The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• The Whole Duty of Man
• The Author’s Preface
• Book I
• Chapter I: Of Human Actions In General, the Principles Of  ’em, and How to Be Accounted For, Or Imputed
• Chapter II: Of the Rule of Human Actions, Or of Laws In General; and the Different Qualifications of Those Actions
• Chapter III: Of the Law of Nature In General
• Chapter IV: Of the Duty of Man Towards God, Or, Concerning Natural Religion
• Chapter V: Of the Duty of a Man Towards Himself  19
• Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury to Any Man
• Chapter VII: The Natural Equality of Men to Be Acknowledged
• Chapter VIII: Of the Mutual Duties of Humanity
• Chapter IX: The Duty of Men In Making Contracts
• Chapter X: The Duty of Men In Discourse
• Chapter XI: The Duty of Those Which Take an Oath
• Chapter XII: Duties to Be Observ’d In Acquiring Possession of Things
• Chapter XIII: The Duties Which Naturally Result From Man’s Property In Things
• Chapter XIV: Of the Price and Value of Things
• Chapter XV: Of Those Contracts In Which the Value of Things Is Pre-supposed; and of the Duties Thence Arising
• Chapter XVI: The Several Methods By Which the Obligations Arising From Contracts Are Dissolved
• Chapter XVII: Of Meaning, Or Interpretation
• Book Ii
• Chapter I: Of the Natural State of Men
• Chapter II: Of the Duties of the Married State
• Chapter III: Duty of Parents and Children
• Chapter IV: The Duties of Masters and Servants
• Chapter V: The Impulsive Cause of Constituting Communities 18
• Chapter VI: Of the Internal Frame and Constitution of Any State Or Government
• Chapter VII: Of the Several Parts of Government 38
• Chapter VIII: Of the Several Forms of Government 41
• Chapter IX: The Qualifications of Civil Government 47
• Chapter X: How Government, Especially Monarchical, Is Acquired
• Chapter XI: The Duty of Supreme Governours
• Chapter XII: Of the Special Laws of a Community, Relating to the Civil Government 59
• Chapter XIII: Of the Power of Life and Death
• Chapter XIV: Of Reputation
• Chapter XV: Of the Power of Governours Over the Goods of Their Subjects
• Chapter XVI: Of War and Peace
• Chapter XVII: Of Alliances
• Chapter XVIII: The Duty of Subjects
• Two Discourses and a Commentary By Jean Barbeyrac
• Note On the Translation
• The Judgment of an Anonymous Writer On the Original of This Abridgment With Reflections of the Translator, Intended to Clarify Certain of the Author’s Principles
• Discourse On What Is Permitted By the Laws In Which It Is Shown That What Is Permitted By the Laws Is Not Always Just and Moral
• Discourse On the Benefits Conferred By the Laws In Which It Is Shown That a Good Man Should Not Always Take Advantage of the Benefits Conferred On Him By the Laws

chapter xii

Of the Special Laws of a Community, relating to the Civil Government59

I.What they are. L. N. N. l. 8. c. 1. §1.IT Now remains, That we take a view of the respective Parts of Supreme Government, together with such Circumstances thereunto belonging, as we find are worthy to be observ’d. In the first Place, there are the Civil Laws, meaning the Acts and Constitutions of the highest Civil Authority for the Time being, ordained to direct the Subject in the Course of his Life, as to what Things he ought to do, and what to omit.

II.Why so called.These are called Civil, upon two Accounts especially: That is, Either in Regard to their Authority, or their Original.60 In the first Sense, all manner of Laws whatsoever, by the Force whereof Causes may be tried and decided in a Court of Civil Judicature, let their Original be what it will, may pass under that Denomination. In the other, we call only those Laws Civil, which derive their Original from the Will of the Supreme Civil Government, the Subjects whereof are all such Matters, concerning which neither the Laws of God or Nature have determined; yet a due Regulation and Settlement of them is found to be very conducive and advantagious to particular Commonwealths.

III.The Law of Nature to be reinforced by them. L. N. N. l. 8. c. 1. §2.As nothing therefore ought to be made the Subject of a Civil Law, but what relates to the Good of the Commonwealth that does ordain it; so it seeming in the highest Degree expedient towards the Regularity and Ease of living in a Community, That in particular the Law of Nature should be diligently observed by all People; it lies upon Supreme Governours to authenticate the said Law with the Force and Efficacy of a Civil Law.61 For since indeed the Wickedness of a great Part of Mankind is arrived to a Degree, which neither the apparent Excellency of the Law of Nature, nor the Fear of God Himself, is sufficient to restrain; the most effectual Method remaining, to preserve the Happiness of living in a Community, is, by the Authority of the Government to inforce the Natural by the Civil Laws, and supply the Disability of the one with the Power of the other.

IV.The Penal Sanction.Now the Force and Power, which is in Civil Laws, consists in this, That to the Mandatory Part of the Statute, concerning Things to be done or omitted, there is annexed a Penal Sanction, assigning the Punishment that is to be inflicted upon a Man by a Court of Justice for omitting what he ought to do, or doing what he ought to omit. Of which Kind of Sanctions, the Laws of Nature being of themselves destitute, the breaking of them does not fall under the Punishment of any Court in this World; but yet it is reserved for the Judgment of the Tribunal of GOD.

