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SECTION XV - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations [1738]

Edition used:

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).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SECTION XV

These two laws are the foundation of civil laws.Now, we may be very short on this head. For, having found what are the laws and rules men must observe, in order to attain to the greatest perfection and happiness their nature is capable of, it is plain, that the rules and laws they ought to observe, or agree to observe, when they unite together in certain civil or political bodies for the promotion of their common happiness, can be no other than those very laws of nature which have been delineated. And it is very easy to trace the civil laws in well regulated states into the principles above explained as their foundations. The laws of a civil or political state may be divided into these three classes; the laws relating to the private property, quiet and happiness of persons; the laws relating to religion; and those which concern the public order of the government. The first comprehends the laws which regulate covenants or contracts of all kinds, the security of property, alienation and prescription, regular propagation and education, guardianships, successions, testaments, and other matters of the like nature. Now, all these laws are, or ought to be nothing else in their spirit, but the order of that love which we reciprocally owe to one another. Thus the spirit and substance of all the laws, with regard to engagements or covenants, consists in forbidding all infidelity, treachery, double dealing, deceit and knavery, and all other ways of doing hurt and wrong. Thus the regular propagation and education of mankind, or the natural order in which our benevolence ought to exert itself, are the foundation of all the laws relating to marriage, and to parental and filial duties, and to unlawful conjunctions. The same is likewise the foundation of the laws relative to successions. For the order of successions is founded on the necessity of continuing and transmitting the state of society from one generation to another; which is done, by making certain persons to succeed in the place of those who die, and enter upon their rights and offices, their relations and engagements, which are capable of passing to posterity. Good laws of this kind have their foundation on the order in which our benevolence ought to exert itself in parents to children, and reciprocally in children to parents; and on that perfect security of property which is necessary to encourage industry; for men are spurred to industry, not merely by regard to themselves, but by regard to their posterity; and would be very indifferent about making acquisitions, were they not sure of disposing of them as they please, and of transmitting them after they are gone to those they love best, and are most nearly interested in. Many other laws have their foundation in the same principles, and are merely intended to secure the perpetuity of property, such as the regulations about prescription; or to render contracts of various sorts about labour and property equally free and certain. Sumptuary laws have their foundation likewise in the care that parents ought to have of making and leaving suitable provisions to their children; and, in general, in the necessity of promoting industry, and discouraging that idleness, effeminacy and debauchery, which is known to be the source of so many direful ills, and the greatest bane of mankind; the very reverse of all that renders human society either great or happy.

The laws of religion, under which we may comprehend all regulations with regard to education, the main design of which is to tincture the mind early with just notions of God and of human duties, and to form good habits and dispositions; as well as regulations about public worship: these have their foundation in the strict alliance between religion and virtue, in the chief duty of pa-rents towards their children, and in the general interest of society, which is universal virtue.

The public laws are those which fix or regulate the order of making, and of executing laws for the general good. And what these ought to be, must likewise be determined from the nature of mankind, and of that happiness which they are made and intended for by nature. Men may very properly be said to be intended for that civil state, in which, it is plain, from experience, the happiness for which mankind are formed by nature, may be best attained. And the orders of such a civil state must be deduced from the lines of them, as a great author expresses it, which appear in human nature. It is according to them, says he, that this building must be limned. But we are not now to enter into this curious and important enquiry. All we would take notice of, with regard to the civil laws, which it is the design of civil society to make and execute, is, 1. That in all well-regulated states, the sum and substance of what is called its civil laws, are really laws of natural and universal obligation. Whatever hath the force of civil law in civil courts, derives that force from civil authority. Yet the chief part of civil law is really natural law. What belongs particularly to the civil law, may be reduced, as Pufendorff observes, to these two heads: To certain forms prescribed, and certain methods to be observed in civil affairs, either in transferring rights, or else in laying obligations upon persons, which shall be looked upon to be valid in the civil courts; and to the several ways how a man is to prosecute his rights in the same courts.31 So that if we give the law of nature all that belongs to it, and take away from the Civilians what they have hitherto promiscuously treated of, we shall bring the civil law to a much narrower compass than it at first sight appears to be. In all commonwealths the natural law supplies the defects of the civil. And in all commonwealths natural law ought to be the substance of the civil law; and the regulations it adds about things which the law of nature prescribes only in a general and indefinite manner, ought to be conformable to the spirit and scope of the law of nature. For which reason, Hobbes calls the law of nature the unwritten civil law;32 and the constitutions of particular commonwealths, justly adapted to the public good, (which, as Cicero says, ought to be the end of all laws, and is the best comment upon, and interpretation of them)33 are properly called, by some authors, appendages to the law of nature. 2. But all the laws of nature have not the force of civil laws allowed them in commonwealths; but such only, upon the observation of which the common quiet of mankind intirely depends; as well because the controversies about the violation of them would be very perplexed and intricate, as to prevent the multiplication of litigious suits; and also, that the good and virtuous might not be deprived of the most valuable part of their character, the doing well out of reverence to their Creator, and sincere love to mankind, without regard to the fears of human penalties. For this they must necessarily lose, when there is no distinction made whether a man doth well out of love to virtue, or out of fear of punishment. 3. Civil laws are justly said to respect external actions only, whereas moral laws principally regard the habit of the mind, because civil punishments can only be applied against what appears. Yet it is an antient and true observation, that the best and most useful laws, and which are approved of by all such as are subject to them, are of no use, unless subjects be trained up and educated in a manner of living conformable to them. Plato says, that to lay the foundations of a good government, we must first begin by the education of children, and must make them as virtuous as possible; as an experienced gardiner employs his care about the young and tender plants, and then goes on to others.34

