (§5).
An external obligation either perfect or imperfect is therefore wanting.But if a rule only carrying an internal obligation with it, would be uncertain, there is need of one which may produce an external obligation arising from the will of some Being whose authority we acknowledge. Since therefore that Being may oblige us to the practice of virtue and honesty, either without co-action, or may command and forbid certain actions with penalties and rewards, the former species of external obligation is properly denominated imperfect, and the latter perfect. Now the will of a superior commanding and forbidding under penalty is called a law: and therefore a rule for the direction of our free actions, to conform to which we are under perfect obligation, must consist of laws, and a system of such is termed by way of eminence law.*
Of this law there can be no other author but God.Now, since that Being may be justly denominated our superior, upon whom our being and happiness absolutely depend, and whose authority we are obliged to acknowledge, because he has a just title to exact obedience from us, and hath power to propose penalties to us in case of our refusing to obey him; and, it appears by many most evident arguments, that he never hath renounced, nor never can renounce his authority to rule and command us:† That superior Being whose authority we are obliged to acknowledge, can be no other than the most great and good God; and he therefore is the sole author of that law, which ought, as we have said, to be the rule of action to all mankind.
This law is made known to mankind in no other way but by reason.Because we are enquiring, as appears from what hath been said, for no other rule of right but what God hath given to the whole human race for the rule of their conduct, (§10) hence it follows that this rule must be intelligible to all mankind. But since what is intelligible to, or may be known by all mankind, must be discovered to them either by a divine revelation, which all men acknowledge and receive as such, or must be discoverable by the use of natural reason; because such a revelation as hath been mentioned never existed: it is obvious that the law of nature must mean laws within the discovery of all mankind by the use of reason common to all mankind, and which therefore are by nature promulgated to all mankind.*
A definition of the law of nature and of jurisprudence, natural or divine.The law of nature, or the natural rule of rectitude, is a system of laws promulgated by the eternal God to the whole human race by reason. But if you would rather consider it as a science, na-tural morality will be rightly defined the practical habit of discovering the will of the supreme legislator by reason, and of applying it as a rule to every particular case that occurs. Now, because it consists in deducing and applying a rule coming from God, it may be justly called divine jurisprudence.
The law of nature may be divided into preceptive and permissive.Since the law of nature is a system of laws (§12) whatever properly belongs to laws may be ascribed to the law of nature, as to prohibit, permit, punish.* It may be divided as a body of laws is by the Roman lawyers into the permissive part, which obliges all men not to disturb any person in the use and exercise of his right and liberty; and the preceptive, which obliges all men to do good actions, and to abstain from bad ones; and it is also evident, that with respect to the preceptive part, there is no liberty left to mankind; whereas, with regard to the permissive, any one may renounce his right to what is permitted to him.
Whether would there be a law of nature if there were no God?Now seeing the law of nature comes from God (§12) as the supreme legislator, it follows by consequence, that tho’ a person may do a good action, without any regard to the law of nature as such, being excited to it by the internal goodness or obligation of the action, and by his good disposition; tho’ even an atheist, who hath no sense of religion, may do a good action thro’ the influence and guidance of his reason, because he knows it to be good in itself, and advantageous to him; yet such a person cannot on that account be said to act justly, i.e. conformably to the law of nature considered as such; much less then can it be said, that there would still be a law of nature,* tho’ it should be granted, which cannot be done without impiety, that there were no God, or that God did not take any care of human affairs. See Grotius proleg. jur. belli & pacis, §xi.
Why it is said to be inscribed on our hearts.Since the rule of rectitude we are now speaking of signifies laws promulgated by right reason, (§12) and reason is nothing else but the faculty of reasoning, or of inferring one truth from others by necessary consequence,* it is therefore plain why the apostle affirms that the knowledge of this rule is engraved on our hearts, Rom. ii. 15. For he attributes to man the power or faculty of reasoning concerning just and unjust; which power, since it does not necessarily include in it actual exercise, why some should ascribe even to infants a certain innate sense of just and unjust, is not difficult to be comprehended.
