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chapter vii: Of the several Parts of Government 38 - Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature [1673]

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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).

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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 vii

Of the several Parts of Government38

I.L. N. N. l. 7. c. 4.What are the Constituent Parts of Supreme Power, and by what Methods it exerts its Force in Civil Societies, may easily be gather’d from the Nature and End of the said Societies.

II.Will of the Supreme to be made known. L. N. N. l. 7. c. 4. §2.In a Civil Society all Persons are supposed to have submitted their Will to the Will and Pleasure of the Governours, in such Affairs as concern the Safety of the Publick, being willing to do whatsoever they require. That this may be effected, it is necessary, that the Governors do signify to those who are to be governed, what their Will and Pleasure is concerning such Matters. And this they do, not only by their Commands, directed to particular Persons about particular Affairs; but also by certain general Rules, whence all Persons may, at all Times, have a clear and distinct Knowlege of what they are to do or omit. By which likewise it is commonly defined and determined what ought to be looked upon to be each Man’s Right and Property, and what does properly belong to another; * what is to be esteemed Lawful, and what Unlawful in any Publick Society; what Commendable, or what Base; what every Man may do by his own Natural Liberty, or how every one may dispose and order his own particular Rights towards the Advancement of the common Peace and Tranquillity: In fine, what, and after what manner, every one by Right may lay Claim to from another. For it conduces very much to the Peace and Prosperity of any Civil Society, that all these Things should be clearly and plainly laid down and determined.

III.Penalty. L. N. N. l. 7. c. 4. §3.Moreover, this is the Chief End of Civil Societies, That Men, by a mutual Agreement and Assistance of one another, might be secured against the Injuries and Affronts, which may, and very often do, befall us by the Violence of other Men. Now that this End may the better be obtained by those Men, with whom we are link’d together in the same Society; it is not sufficient, that they should mutually agree among themselves not to injure one another: Nor is it enough, that the bare Will and Pleasure of the Supreme Magistrate should be made known to them; but ’tis likewise requisite, that there should be a certain Fear and Dread of Punishment, and a Power and Ability of inflicting the same. Which Punishment or Penalty, that it may be sufficient for this End, is to be so ordered, that there may plainly appear a greater Damage in violating the Laws, than in observing them; and that so the Sharpness and Severity of the Penalty, may outweigh the Pleasure and Advantage gotten, or expected by doing the Injury: Because it is impossible but that of two Evils Men should chuse the least. For although there are many Men who are not restrained from doing Injuries by any Prospect of Punishment hanging over their Heads; yet that is to be looked upon as a Case that rarely happens, and such as, considering the present Condition and Frailty of Mankind, cannot be wholly avoided.

IV.Controversies. L. N. N. l. 7. c. 4. §4.Because also it very often happens, that many Controversies do arise about the right Application of the Laws to some particular Matters of Fact, and that many Things are to be nicely and carefully considered in order to determine whether such a Fact may be said to be against Law; therefore, in order to the Establishment of Peace and Quietness amongst the Subjects, it is the Part of the supreme Governour to take Cognizance of, and determine the Controversies arising between Subject and Subject, and carefully to examine the Actions of particular Persons, which are found to be contrary to Law, and to pronounce and execute such Sentence as shall be agreeable to the same Law.

V.Power of Peace and War. L. N. N. l. 7. c. 4. §5.But that those, who by mutual Agreement have constituted a Civil Society, may be safe against the Insults of Strangers, the supreme Magistrate has Power to assemble, to unite into a Body, and to arm, or, instead of that, to list as many Mercenaries as may seem necessary, considering the uncertain Number and Strength of the Enemy, for the maintaining the publick Security; and it is likewise intirely left to the Discretion of the same Magistrate, to make Peace whenever he shall think convenient.

And since, both in Times of Peace and War, Alliances and Leagues with other Princes and States are of very great Use and Importance, that so the different Advantages of divers States and Governments may the better be communicated to each other, and the Enemy, by their joint Forces, may be repulsed with the greater Vigour, or be more easily brought to Terms. It is also absolutely in the Power of the supreme Magistrate to enter into such Leagues and Treaties as he shall think convenient to each Occasion; and to oblige all his Subjects to the Observation of them, and at once to derive and convey down to the whole Civil Society, all the Benefits and Advantages thence arising.

