Burlamaqui and Natural Law
Source: Introduction to Burlamaqui's The Principles of Natural and Politic Law, trans. Thomas Nugent, ed. and with an Introduction by Peter Korkman (Indianpolis: Liberty Fund, 2006).
Jean-Jacques Burlamaqui (1694–1748) was a natural law professor at the Academy of Geneva. He was brought up in a family with long traditions both of wealth and of political influence. Not only was Jean-Jacques’s father a member of the ruling Genevan small council ( petit conseil), but his grandfather had held a position in the council of two hundred (grand conseil) and his forefathers had been prominent in the politics of Lucca in Italy, the area from which his family originally came. In 1709 Jean-Jacques began studying philosophy and law at the Academy of Geneva, where he acquainted himself with Pufendorf ’s newly translated natural law treatises. ( Jean Barbeyrac’s famous French translations of Pufendorf ’s two main natural law treatises were published in 1706 and 1707.) In 1716 Burlamaqui became a lawyer, but instead of working as such he started giving private lectures on natural law and in 1720 applied to the small council for the title of honorary professor. In 1720 and 1721 Burlamaqui traveled in Europe, visiting London, Oxford, Amsterdam, and Groningen, where he met Barbeyrac. Burlamaqui was made a member of the council of two hundred while away, and he remained active in Genevan politics for the rest of his life.
In Burlamaqui’s time, Geneva was ruled mainly by the twenty-five members of the small council, though important decisions were also taken by the council of two hundred. The so-called general council (conseil général), comprehending all citizens (in itself a rather restricted category), had lost much of its influence. The Burlamaquis were a well-represented family in the two select councils. When Burlamaqui married the daughter of Jacob de Chapeaurouge, one of Geneva’s most influential men, in 1717, he became even better connected. When the small council created two professorships in jurisprudence, Burlamaqui complained that the planned posts involved more teaching duties than he could manage, given his ill health and popular private lessons. The small council, convoked without the Burlamaquis and Chapeaurouges, concluded that they’d have to leave one post unfilled for the time being. In this situation, the Burlamaquis and the Chapeaurouges took action: after a few maneuvers, the Burlamaquis and the Chapeaurouges succeeded in securing one of the posts for Jean-Jacques with only half the teaching originally planned for the post.
Ill health, which Burlamaqui had already complained of in 1720, and his numerous private lessons made Burlamaqui desire a redefinition of his tasks, and in 1740 he was relieved of his teaching duties altogether. Failing health, including impaired eyesight, may also have influenced his published work, which he composed from lecture notes between 1740 and his death in 1748. By that time he had become a much respected and influential member of Geneva’s de facto aristocracy, a member of the small council (in 1742), and a defender of its authority against the demands of the bourgeoisie that power should be wielded by the general council. Respected as a teacher and a friend of the arts, Burlamaqui was involved in the public library and in the creation of a drawing school in Geneva.
Burlamaqui’s lectures drew foreign students to Geneva, and his natural law treatise was translated into English, Latin, Dutch, Danish, Italian, and Spanish and republished in more than sixty different editions. The English translation became a standard textbook both at Cambridge and at the foremost American colleges. The first scholarly work on Burlamaqui was written by an American, Ray Forrest Harvey, who argued that the Genevan was well known by the Founding Fathers and that his writings exerted considerable influence on the American constitutional system.1 Furthermore, Burlamaqui’s work was important to philosophes such as Jean-Jacques Rousseau and Denis Diderot. However, whether the ideas thus disseminated were Burlamaqui’s own has been a debated issue. It can be shown that Burlamaqui’s published work borrows extensively from Jean Barbeyrac’s French translations of the main natural law treatises of his time, especially Pufendorf ’s Les devoirs de l’homme et du citoyen (DHC) and Le droit de la nature et des gens (DNG) and from Grotius’s Le droit de la guerre et de la paix (DGP).2 Often Burlamaqui omits mention of his sources, as most of his commentators have noted. The typical reaction has been to declare Burlamaqui an unoriginal plagiarist.3
The heavy reliance of the Principles of Natural and Politic Law, especially its second part, on Barbeyrac’s editions requires an explanation. Burlamaqui published only one book in his lifetime, Principes du droit naturel (Geneva, 1747). Burlamaqui himself thought of the book as an introduction to a complete system of the law of nature and nations for students and beginners. He never published the whole system himself, but he laid out the main lines of one in lectures, which were preserved in students’ notes. These lecture notes had already attracted attention before Burlamaqui’s death, and his main reason for publishing the work was, as he states in his introduction, that he “began to apprehend, lest this work should be published against my will, in a very imperfect and mangled condition.”