Whether the knowledge of it is derived from the sacred writings or tradition?Hence it follows that the law of nature is not derived from the sacred writings, nor from any divine positive laws, such as the seven precepts given to Noah, of which the Jews boast so much;† tho’ at the same time we readily grant, that the author of reason and revelation being the same, not only many things which reason dictates are to be found in the sacred writings, but there is every where a perfect harmony between them; nor can there indeed be any thing forbidden or commanded in the sacred oracles which is repugnant to the rule of right discoverable by reason.
The law of nature is immutable.Further, from the same principle it is evident that the law of nature is no less immutable than right reason it self, which cannot but remain unchangeably the same: and therefore God, who cannot do any thing contrary to his will, cannot give any indulgence repugnant to that eternal law in any respect; and much less can any among mortals arrogate to himself any power over that law.*
The difference between the law of nature and civil law.Nor will it now be difficult to find out the difference between the law of nature and civil law. For the former is discovered by right reason, the latter is promulgated and made known either viva voce or by writing. The former extends as far as right reason: the other is the law of a particular state: The former hath for its object all actions internal as well as external, which are by nature good or evil: The other respects indifferent and ex-ternal actions, so far only as the good of any people or state requires their regulation and adjustment.†
The knowledge of it is of great utility with respect to civil law.But notwithstanding this difference, it is beyond all doubt, that the knowledge of the law of nature must be of the greatest use to all who apply themselves to the study of the civil law; because many of its precepts are adopted by civil law, and by it are fortified with additional penalties;* several conclusions are drawn from the law of nature by civil law; and natural equity must never be severed from civil law, lest according to the ancient saying, Strict law become severe injustice. Summum jus summa injuria.
The brutes are not governed by the law of nature.Moreover from the same principle it is visible, that no other creatures besides men are subject to this law; since God hath dignified man alone with the prerogative of reason; and therefore that definition of Ulpian is false. Natural law is a law which nature hath taught all animals. L. 1. §3. Dig. de just. & jure.*
What is called the law of nations?Further, since the law of nature comprehends all the laws promulgated to mankind by right reason; and men may be considered either as particulars singly, or as they are united in certain political bodies or societies; we call that law, by which the actions of particulars ought to be governed, the law of nature, and we call that the law of nations, which determines what is just and unjust in society or between societies. And therefore the precepts, the laws of both are the same; nay, the law of nations is the law of nature it self, respecting or applied to social life and the affairs of societies and independent states.†
Whether it be different from the law of nature?Hence we may infer, that the law of nature doth not differ from the law of nations, neither in respect of its foundation and first principles, nor of its rules, but solely with regard to its object. Wherefore their opinion is groundless, who speak of, I know not what, law of nations distinct from the law of nature. The positive or secondary law of nations devised by certain ancients, does not properly belong to that law of nations we are now to treat of, because it is neither established by God, nor promulgated by right reason; it is neither common to all mankind nor unchangeable.*
This work divided into two parts.It will not therefore be an useless attempt to treat of both these laws, which have the same foundation in the same work, in such a manner however, as carefully to distinguish the one from the other, since they differ from one another in respect of their objects and application. We shall therefore handle them separately in this order; in the first book, we shall enquire into the law of nature; and in the second, into the law of nations.
