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chapter ii: Of the Rule of Human Actions, or of Laws in general; and the different Qualifications of those Actions - Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature [1673]

Edition used:

The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, ed. Ian Hunter and David Saunders, with Two Discourses and a Commentary by Jean Barbeyrac, trans. David Saunders (Indianapolis: Liberty Fund, 2003).

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.


chapter ii

Of the Rule of Human Actions, or of Laws in general; and the different Qualifications of those Actions

I.The Necessity of a Rule.Because all Human Actions depending upon the Will, have their Estimate according to the concurrence thereof; but the Will of every Person not only differs in many respects from that of all others, but also alters and changes it self, becoming different in the same Person at one time from what it was before at another; therefore to preserve Decency and Order among Mankind,L. N. N. l. 2. c. 1. it was necessary there should be some Rule, by which they should be regulated. For otherwise, if, where there is so great a Liberty of the Will, and such Variety of Inclinations and Desires, any Man might do whatsoever he had a mind to, without any regard to some stated Rule, it could not but give occasion to vast Confusions among Mankind.

II.Law, defined. L. N. N. l. 1. c. 6. §4.This Rule is call’d Law; which is, *A Decree by which the Superior obliges one that is subject to him, to accommodate his Actions to the Directions prescrib’d therein.2

III.Obligation. L. N. N. l. 1. c. 6. §5.That this Definition may the better be understood, it must first be enquired, What is an Obligation; whence is its Original; who is capable of lying under an Obligation; and who it is that can impose it. By Obligation then is usually meant, A moral Bond, whereby we are ty’d down to do this or that, or to abstain from doing them.3 That is, hereby a kind of a Moral Bridle is put upon our Liberty; so that though the Will does actually drive another way, yet we find our selves hereby struck as it were with an internal Sense, that if our Action be not perform’d according to the prescript Rule, we cannot but confess we have not done right; and if any Mischief happen to us upon that Account, we may fairly charge our selves with the same; because it might have been avoided, if the Rule had been follow’d as it ought.

IV.Man capable of being obliged. L. N. N. l. 1. c. 6. §6.And there are two Reasons why Man should be subject to an Obligation; one is, because he is endow’d with a Will, which may be divers ways directed, and so be conform’d to a Rule: the other, because Man is not exempt from the Power of a Superior. For where the Faculties of any Agent are by Nature form’d only for one Way of acting, there ’tis to no purpose to expect any thing to be done of choice: and to such a Creature ’tis in vain to prescribe any Rule; because ’tis uncapable of understanding the same, or conforming its Actions thereto. Again, if there be any one who has no Superior, then there is no Power that can of right impose a Necessity upon him; and if he perpetually observes a certain Rule in what he does, and constantly abstains from doing many things, he is not to be understood to act thus from any Obligation that lies upon him, but from his own good pleasure. It will follow then, for any one to be capable of lying under Obligation, it is necessary, that on the one hand he have a Superior, and on the other, that he be both capable of understanding the Rule prescrib’d him by his Superior, and also endu’d with a Will which may be directed several ways; and yet which (when the Law is promulged by his Superior) knows he cannot rightly depart therefrom. And with all these Faculties, ’tis plain, Mankind is furnish’d.

V.Who can oblige. L. N. N. l. 1. c. 6. §9.An Obligation is superinduced upon the Will of Men properly by a Superior; that is, not only by such a one as being greater or stronger, can punish Gainsayers: but by him who has just Reasons to have a Power to restrain the Liberty of our Will at his own Pleasure.4 Now when any man has either of these, as soon as he has signify’d what he would have, it necessarily stirs up, in the Mind of the party concern’d, Fear mixt with Reverence; the first arises from the consideration of his Power, the5 other proceeds from those Reasons on which the Authority of our Superior is founded; by which we are convinced, that had we nothing to fear from him, yet we ought to conform our Actions to his Will. For he that can give me no other Reason for putting me under an Obligation against my Will, beside this, that he’s too strong for me, he truly may so terrifie me, that I may think it better to obey him for a while than suffer a greater Evil: but when this Fear is over, nothing any longer hinders, but that I may act after my own Choice and not his. On the contrary, he that has nothing but Arguments to prove that I should obey him, but wants Power to do me any Mischief, if I deny: I may with Impunity slight his Commands, except one more potent take upon him to make good his despis’d Authority. Now the Reasons upon which one Man may justly exact Subjection from another, are two: 6 First, if he have been to the other the Original of some extraordinary Good; and if it be plain, that he designs the others Welfare, and is able to provide better for him than ’tis possible for himself to do; and on the same Account does actually lay claim to the Government of him: Secondly, if any one does voluntarily surrender his Liberty to another, and subject himself to his Direction.