After Burlamaqui died in 1748, many felt that more of the master’s system should be published. Theology professor Jacob Vernet, who had been present at Burlamaqui’s death “as a friend and vicar,” wrote in a letter on the day of the interment that the notes on civil government were among Burlamaqui’s most original. Burlamaqui, Vernet wrote, had been editing his notes on “droit politique” but had not finished, so Vernet, possibly with other friends and colleagues, took the task upon himself. The result of these endeavors, Principes du droit politique (Geneva, 1751), remained unfinished in some central respects. It contained a great number of unidentified quotations and extracts, especially from the natural law treatises translated by Barbeyrac, and large portions of the book added little to Grotius, Pufendorf, and Barbeyrac. In the Principes du droit naturel, which Burlamaqui had reworked for publication, unidentified quotations are less common, and Burlamaqui’s own position is more fully worked out.
It is not difficult to imagine how lecture notes might differ from a finalized publication. Burlamaqui’s systematic lectures drew on and provided a summary of the most up-to-date political science available in his day. Apparently Burlamaqui felt that his students did not need to know which claims were directly from Grotius, Pufendorf, or Barbeyrac and which claims were his own. In a published book, by contrast, the reader would have expected the sources to be indicated.4 However, as Bernard Gagnebin notes in what is thus far the best monograph on Burlamaqui, “the editors of the Principes du droit politique published all these quotations, without indicating the sources.”5
Burlamaqui had entrusted the manuscript containing his reworked chapters on civil government to his sister and daughter, expressly demanding that it not be published. When the Principes du droit politique was announced, Burlamaqui’s sister and daughter protested. They pointed out that the original manuscript with Burlamaqui’s emendations had never left their hands, and they refused to recognize the publication as being by their father and brother. After an official investigation, it was decided that the Principes du droit politique could not be sold with a title indicating that it was written by Burlamaqui. Officially, then, only half of the present work is by Burlamaqui. Few contemporaries outside Geneva would have realized this, however. The publishers complied with the demands and published the Principes du droit politique anonymously. This simply made the book look all the more like a second volume of the large natural law treatise that Burlamaqui had been planning. There is little doubt that it was the unpolished Principes du droit politique that earned Burlamaqui the reputation of being unoriginal. Large portions provide pedagogical summaries of contemporary political science (natural law) without either references or the kind of independent reflection one would expect in a published work. Burlamaqui’s efforts to hinder his work from being published “in a very imperfect and mangled condition” had failed.
At the time of Burlamaqui’s death, the first reviews of the Principes du droit naturel had just been published. Rumors that there would be an English translation had also reached Geneva. That translation, by Thomas Nugent, was published in London in 1748. Nugent’s fame was to be based on travel books, such as The Grand Tour; or, A Journey through the Netherlands, Germany, Italy, and France (1749), and on translations of thinkers better remembered than he, such as Montesquieu, Rousseau, and Condillac. He also translated the Principes du droit politique as Principles of Politic Law, adding “being a sequel to the Principles of natural law.” This was published in 1752, one year after the original French text was published in Geneva. The same London publisher, J. Nourse, also produced the first combined two-volume Principles of Natural and Politic Law in 1763; a comparable French edition appeared in 1764. The English 1763 edition was essentially nothing more than the Principles of Natural Law and the Principles of Politic Law sold with one title. Some minor changes were introduced at the beginning of the second volume (the Principles of Politic Law), apparently with a view to merging the two books into a seamless whole. Nugent, who died in 1772, was probably involved in making those changes; they are noted in the present edition.
The Burlamaqui that reached British and American universities and was read for generations was Principles of Natural and Politic Law. Much of Burlamaqui’s audience took the latter half of this work to be just as much his as the former, reading his painstaking extracts from Pufendorf, Grotius, and Barbeyrac as the original insights of the Genevan natural law professor. Others who had read their Pufendorf with care may have recognized many borrowed passages but would have had a hard time identifying exactly the places where Burlamaqui parts company from his predecessors. The present edition helps the reader by identifying the sources from which Burlamaqui borrowed his observations. This is, however, a complicated task, and no doubt there remain paragraphs built on passages in the above works or elsewhere that have not been identified.