Remarks on This Chapter
Tho’ our Author proceeds more distinctly and methodically than most other writers on the law of nature and nations, yet some steps of the reasoning of this chapter do not intirely satisfy me. For §8. he reasons thus, “A rule carrying along with it no more than internal obligation would be uncertain, and so would not deserve the name of a rule; because internal obligation only means the intrinsic goodness of an action, but man is so framed that he may mistake seeming for real good.”—Whence he concludes §9. “That no rule can be certain, and thus sufficient for our direction, but that which carries along with it an external obligation, i.e. according to his definition, the command of a superior invested with sufficient power to enforce his commands.” Now it is plain, that the command of God to do, or to forbear an action can only be inferred from the intrinsic goodness or pravity of that action, i.e. in our author’s language, the external obligation of an action can only be inferred from its internal obligation. Our author acknowledges this §5, and afterwards §60, and §77, & seq. But this being true, it evidently follows, That we cannot be more certain about the external obligation of an action, than we are about its internal obligation: whatever uncertainty our apprehensions of the latter are liable to, our apprehensions of the former must be liable to the same uncertainty. It appears to me very odd reasoning to say, That considering how obnoxious men are to mistakes about good and evil, there must be a more certain rule for human conduct than the intrinsic goodness of actions, even the divine will; when at the same time we are told, that we cannot come at the knowledge of the divine will with respect to our conduct, otherwise than by first knowing what an action is in itself; or that we can only infer the divine will concerning an action from its intrinsic nature, its intrinsic goodness or pravity. In order to cut off many verbal disputes, with which the moral science hath been hitherto perplexed in its very first steps, it ought in my opinion to set out in this manner. 1. If there be such a thing as good or evil belonging to, or arising from actions, there is an internal obligation or a sufficient reason to choose the one and to abhor the other. But that some actions are good and others evil, must be true if preservation and destruction, pain and pleasure, happiness and misery, perfection and imperfection, be not words without meaning, which will not be said. This is the substance of what our author says in his first section, and thus the better antients deduced and explained the essential differences of actions, or the natural difference betwixt virtue and vice. See my Principles of moral and christian philosophy, T. 1. c. 5. t. 2. §3. introduction. In other words, if there be any such thing as natural good and evil, there must be moral good and evil; for actions tending to good must be good, and actions tending to evil must be evil; or if there be any such thing as perfection and imperfection with respect to any quality, any being, as a vine, a horse, &c. there must likewise be such a thing as perfection and imperfection with respect to moral powers and moral agents and their acts or exertions. 2. If there be a God, he must will that we should regulate our actions by, and act conformably to the internal obligation of actions. But that there is a God is the universal plain language of nature. 3. Wherefore wherever there is internal obligation to act in such or such a manner, there is likewise an external obligation to act in the same manner, i.e. there is an extrinsic reason for acting so, arising from the will of God, who is infinitely perfect, and upon whom all our interests here and hereafter absolutely depend. 4. Whatever therefore in respect of its internal obligation may be called a proper rule of conduct, is at the same time a law, in the proper and strict sense of the word, i.e. it is the will, the command of a superior who hath right to command, and power to enforce the obedience of his commands, being the will of God the creator. 5. A system of rules or of directions for our conduct, having internal obligation, may be properly called a system of laws, of natural laws, of divine laws, because it is a system of precepts discoverable from their natural fitness, or internal obligation to be the will or laws of God concerning our conduct. And therefore the whole enquiry into rules of moral conduct, may be called an enquiry into the natural laws of God concerning our conduct.
It is not properly the business of such an enquiry to prove the being of a God, and that where there is internal obligation to an action, there must also be external obligation to it. It supposes that done, and proceeds to enquire into internal obligations; or to unfold the goodness and pravity of actions, and from hence to deduce general rules or laws of conduct. Now if the preceding propositions be attended to, and the difference between a rule and a law, or between internal and external obligation, according to our author’s definition, be kept in mind; it may be asserted without any ambiguity, that abstractly from all consideration of the will of the supreme Being, there is no law for our conduct; there is a rule, but that rule is not a law, in the strict sense of that word. It would have prevented much jangling about the foundations of morality, if writers had carefully distinguished, with a late excellent writer, Dr. Sykes,2 in his Essay on the Connexion of Natural with Revealed Religion, between the law and the sanction of the law. cap. 2.
Our author’s reasoning will proceed very clearly, if we understand the meaning of his 8 § to be to this purpose. “A rule of conduct while it is merely apprehended under the notion of reasonable, will not be sufficient to influence men; in order to have due influence upon them, it must be considered as having external, as well as internal obligation, arising from the will of God which never changes.” See how Puffendorf reasons, b. 2. of the law of nature and nations, ch. 3. §20. “But to make these dictates of reason obtain the dignity and power of laws, it is necessary to call into our consideration a much higher principle, &c.”