VI.The Legislator and the true meaning of the Law to be known. L. N. N. l. 1. c. 6. §14.Farthermore, that a Law may exert its Force in the Minds of those to whom it is promulged, it is requir’d, that both the Legislator and the Law also be known. For no Man can pay Obedience, if he know not whom he is to obey, and what he is to perform. Now the Knowledge of the Legislator is very easy; because from the Light of Reason ’tis certain the same must be the Author of all the Laws of Nature, who was the Creator of the Universe: Nor can any Man in Civil Society be ignorant who it is that has Power over him.7 Then for the Laws of Nature, it shall be hereafter declar’d how we come to the Knowledge of them. And as to the Laws of a Man’s Country or City, the Subject has notice given of them by a Publication plainly and openly made. In which these two Things ought to be ascertain’d, that the Author of the Law is he, who hath the Supreme Authority in the Community; and that this or that is the true Meaning of the Law. The First of these is known, if he shall promulge the Law with his own Mouth, or deliver it under his own Hand; or else if the same be done by such as are delegated to that purpose by him, whose Authority there is no Reason to call in question, if it be manifest, that such their acting belongs to that Office they bear in the Publick, and that they are regularly placed in the Administration thereof; if these Laws are brought in use at judicial Proceedings, and if they contain nothing derogatory to the Sovereign’s Power. That the Latter, that is, the true Sense of the Law may be known, it is the Duty of those who promulge it, in so doing to use the greatest Perspicuity and Plainness; and if any thing obscure do occur therein, an Explanation is to be sought of the Legislator, or of those who are publickly constituted to give judgment according to the Laws.

VII.Two parts of a perfect Law. L. N. N. l. 1. c. 6. §14.Of every perfect Law there are two Parts: One, [Precept] whereby it is directed what is to be done or omitted: the other, [the Sanction] wherein is declared what Punishment he shall incur, who neglects to do what is commanded, or attempts that which is prohibited. For as through the Pravity of Human Nature ever inclining to things forbidden, it is to no purpose to say, Do this, if no Punishment shall be undergone by him who disobeys; so it were absurd to say, You shall be punish’d, except some Cause preceeded, by which a Punishment was deserv’d. Thus then all the force of a Law consists in signifying what the Superior requires or forbids to be done, and what Punishment shall be inflicted upon the Violators. But the Power of obliging, that is, of imposing an intrinsick Necessity; and the Power of forcing, or, by the proposal of Punishments compelling the Observation of Laws, is properly in the Legislator, and in him to whom the Guardianship and Execution of the Laws is committed.

VIII.It ought to command things possible and beneficial.Whatsoever is enjoyn’d by any Law, ought not only to be in the Power of him to perform on whom the Injunction is laid, but it ought to contain somewhat advantagious either to him or others. For as it would be absurd and cruel to exact the doing of any thing from another, under a Penalty, which it is and always was beyond his Power to perform; so it would be silly and to no purpose to put a Restraint upon the natural Liberty of the Will of any man, if no one shall receive any Benefit therefrom.

IX.Power of Dispensing. L. N. N. l. 1. c. 6 §17.But though a Law does strictly include all the Subjects of the Legislator who are concern’d in the Matter of the same, and whom the same Legislator at first intended not to be exempted: yet sometimes it happens that particular persons may be clear’d of any obligation to such Law: and this is call’d Dispensing. But as he only may dispense, in whose Power it is to make and abrogate the Law; * so great Care is to be taken, lest by too frequent Dispensations, and such as are granted without very weighty Reasons, the Authority of the Law be shaken, and occasion be given of Envy and Animosities among Subjects.

X.Equity. L. N. N. l. 5. c. 2. §21.Yet there is a great Difference between Equity and Dispensing: Equity being a Correction of that in which the Law, by reason of its General Comprehension, was deficient: or an apt Interpretation of the Law, by which it is demonstrated, that there may be some peculiar Case which is not compriz’d in the Universal Law, because if it were, some Absurdity would follow. For it being impossible that all Cases, by Reason of their infinite Variety, should be either foreseen or explicitly provided for; therefore the Judges, whose Office it is to apply the general Rules of the Laws to special Cases, ought to except such from the Influence of them, * as the Lawgiver himself would have excepted if he were present, or had foreseen such Cases.