VI.Publick Officers. L. N. N. l. 7. c. 4. §6.Seeing also the Affairs of any considerable State, as well in Time of War as Peace, cannot well be managed by one Person, without the Assistance of subordinate Ministers and Magistrates, it is requisite that able Men should be appointed by the supreme Magistrate, to decide and determine in his Room39 the Controversies arising between Subject and Subject; to inquire into the Councils of the Neighbouring Princes and States; to govern the Soldiery; to collect and distribute the publick Revenue: and, lastly, in every Place to take special Care of the Common Good. And from each of these Persons the supreme Magistrate may, and ought to exact the Performance of their Duty, and require an Account of their Behaviour in their respective Stations.

VII.Taxes. L. N. N. l. 7. c. 4. §7.And because the Concerns of any Civil Society can, neither in Time of War nor Peace, be managed without Expences, the supreme Authority has Power to compel the Subjects to provide the same. Which is done several Ways; either when the Community appropriates a certain Portion of the Revenues of the Country they possess, for this Purpose; or when each Subject contributes something out of his own Estate, and, if Occasion requires, gives also his personal Help and Assistance; or when Customs are set upon Commodities imported and exported, (of which the first chiefly affects the Subjects, and the other Foreigners;) or, lastly, when some moderate Tax is laid on those Commodities which are spent.

VIII.Publick Doctrines. L. N. N. l. 7. c. 4. §8.To conclude: Since the Actions of each Person are governed by his own particular Opinion, and that most People are apt to pass such a Judgment upon Things as they have been accustomed unto, and as they commonly see other People judge; so that very few are capable of discerning what is just and honest; upon this Account therefore it is expedient for any Civil Society, that such Kind of Doctrines should be publickly taught, as are agreeable to the right End and Design of such Societies, and that the Minds of the Inhabitants should be seasoned betimes with these Principles. * It does therefore belong to the supreme Magistrate to constitute and appoint fitting Persons to inform and instruct them publickly in such Doctrines.

IX.All these Parts concentered.Now these several Parts of Government are naturally so connected, that to have a regular Form suitable to any civil Society, all these Parts thereof ought radically to center in One.40 For if any Part be wanting, the Government is defective, and uncapable of procuring its End. But if these several Parts be divided, so that some of them be radically here, and others there, hence of Necessity will follow an irregular and incoherent State of Things.

[38.]Here Tooke uses “Government” to translate Pufendorf’s phrase “sovereign power” (summum imperium), which Barbeyrac renders as Souveraineté. Given the centrality of the concept to Pufendorf’s construction of political authority, the fact that Tooke uses sovereignty (in its political sense) only twice in his entire translation is a good indication of the lexical and ideological changes made to Pufendorf’s absolutist vocabulary.

[*] That is to say, In such Matters as are neither commanded nor forbidden by any Divine Law, whether it be Natural or Revealed. See Law of Nature and Nations. Book VIII. Chap. I. §2, &c. [In this note (II.1, p. 284) Barbeyrac seeks to restrict the sovereign’s legislative power to matters left indifferent by divine law, natural and positive (adiaphora). Yet it is clear that Pufendorf intends that this power be broader, including in particular the right to determine which natural laws will be enacted as positive civil laws and which will be left as “imperfect” (moral) duties. It should also be noted that Pufendorf writes not of the sovereign’s right to determine the lawful in “any Public Society,” but only in the state (quid in civitate pro licito).]

[39.]I.e., on his behalf.

[*] Apolog. §6. Eris Scandica. P. 7, &c. See also the References at Lib. I. c. 4. §9.

[40.]Pufendorf’s doctrine of the regular state—in which all the rights and powers of sovereignty are held by a single authority—was directed against the conception of multiple authorities in the Aristotelian doctrine of the “mixed republic,” and against the reality of the German Empire, where lesser powers and estates claimed to exercise sovereignty rights on their own behalf. Pufendorf’s conception of the regular state was a blueprint for the sovereign territorial state.