With respect to what is said, §22. of the law of nations, ’tis well worth while to add an excellent remark of the author of the Persian Letters, 94 and 95.3 “As the law of nature and nations is commonly doctored, one would imagine there were two sorts of justice; one to regulate the affairs of private persons, which prevails in the civil law; the other to compose the differences that arise between people and people, which plays the tyrant in the law of nations: as if the law of nations were not itself a civil law, not indeed of a particular country, but of the world. The magistrate ought to do justice between citizen and citizen; every nation ought to do the same between themselves and another nation. This second distribution of justice, requires no maxims but what are used in the first. Between nation and nation, there is seldom any want of a third to be umpire; because the grounds of dispute are almost always clear and easy to be determined. The interests of two nations are generally so far separated, that it requires nothing but to be a lover of justice to find it out: it is not the same with regard to the differences that arise between private persons as they live in society, their interests are so mingled and confounded, and there are so many different sorts of them, that it is necessary for a third person to untangle what the covetousness of the parties strives to tie knots in, &c.”
[* ] This is the true idea of perfection according to Simplicius, who upon Epictetus Enchir. cap. 34. observes, to have not only a beginning and a middle, but likewise an end, is the characteristick of perfection. [[Simplicius, On Epictetus’ Handbook (Commentarius in Enchiridion Epicteti). So Aristotle likewise, in Meta. c. 4. 16. where having examined the meaning of several different terms, he reduces them all to the same idea. Aristotle, The Metaphysics.]]
[* ] [[See note on previous page.]]
[† ] This is observed by Simplicius upon Epictet. Enchir. cap. 34. where he greatly exalts human liberty, and defines it to be that free constitution of the human mind, in consequence of which it voluntarily, and without any constraint, sometimes pursues true, and sometimes imaginary good.
[1 ] Ixion was invited to a banquet by Jupiter but planned to seduce Jupiter’s wife, Juno. Jupiter, however, deceived him by shaping an image of Juno out of a cloud. When Ixion embraced the cloud, he was caught by Jupiter and punished.
[* ] Thus Epictetus reasons in Arrian, l. 2. c. xi. Do you think all things are right which appear to be such to any one? but how can things, which are directly repugnant to one another, be both right? it is not therefore enough to make a thing right that it appears to some one to be such, since in weighing or measuring things we do not trust to appearances, but apply a standard. For shall there be a certain measure with regard to these things, and none other with respect to our actions besides fancy or appearance? How can it be that there should be no rule, or none which can be ascertained with respect to human conduct, than which nothing is so necessary? [[Arrian (ca. 95–180), Greek historian. See Epictetus, The Discourses . . ., the Manual, and Fragments, vol. 1, bk. II, chap. xi, 287.]]
[† ] So true is that of Lucret. de rerum nat. l. 4. v. 515.Si prava est regula prima,Normaque si fallax rectis regionibus exit,Et libella aliqua si ex parte claudicat hilum:Omnia mendose fieri atque obstipa, necessum est,Prava, cubantia, prona, supina atque absona tecta,Jam ruere ut quaedam videantur velle, ruantque,Prodita judiciis fallacibus omnia primis.
[[Lucretius, De rerum natura 4.513–19: “Lastly, as in a building, if the original rule is warped, if the square is faulty and deviates from straight lines, if the level is a trifle wrong in any part, the whole will necessarily be made in a faulty fashion and be falling over, warped, sloping, leaning forward, leaning back, all out of proportion, so that some parts seem about to collapse on the instant, and some do collapse, all betrayed by false principles at the beginning.”
[* ] We don’t deny that the internal is the nobler species of obligation, being that which influences all wise and good men, according to the noted maxim:Oderunt peccare boni virtutis amore.
[[Horace, Epistles 1.16.52, in Satires, Epistles, and Ars Poetica: “The good hate vice because they love virtue.”