XI.Actions allowable, good and bad. L. N. N. l. 1. c. 7. §1.Now the Actions of Men obtain certain Qualities and Denominations from their relation to and agreement with the Law of Morality. And all those Actions, concerning which the Law has determin’d nothing on either side, are call’d allowable, [indifferent] or permitted. Here we may observe, that in Civil Life, where it is impossible to come to perfect Exactness in all points, even † those things are said to be allowable, upon which the Law has not assign’d some Punishment, though they are in themselves repugnant to Natural Honesty. We call those Actions which are consonant to the Law good, and those that are contrary to it bad: But that any Action should be good, ’tis requisite, that it be exactly agreeable in every ‡ point to the Law; whereas it may be evil if it be deficient in one Point only.

XII.Justice of Persons. L. N. N. l. 1. c. 7. §6.As for Justice, it is sometimes the Attribute of Actions, sometimes of Persons. When it is attributed to Persons, ’tis usually defin’d to be, A constant and perpetual Desire of giving every one their own.8 For he is called a just Man, who is delighted in doing righteous Things, who studies Justice, and in all his Actions endeavours to do that which is right. On the other side, the unjust Man is he that neglects the giving every Man his own, or, if he does, ’tis not because ’tis due, but from expectation of Advantage to himself. So that a just Man may sometimes do unjust Things, and an unjust Man that which is just. But the Just does that which is right, because he is so commanded by the Law; and never commits any unjust Acts but only through Infirmity; whereas the wicked Man does a just Thing for fear of the Punishment which is the Sanction of the Command, but such unjust Acts as he commits proceed from the Naughtiness of his Heart.

XIII.Of Actions. L. N. N. l. 1. c. 7. §7.But the Justice of Actions not only consists in their due Conformity to Law, but it includes in it likewise a right Application of them to those Persons to whom the Action is perform’d: So that we apprehend that Action to be just, which, with full Design and Intention, is apply’d to the Person to whom it is due. Herein therefore, the Justice of Actions differs from their Goodness chiefly, that the latter simply denotes an Agreement with the Law; whereas Justice also includes the Regard they have to those *Persons upon whom they are exercised. Upon which Account Justice is call’d a Relative Virtue.

XIV.Division of Justice. L. N. N. l. 1. c. 7. §8.Men do not generally agree about the Division of Justice. The most receiv’d Distinction is, into Universal and Particular. The first is, when every Duty is practised and all right done to others, * even that which could not have been extorted by Force, or by the Rigor of Law. The latter is, when that Justice only is done a Man, which in his own right he could have demanded; and this is wont to be again divided into †Distributive and Commutative. The Distributive takes place in Contracts made between Partners in Fellowship, concerning fair Partition of Loss and Gain according to a rate. * The Commutative is mostly in Bargains made upon even hand about Things and Doings relating to Traffick and Dealing.

XV.Injustice what. L. N. N. l. 1. c. 7. §14.Knowing thus, what Justice is, ’tis easie to collect what is Injustice. Where it is to be observ’d, that such an unjust Action is call’d Wrong-doing, which is premeditately undertaken, and by which a Violence is done upon somewhat which of absolute Right was another Man’s due, or, which by like Right he one way or other stood possess’d of. And this Wrong may be done after a threefold Manner: 1. If that be deny’d to another which in his own right he might demand (not accounting that which from Courtesie or the like Virtue may be another’s due): Or, 2. If that be taken away from another, of which by the same right, then valid against the Invader, he was in full possession: Or, 3. If any Damage be done to another, which we had not Authority to do to him. Beside which, that a Man may be charged with Injustice, it is requisite that there be a naughty Mind and an evil Design in him that acts it. For if there be nothing of these in it, then ’tis only call’d Misfortune, or an Error; and that is so much slighter or more grievous, as the Sloth and Negligence which occasion’d it was greater or less.

XVI.Laws distinguisht. Natural and Positive L. N. N. l. 1. c. 6. §18.Laws, with respect to their Authors, are distinguished into Divine and Humane; that proceeds from God, and this from Men. But if Laws be considered, as they have a necessary and universal Congruity with Mankind, they are then distinguisht into Natural and Positive.*Natural Law is that which is so agreeable with the rational and sociable Nature of Man, that honest and peaceable Society could not be kept up amongst Mankind without it, Hence it is, that this may be sought out, and the knowledge of it acquired by the light of that Reason, which is born with every Man, and by a consideration of Human Nature in general. Positive Law is that which takes not its rise from the common condition of Human Nature, but only from the good pleasure of the Legislator: This likewise ought to have its Foundation in Reason, and its End ought to be some Advantage to those Men, or that Society, for which it is designed. Now the Law Divine, is either Natural or Positive; but all Human Laws, strictly taken, are Positive.