V.Of ActionsMore particularly, it is inconsistent with the Nature of living in a Community, for any one by his own Force to exact and extort what himself accounts to be his Due. So that here the Civil Laws come in, to the Assistance of the Natural. For they allow the Creditor the Benefit of an Action, whereby the Debt that is owing to him by Virtue of a Law of Nature, with the Help of the Magistrate, may be demanded and recover’d in a Court of Justice, according to the Course of the Laws of the Nation: Whereas without such Inforcement of the said Laws, you can force nothing from a Debtor against his Will; but must intirely depend upon his Conscience and Honour. The Civil Laws admit of Actions chiefly in the Case of those Obligations that are contracted betwixt Parties by an express Bond or Covenant. For as to other Affairs, where the Obligation arises from some indefinite Duty of the Law of Nature, the Civil Laws make them not subject to an Action at all; on purpose to give occasion to good Men to exercise their Virtue, to their more extraordinary Praise, when it is evident, they do that which is just and honest without Compulsion. Beside that, frequently, the Point in Question may not be of Consequence enough to trouble a Court about it.

VI.The Prosecution of them.And whereas the Law of Nature commands many Things at large, in an indefinite Manner, and leaves the Application of them to every one in his own Breast; the Civil Laws being careful of the Honour and Tranquillity of the Community, prescribe a certain Time, Manner, Place, Persons, and other Circumstances, for the due Prosecution of those Actions, with the Proposal of a Reward upon Occasion, to incourage People to enter upon them. And when any Thing is obscure in the Law of Nature, the Civil Laws explain it. Which Explication the Subjects are obliged to receive, and follow, although their own private Opinions do otherwise lead them to a contrary Sense.62

VII.Form.So that there being thus a Number of Actions, left by the Law of Nature to be consider’d according to the Will and Judgment of each Person, which nevertheless in a Common-wealth ought to be regularly stated for the greater Decency and Quiet of the same; it uses to be the Care of the Civil Laws to reduce all those Actions, with their respective Concerns, to a proper Form; as we see it is in Wills, Contracts, and divers other Cases: from whence it comes, that they limit us (as they do) in the Exercise of several Rights, to the Use whereof the Law of Nature left us much at Liberty.

VIII.The Obedience due to the Civil Laws.For so far as the Civil Laws do not openly contradict the Law of GOD, the Subjects stand obliged to obey them, not merely out of Fear of Punishment, but by an internal Obligation confirm’d by the Precepts of the Law of Nature it self. This being one of them, amongst others, That Subjects ought to obey their lawful Sovereigns.

IX.And to the particular Commands of the Sovereign, L. N. N. l. 8. c. 1. §6.Nay, it is their Duty to obey even the Personal Commands of their Sovereigns, no less than they do the Common Laws of the Kingdom. Only here they must observe, whether the Thing commanded is to be done by them as in their own Names, in the Quality of an Action belonging properly to Subjects to do; or whether it be barely to undertake the Execution of an Affair for the Sovereign, in Consequence of that Authority which he has to command it. * In the latter Case, the Necessity that is imposed upon the Subject excuses him from Sin, tho’ to command the Fact it self is a Sin in the Sovereign. But in the Other, for a Subject, as in his own Name, to do a Thing which is repugnant to the Laws of God and Nature, can never be Lawful. And this is the Reason, why, if a Subject takes up Arms in an unjust War, at the Command of his Sovereign, he sins not: Yet if he condemns the Innocent, or accuses and witnesses against them falsely upon the like Command, he sins. For as he serves in War, he serves in the Name of the Publick; but acting as a Judge, Witness, or Accuser, he does it in his Own.

[59.]Tooke’s chapter heading is a circumlocution for Pufendorf’s “On the civil laws in particular” (De legibus civilibus in specie). Tooke has difficulty in rendering Pufendorf’s “civil law” in part because of the English identification of this with (continental) juscivile, and in part because the notion of laws deriving from the civil sovereign is foreign to the English tradition of “judge-made” common law.

[60.]Their origin.

[61.]For Pufendorf, the civil law thus agrees with the natural law in two distinct but related ways. First, there is a broad agreement between the two because the end of the natural law, sociable existence, is achieved most fully in the state governed by the laws of a civil sovereign. Second, there is the agreement arising from the fact that the stability and tranquillity of the state are enhanced if its citizens act in accordance with the natural law (of sociability). This means that natural laws pertaining to social peace can be enacted and enforced as civil law, thereby, in effect, closing the gap between natural and positive law. Pufendorf thus neutralizes the scholastic and religious uses of natural law as a moral weapon against the civil state: first, by identifying the end of natural law with the end of the civil state (security), and, second, by subordinating natural law to positive civil law. For Barbeyrac’s different view, see his two discourses in the appendix.

[62.]This restriction of political dissent to the domain of private opinion results from two central Pufendorfian doctrines: first, from the fact that, in order to achieve unity of political will, individuals have agreed that the government’s decisions will be deemed to be those of all, even if they are not; second, because only the civil sovereign (the government) has the right to translate the natural law into civil laws.

[*] This Distinction will by no means hold good; for if the Thing commanded by the Sovereign, be manifestly Criminal, Unjust, and Unrighteous, let it be commanded in what Way and Method it will, and inforced with the greatest Threats possible, it ought not to be comply’d with. See L. N. N. Lib. 1. Cap. 1. §24. [This shows the degree to which Pufendorf’s construction of the citizen’s civil duties separates these from the moral duties of the man and the Christian. Only the sovereign may determine whether his commands are in accord with the natural law, hence only the sovereign is responsible if they are not. Barbeyrac’s footnote IX.1, p. 322, presumes to the contrary that ultimate responsibility rests in the conscience of each individual.]