It is true the ancients praise the primitive race of mankind in the early ages of the world chiefly on this account, that they acted well, and did good and right, without any law compelling them to such conduct, from a virtuous disposition, and with free choice. (Seneca, Ep. 90. “The first of mankind, and their progeny, followed the dictates of pure uncorrupted nature as their law and guide.” Seneca (the Younger), Ad Lucilium epistulae morales, vol. 2, 397. So Ovid likewise, Metam. l. 1. v. 90. Ovid, Metamorphoses, vol. 1, 1.90: “Golden was the first age, which, with no one to compel, without a law, of its own will, kept faith and did the right.” So Tacitus Ann. 3. 26. Tacitus, The Annals of Tacitus, vol. 1, bk. 3, chap. 26 and Salust. Catil. cap. 9. “The War with Catiline,” chap. 9, in Sallust). But we deny it to be sufficient to constitute a rule, because we are enquiring after one founded in nature, and common to the good and bad, wise and foolish, in such a manner, that when reason is not able to keep them to their duty, an external obligation, or which comes to the same thing, the fear of suffering may restrain them.Ne vaga prosiliat fraenis natura remotis.Horat. l. 2. Serm. sat. 7. v. 74.
Horace, Satires II, 7.74: “Lest, when the reins are removed, nature should break out and [go] wandering.”
[* ] [[See preceding note.]]
[* ] (Jus) Law, when it is used to signify a rule of human action, is a system of all the laws of one and the same kind. (Elem. Inst. §33.) [[Heineccius, Elementa iuris civilis secundum ordinem institutionum (Jus) Law therefore, ’tis plain from the origine of the word itself, cannot be conceived, without referring it to the will of a superior, and supposing an external obligation. For it is not derived from Δέον, as Menage would have it, Amoen. Juris. cap. 39. p. 295 Ménage, Iuris civilis amoenitates; nor from Jove, as Scipio, Gent. Orig. p. 270 Gentili, Originum ad Pandectas liber singularis has asserted, and after him Grotius, Proleg. Jur. belli & pacis, §12 Grotius, De iure belli ac pacis, Prolegomena, §12; but from the Word jubendo. For instead of Jura, the ancients used jusa or jussa. Festus, jusa, jura. Festus, De verborum significatu. So Hieron. Magii, var. lect. 4. 1. Magius, Variarum lectionum. In like manner, the German word Recht is shewn by Jo. Geo. Wachter. Gloss. p. 1251 Wachter, Glossarium Germanicum, to include in it the idea of law, or the will of a superior directing human actions.]]
[† ] Not only is the perfection and goodness of a Being a just title to exact obedience, as is affirmed by Mos. Amyraldus Disser. de jure Dei in res creatas [[Amyraldus, De jure dei in creaturas dissertatio, agreeably to that well known saying of Democritus: ϕύσει τὸ ἄρχειν οἰκήϊον τῷδ’ κρείσσονι. Authority falls by nature to the share of what is best. Stob. Serm. 37. Democritus (ca. 460–370 bc), Greek philosopher. The saying quoted by Heineccius was included in the Sermones, an anthology of excerpts from poets and prose writers compiled by Joannes Stobaeus (fl. fifth century ad) and intended for the instruction of his son. The standard modern critical edition is Stobaeus, Anthologium. But dependence is also such. For who will deny that he hath a just claim to our obedience to whom we owe our existence and preservation? God therefore hath a right to command our submission and obedience: He in whom we live, move, and have our being, Acts 17. 28. Besides, that he can inflict punishments on the disobedient and rebellious, his omnipotence and justice leave no room to doubt. (Elem. phil. mor. §185 & seq.) Finally, if he had, or should ever renounce his authority over men, and all created beings, that would be unworthy of his wisdom and goodness; because, being infinitely wise, he must know that we would be most miserable without his government and rule, and being infinitely good, he cannot abandon his creature, which cannot guide itself, and so expose it to the greatest misery. But what is repugnant to his wisdom and goodness, that he can neither will nor do, it is allowed. Wherefore, he neither will nor can renounce his supreme jurisdiction over men and all creatures. It is proper to observe this in opposition to the celebrated Leibnitz Gottfried Wilhelm Leibniz (1646–1716), German philosopher and mathematician, who, the illustrious Sam. a Cocceis Samuel Freiherr von Cocceji (1679–1755), Prussian jurist, Disser. de principio juris naturalis unico vero adaequato, published at Francf. 