  • leges sine moribus
  • Vanae proficiunt.

  • Hor. l. 3. Od. 24.35

Isocrates (in Areopagit.) tells us, “The Athenians did not believe that virtue derived so much advantage and assistance in its growth from good statutes as from custom and practice. The greatest part of men must, said they, of necessity frame their minds according to those patterns by which they were first taught and instructed; but a numerous and accurate establishment of laws, is really a sign of the ill condition of the commonwealth, edicts and ordinances being then heap’d upon one another, when governments find themselves obliged to endeavour the restraining of vice, as it were by banks and mounds. That it became wise magistrates, not to fill the public places with proclamations and decrees, but to take care that the subjects should have the love of justice and honesty firmly rooted in their minds. That not the orders of the senate or people, but good and generous education was the thing which made a government happy: Inasmuch as men would venture to break through the nicest exactness of political constitutions, if they had not been bred up under a strict obedience to them. Whereas those who had been formed to virtue by a regular and constant discipline, were the only persons who by their just conformity could make good laws obtain a good effect. The principal design of the Athenians, when they made these reflexions, was not how they might punish disorders, but how they might find a way of making the people to be willing not to do any thing that might deserve punishment. This last view seemed to them worthy of themselves and their employment. But as for the other, or an exact application to punish people, they thought it a business proper only for an enemy. And therefore they took care of all the subjects in general, but particularly of the youth.”36

Thus I have endeavoured to deduce the laws of nature, and the end of civil society and its laws, by an analysis of the human mind, from our internal principles and dispositions. For the virtue or excellence of any being can be nothing else but its nature brought to the perfection of which it is capable. And therefore, the virtue, excellence, or happiness of a being must be deduced from its constitution and situation. Virtus enim in cujusque rei natura supremum est & perfectio.—Tum oculi, in oculi natura, supremum & perfectio; tum hominis in hominis natura supremum & perfectio.—Hominis virtus est hominis naturae perfectio, nam & equi virtus est ea, quae naturam ejus ad supremum perducit.” Timaeus Locrus de anima mundi, & Metopus Pythagoreus de virtute.37 So Cicero de legibus, l. 1. n. 15. & de finibus passim.

FINIS.

BIBLIOGRAPHY

The bibliography identifies the works referred to in Heineccius’s text and in Turnbull’s notes and additions, including editions used in the present editors’ annotations. It also lists any other sources that were originally published before 1800 and are referred to in the new introduction.

[31 ] See Pufendorf, Of the Law of Nature, VIII.I.I.

[32 ] “Civill, and Naturall Law are not different kinds, but different parts of Law; whereof one part being written, is called Civill, the other unwritten, Naturall” (Thomas Hobbes, Leviathan, chap. 26).

[33 ] Perhaps a reference to Cicero’s statement in De legibus that “the well-being of the people should be the supreme law” (“salus populi suprema lex esto”); see Cicero, De legibus, III, iii, 8, in De re publica; De legibus.

[34 ] The importance of children’s education for the political community was a central theme in Plato’s Republic. See in particular the passages from 376d.

[35 ] “What use are laws, vain as they are without morals?” Horace, Odes, 3.24.35–36, in Odes and Epodes.

[36 ] Isocrates, Areopagiticus, 182–83, in Isocrates, Opera omnia, vol. II, 174–91.

[37 ] This quote is in fact from Hippodamus Thurius, Peri eudaimonias: “For virtue is the highest level and the perfection in the nature of everything. The highest level and the perfection of the eye is in the nature of the eye. The highest level and the perfection in a man is in the nature of a man.” In Gale, Opuscula mythologica, physica et ethica, 660. It is also used by Turnbull in his Principles of Moral Philosophy, vol. I, 185.