[*] On this Head consult H. Grotius de Jure Belli & Pacis, l. 1. c. 1. §9.

[2.]Pufendorf’s construction of law in terms of the commands of a superior is aimed squarely at the Thomistic- scholastic conception of law as the rule of an (independently) moral action or nature.

[3.]The phrases “moral Bond” and “Moral Bridle” are innovations by the English editors. Pufendorf’s original phrase is vinculum juris, which Tooke translated correctly as “rightful Bond” and Barbeyrac as lien de Droit. Here the editors seek to add a moral- philosophical inflection to Pufendorf’s juristic construction of obligation.

[4.]Pufendorf’s construction of the superior—hence of obligation—in terms of the combination of coercive power and just reasons is one of the most crucial and controversial passages in the Whole Duty. This is largely because moral theologians and moral philosophers, including Barbeyrac, require their separation, insisting on the priority of the just reasons, understood as moral justifications for the exercise of political authority. Pufendorf, however, treats the power of the superior and the rationale (“just reasons”) for accepting one as conjoint conditions for the creation of obligation. (See note 6 on p. 45). This is one of the central points at issue in Barbeyrac’s commentary on Leibniz’s attack on Pufendorf. See Barbeyrac’s Judgment of an Anonymous Writer in the appendix to this volume.

[5]The following formulation—“the other proceeds … is founded”—in which the reasons for complying with the superior’s will are characterized as founding his authority, is not Pufendorf’s, having been borrowed from Barbeyrac by the editors. Tooke’s original rendering—“for the sake of those other Reasons, which even without Fear, ought to allure any man to compliance with his [the superior’s] Will”—is accurate. Barbeyrac’s modification is an attempt to insert the notion of a rational moral grounding of political authority into a text from which it has been deliberately excluded.

[6]This division of the “just reasons” for political subjection into two groups—the first concerning the relations of vulnerability and protection linking subject and superior, the second with the subject’s voluntary consent to subjection—is another of Barbeyrac’s innovations carried across by the editors of the 1716/35 edition. Absent this division, Pufendorf’s original (and Tooke’s translation) treats consent not as a separate condition for legitimate subjection but simply as the subject’s agreement to exchange obedience for security. The exchange of obedience for security constitutes the “just reasons” for legitimate political authority.

[7]This and the sentences immediately following contain characteristic instances of the manner in which Tooke adapts Pufendorf’s political lexicon to its English dissemination. Tooke’s “Man in Civil Society” translates Pufendorf’s civis, or citizen, translated by Barbeyrac as citoien and by Weber as Bürger. Similarly, in the next sentence but one, Tooke’s “Laws of a Man’s Country or City” represents his domestication of Pufendorf’s leges civiles, or civil laws. Finally, in the next sentence, Tooke’s characterization of the author of the law as “he, who hath the Supreme Authority in the Community” is his rendering of Pufendorf’s quem summum in civitate est imperium, “he who holds sovereignty in the state.” These and similar circumlocutions, which are used throughout Tooke’s translation, represent his transposition of Pufendorf’s statist political vocabulary—derived from Roman law and German political jurisprudence (Staatsrecht)—into a cultural register dominated by English common law and sovereignty conceived of as the “king in parliament.”

[*] See Grotius de Jure Belli & Pacis, L. 2. c. 20. Sect. 21. &c.

[*] See Grotius de Jure Belli & Pacis, L. 2. c. 20. Sect. 26, 27.

[†] See Grotius de Jure Belli & Pacis, Lib. 3. cap. 4. §2.

[‡] The Points here spoken of mean the Quality, or the Intention of the Agent; the Object, the End pursued thereby, and other like Circumstances of the Action. Thus, though an Action may in every respect answer the Direction of the Law, it may be nevertheless charged on the Doer as a bad Action, especially in the Sight of God, not only when it was done upon an ill Principle with a vitious Intention, but also when it was done through Ignorance, or on some other Motive different from what the Law prescribes. I say it may be accounted a bad Action in the Sight of God; for the outward Obedience of the Laws sufficiently answering the Ends of Civil Society, which is the Aim only of Politick Legislators, they never concern themselves with the Intention of the Agent, whether it be just or unjust, provided the External Act has nothing in it but what is conformable to the Law. See L. N. N. L. I. Cap. VII. §3, 4 and Lib. I. Cap. VIII. §2, 3. [In borrowing Barbeyrac’s note (XI.2, p. 36) the editors again make use of his softening of Pufendorf’s strict separation of the civil and theological domains. In observing that not all natural law will be enacted as civil law, Pufendorf accepts that the civil law will permit actions contrary to morality. In keeping with his desire to maintain some continuity between civil and religious morality, however, Barbeyrac treats this state of affairs as lamentable, insisting that the perpetrators of such actions remain guilty in the sight of God. This is a central theme of Barbeyrac’s two discourses—the Discourse on What Is Permitted by the Laws and the Discourse on the Benefits Conferred by the Laws—which are reproduced in the appendix to this volume.]