1699, having by solid arguments demonstrated that there can be no other principle of natural law but the will of God, in the 1700, Ephemeridibus Hanoveranis for the month of July, objected against that hypothesis, among other things, “That according to it, if we suppose a creature to have so much power, that being once produced by its creator, it could not be compelled by him; such a creature must be considered as manumitted by its creator, in the same manner as children, when they come to such a degree of power, that they cannot be compelled by their parents.” For to suppose such a case, is the wildest extravagance, since it implies a manifest contradiction, to imagine a finite Creature arrived to such power that it can no longer be compelled by its Creator, an infinitely powerful Being. And no less absurd are all the other fictions he puts, in order to invalidate that learned man’s doctrine, as this for instance, “That if we suppose an evil genius to have supreme uncontroulable power, such an evil genius would not, because irresistible, cease to be wicked, unjust and tyranical.” For we cannot suppose an evil genius to have supreme power, if we believe the divine existence. And if we deny the existence of God, it is absurd to suppose an evil genius, or indeed any created thing to exist. It is a strong argument of truth, when a proposition cannot be overturned but by suppositions which include a manifest contradiction.]]
[* ] Hence Cicero in his oration for Milo, c. 4. calls it Jus non scriptum sed natum. “Law, or a rule of rectitude not written but cogenial; a rule which we have not learned, read, received by tradition, but which nature itself hath impressed upon us, and which we imbibe and draw from it; to the knowledge of which we are not formed and trained by education or example, but we are originally tinctured and stamped with it.” [[See Cicero, Pro Annio Milone, in The Speeches, trans. Watts. So the apostle likewise says, “The Gentiles, which have not the law, are a law unto themselves, which shew the works of the law written in their hearts” a reference to Romans 2:14. This cannot be otherwise than by reasoning; and therefore by the right use of reason: this is the unanimous doctrine of all, who have, as it were, by compact, placed the law of nature in the dictates of right reason; a few only excepted, who have maintained there is nothing just or right by nature, as Archelaus in Laertius, 2. 16. Diogenes Laertius, Lives of Eminent Philosophers Aristippus, according to the same writer, 2. 93. Carneades in Lactantius, Instit. divin. c. 14. & 19. Lactantius, The Divine Institutes Pyrrho in Sextus Empyricus, Hypot. 3. 24. Sextus Empiricus, Outlines of Scepticism (Pyrroneioi hypotyposeis) and to those Aristotle may be added, who, as Menage has proved at the 7. 128. p. 311. of Laertius a reference to the comments by Gilles Ménage on an edition of Diogenes Laertius’s Lives, the De vitis et dogmatis et Apophtegmatis eorum qui in philosophia claruerunt, was not far from that opinion.]]
[* ] The permissive part of the law of nature constitutes therefore a rule: The preceptive makes an exception. For God leaves all to human liberty, which he hath neither commanded nor forbid. Thus, e.g. God having only prohibited our first parents the tree of knowledge of good and evil, they had good reason to infer that they were permitted to eat of all the other fruits, Gen. iii. 2, 3. Where no obligation of law takes place, there liberty is entire. But hence it must not be concluded, that a permissive law carries no obligation with it. For it obliges all mankind not to disturb any one in the use of his liberty. Thus, e.g. because God has permitted every one to appropriate to his use whatever is not yet appropriated by any person, or belongs to none, and thus to constitute dominion and property, theft, rapine, fraud, depredation, &c. cannot but be unlawful and unjust.
[* ] They cut the nerves, so to speak, of the law of nature, who conceive or define it independently of all regard to God, and thus feign a law to themselves without a lawgiver. All who have philosophized about it with accuracy as well as religiously, have acknowledged, that it proceeds from God as its founder and author, and that if the divine existence be denied, there remains no difference between just and unjust. God, in order to incite Abraham to the love and practice of justice, says to him, “I am the Almighty God, walk before me, and be thou perfect,” Gen. xvii. 1. And the Apostle, Heb. xi. 6. says, “He that cometh to God must believe that he is, and that he is a rewarder of them that diligently seek him.” Yea Cicero, de Nat. Deorum, l. 2. says, “I don’t know whether piety towards God being removed, all sociality and fidelity among men, and justice, the most excellent of virtues, would not likewise be destroyed.” [[Cicero, De natura deorum 1.2, in Cicero, De natura deorum, Academica.]]
[* ] Grotius insists much on the emphasis of this phrase, Grot. upon the Epistle to the Romans, ii. 15. and Joan. Clericus Art. Crit. part. 2. sect. 1. cap. 4. §10. [[Jean le Clerc (Johannes Clericus) (1657–1736) was born in Geneva but lived most of his life in Amsterdam. He was a central figure in the republic of letters with close connections to England, including Locke and Addison, and a biblical scholar who became professor of ecclesiastical history in the Remonstrant seminary. The work referred to here is his Ars critica of 1697. A German edition appeared in three volumes in Leipzig in 1713. who maintain that it means no more than that the law of nature may be easily discovered and retained without the assistance of a teacher, and they have accumulated several passages of ancient authors in which ἐγγράϕειν ἐγγράϕειν: to write, to inscribe]] signifies nothing else. But this subject has been fully treated by Jo. Franc. Bud. Inst. Theo. mor. part. 2. c. 2. §5. where he has also examined Mr. Locke’s opinion with great accuracy. Johann Franz Budde (1667–1729), German theologian and philosopher; professor of moral philosophy at the newly founded University of Halle, where he taught Heineccius. He professed an eclecticism which rested on a broad historical foundation and was very critical of the “atheist” Spinoza. The work referred to here is Budde’s Institutiones theologiae moralis.]]
[† ] How the Hebrews derive the law of nature and nations from the seven precepts given to Noah, is shewn by Jo. Selden, de jure nat. & gent. secundum discipl. Hebraeorum. [[John Selden (1584–1654), lawyer, politician, humanist scholar. The reference is to De jure naturali et gentium juxta disciplinam Ebraeorum. But tho’ the learned Budaeus Introd. ad philosoph. Heb. p. 14. and 15 Budde, Introductio ad historiam philosophiae ebraeorum, thinks that tradition concerning the seven precepts given to Noah, does not want some foundation; yet it cannot be now proved, that ever any such precepts were given to Noah, and tho’ some things that were commanded or forbidden by these precepts be now known to the posterity of Noah; they are known to them not by tradition but by reason, and therefore they are not positive laws, but laws promulgated by right reason.]]
[* ]Cicero says elegantly, The law of nature cannot be altered, nothing can be derogated from it, much less can it be totally abrogated. We cannot be discharged from it by the senate or by the people; neither are we to look out for any explainer or interpreter of this law, besides reason itself. There is not one law of equity for Rome, another for Athens; one for former and another for present times, but the same law binds all nations at all times. All men have one common universal Lord, Ruler, and Lawgiver, God the founder, the establisher of reason, and the judge of all reasonable Beings. [[Cicero, De re publica 3.22, in Cicero, De re publica, De legibus. To this Ulpian consents as we have shewn elsewhere. L. 6. pr. D. de just. & jure. Domitius Ulpianus (ca. 160–228), Roman jurist.]]
[† ]Cicero de Invent. l. 38. “All laws ought to be referred to the publick interest of the state, and to be interpreted not according to the letter, but as the end of laws, publick good, requires. Such was the wisdom and virtue of our ancestors, that they proposed no other end to themselves in making laws but the safety and happiness of the state: they either never enacted into laws what was hurtful, or if they happened to do so, such a law was no sooner known to be hurtful than it was abolished. No person desires the observation of laws for their own sake, but for the good of the republick.” [[Cicero, De inventione 1.38, 112–13, in Cicero, De inventione, De optimo genere oratorum, Topica. They are therefore much mistaken who will have what they call natural law to be founded merely on interest, according to that saying of Epicurus,Nec natura potest justo secernere iniquum,Sola est utilitas justi prope mater & aequi.Hor. Ser. l. 3.