[8]Here Pufendorf invokes the standard Roman law formula, from the Institutes of Justinian, that Justitia est constans et perpetua voluntas jus suum cuique tribuere. Like Hobbes, Pufendorf restricts this concept to the civil state, for only under civil authority are men capable of adhering to contracts.

[*] Good Actions might have been more properly distinguished with respect to the three Objects they may have; which are, G O D, our Neighbour, and our selves. (see §13. of the following Chapter.) Such good Actions, as have G O D for their Object, are comprehended under the general Name of P I E T Y. Such good Actions as have for their Object other Men, are signify’d by the Name of J U S T I C E. And those good Actions which have only a direct respect to our selves, may be contain’d in the Term Moderation, or T E M P E R A N C E. This Division of good Actions being the most Simple and Natural one, is also the most Ancient one. See L. N. N. Lib. II. Cap. III. §24. [Barbeyrac’s note (XIII.1, p. 38) is a response to Pufendorf’s discussion of justice as a relational virtue, which derives from Aristotle’s Nichomachean Ethics (V. 4–5). Having already refused to accept that goodness can be equated with conformity to the law, Barbeyrac now provides it with an independent foundation, in the relations to God, others, and myself. He thus seeks to outflank Pufendorf’s civil ethics, where these relations are subordinated to natural law understood as the rules of sociability. For more on this, see Barbeyrac’s two discourses in the appendix.]

[*] The Duties here meant, by such as could not have been extorted by Force or Law, are such as are not absolutely necessary for the Preservation of Mankind, and for the Support of Human Society in general, although they serve to embellish it, and render it more commodious. Such are the Duties of Compassion, Liberality, Beneficence, Gratitude, Hospitality, and in one word all that is contain’d under that comprehensive Name of Charity, or Humanity, as it is oppos’d to rigorous Justice properly so call’d, the Duties of which, generally speaking, have their Foundation in Agreement. I say generally speaking; for tho’ there be no Agreement made, we lie under an indispensible Obligation to do wrong to no one, to make good the Damage any one has sustain’d by us, to look upon each other as Equals by Nature, &c. But here we ought to observe, that in case of extream Necessity, the Imperfect Right that others have to these Duties of Charity from us, becomes a Perfect Right; so that Men may by force be obliged to the performance of these Duties at such a time, tho’ on all other Occasions the Performance of them must be left to every Man’s Conscience and Honour. See L. N. N. lib. 1. cap. 7. §7. lib. 3. cap. 4. §6. [In this note (XIV.1, p. 38), Barbeyrac seeks to soften Pufendorf’s distinction between imperfect duties (duties of conscience incapable of being compelled as strict right) and perfect duties (compellable duties grounded in contract and positive law). He argues that some moral duties are also compellable, while others may become so under conditions of extremity.]

[†] This Division is not compleat, because it comprehends no other Duties but what Men are oblig’d to the performance of towards others, by virtue of an Engagement enter’d into to that purpose; but there are Duties that our Neighbour may in strict justice demand at our hands, independently of all such Engagement or Agreement. See the preceeding Note. I should rather approve of Mr. Buddeus’s Division of this Particular, or Strict Justice (Elem. Pract. Phil. par. II. Cap. II. §46) into Justice as it is exercised between Equals and Equals, and as it is exercised between Superiors and Inferiors. The Former of these is subdivided into as many different Sorts as there are Duties, which one Man may demand in strictness the performance of from every other Man, consider’d as such, and one Citizen from every other Member of the same Body. The Latter of these comprehends as many different Sorts as there are kinds of Societies wherein some command and others obey. [As in the preceding note, in this one (XIV.2, p. 39) Barbeyrac attempts to forestall the clear tendency of Pufendorf’s discussion, namely, the identification of strict or particular justice with positive law. As always, Barbeyrac wishes to subordinate the positive institutions of law and state to the higher moral necessities of conscience and universal justice, arguing that some moral rights might be claimed as a matter of justice.]

[*] See Grotius de Jure Belli & Pacis, l. 1. c. 1. §8.

[*] See Grotius de Jure Belli & Pacis, Lib. I. Cap. 1. §10.