Horace, Satires I 3.113: “Nature cannot distinguish between the just and the unjust [right and wrong]; utility is almost the only mother of what is just and right.”
It is true God being infinitely wise and good commands nothing by the law of nature, but what is useful; but he does not command it because it is useful, but because it is agreeable to his nature and will. An action is not just because it is advantageous, but it is advantageous because it is just. For, as was nobly said by Mar. Ant. Imp. l.7.74. “Every action agreeable to nature is advantage or interest.” Marcus Aurelius, Meditations, vol. 1, 144–45. But this error hath been sufficiently refuted by Grotius, Proleg. jur. bell. & pac. §16. Puffendorff de jur. nat. & gent. L. 2, 3, 10, 11. and the illustrious Sam. de Coccei, de princip. jur. nat. & gent. §2, 9.]]
[* ] This is observed by Hesiod in that celebrated passage of his book, Oper. & Dier. v. 274. Τὸνδε γαρ, &c. [[Hesiod, Works and Days, lines 276ff. The meaning of which is, Brute animals devour one another, because they have no idea of justice, but to men nature hath given a sense of justice, which far exalts them above the brute creation. Jac. Cujacius hath not removed the difficulty in his notes ad Inst. p.8. tom. 1. by saying, “What the brutes do by a natural impulse, if men do the same by reason, they act according to the law of nations.” A reference to the notes on Justinian’s Institutes by the French humanist jurist Jacques Cujas, or Jacobus Cujacius (1522–90), which are included in vol. 1 of his collected works (Cujas, Opera omnia). For thus an action will not be agreeable to the law of nature and nations merely because brute animals do the same, but because it is acting by the direction of right reason.]]
[* ] [[See preceding note.]]
[† ] The law of nature is therefore of a larger extent than the law of nations; for there is nothing dictated or prescribed by right reason, to which every particular is not obliged in some manner to conform himself. But there are certain parts of the law of nature, which cannot so properly be applied to whole societies, e.g. The laws and rights belonging to matrimony, paternal power, &c.
[* ] Many things which are referred to the positive law of nations, arise either from the law of nature itself, or from customs, or from some certain law common to many nations. Thus the rights of ambassadors, for the greater part, are deducible from the law of nature. Many things were observed among the Greeks, which barbarous nations payed no regard to, v.g. giving a truce to the vanquished to carry off their killed. The manners and customs of the Germans became afterwards common almost to all nations, as Grotius has observed, de jure belli & pacis, 2. 8. 1. 2. In fine, even among christian customs, some have so far fallen into desuetude, that there is no remaining vestige of them. Leibnitz, praefat. Cod. jure gent. dipl. p. 8. who observes, that many things established by the pope of Rome as head of the christian state, are held for the common law of christian nations. [[See Leibniz, Codex iuris gentium diplomaticus, vol. 1, Praefatio ad Lectorem, 9. This Hertius& Puffend. de jure nat. & gentium, l. 2. c. 3. §23. illustrates by an example, from the use of cross-bows against christians. Heineccius’s reference is to the notes by the German jurist Johann Nikolaus Hertius (1651–1710) on Samuel Pufendorf, Acht Bücher vom Natur- und Völkerrecht. A philosopher, jurist, and historian, Pufendorf (1632–94) was one of the most influential theorists of natural law in the early European Enlightenment. This work is a German translation of his seminal De jure naturae et gentium of 1672.]]
[2 ] Arthur Ashley Sykes (1684–1756) was an Anglican clergyman and latitudinarian controversialist who wrote The Principles and Connexion of Natural and Revealed Religion Distinctly Considered.
[3 ] Montesquieu, Persian Letters, letters 94 and 95.