Even after the publication of the Principes du droit politique, many of Burlamaqui’s lecture notes remained in circulation. Some were published in 1766–68 by Fortuné-Barthélemy de Félice, an Italian professor of philosophy and mathematics who moved to Yverdon, converted to Protestantism, and became director of a printing press. Having secured a set of Burlamaqui’s own lecture notes, de Félice reworked the material, adding new chapters to the published books, fusing some chapters, deleting passages and inserting new ones as he saw fit, and adding a commentary of his own. Finally, in 1775, Burlamaqui’s lecture notes were published in Lausanne by the publisher Grasset as Éléments du droit naturel. These editions provide information on themes that Burlamaqui discussed in his lectures but that fall outside the scope of the present book. De Félice’s edition contains eight volumes: the first two constitute the Principes du droit naturel, the last three the Principes du droit politique. Between these de Félice inserted three volumes of material from Burlamaqui’s lecture notes on man’s primitive state, on his duties to God and to himself, and on the main laws of sociability. Under duties to God, Burlamaqui discusses natural religion in more detail and makes more use of Barbeyrac’s defense of religious toleration and freedom of conscience than he does in the present work.
Burlamaqui’s lectures took the usual form of a commentary on Pufendorf ’s DHC, interspersed with more elaborate discussions from DNG and Grotius’s DGP, all in Barbeyrac’s French translations.6 The first half of the present work often presents Burlamaqui’s understanding of Pufendorf, Grotius, and Barbeyrac, usually with some indication of his sources, followed by Burlamaqui taking sides on controversial points or arguing that all three are in need of rectification. Despite the standard view of Burlamaqui, his standpoints are not unoriginal. On controversial issues he is often far from the standard positions; I discuss a few cases below. The second half of the present work is less original since, as explained, it was not prepared for publication by Burlamaqui, excepting a few long chapters. It clearly and systematically presents the main issues of contemporary natural law theory, but it was not common practice for a lecturer in all cases to point out his modern sources.
Yet even in the latter half of the work, Burlamaqui is often at variance with his predecessors. One clue for understanding these differences is Burlamaqui’s status as a member of the upper strata of the Genevan aristocracy. His long discussion of the best form of government—one of the few chapters that had clearly been prepared for publication—engages in Genevan politics. As a council member and as an expert on natural law, Burlamaqui participated in formulating the ruling elite’s intellectual response to the bourgeoisie’s claim that the small council was usurping power that constitutionally and traditionally belonged to the general council.7 Burlamaqui’s chapter on forms of government is very critical of democratic regimes and argues (against Pufendorf ) for the advantages of a “mixed” government like the Genevan “aristo-democracy,” to use an expression from the Genevan elite’s reply to the bourgeoisie’s demands.8 The best political regime, Burlamaqui argues, is the one that most safely helps men achieve the happiness they naturally aspire to, and such a regime is government by the ablest, the elite. Burlamaqui’s defense of aristo-democracy supports the authority of Geneva’s small council, which explains why Rousseau, who defended the rights of the general council and upheld the political rights of the bourgeoisie, adopted such a hostile attitude to Burlamaqui’s writings and even to natural law theory in general.9
Burlamaqui’s natural law theory also differs from Pufendorf ’s in its foundational principles. The context was the more optimistic trends in Genevan Calvinism at this time. For Burlamaqui, man is first and foremost a being that strives for happiness or felicity; this is the primum mobile behind all human action. When Burlamaqui insists that self-love is not “the fruit of human depravation” (I.1.5 §7), he is quite in line with the happy egoism of many theologians of his day.10 His views are very different from those defended by Pufendorf, who stressed men’s inclinations to evil and who saw natural laws not as rules to make men happy but as rules needed for them to survive each other’s company. Burlamaqui by contrast claims that the natural laws do not exist merely to hinder men from harming each other but to guide their natural striving for happiness, a concept that Burlamaqui offers in the first paragraph of his book. The same approach is applied by Burlamaqui to civil laws. The most central task of the civil state is to help men become happier than they could on their own. Civil laws can thus be used to force men to become happy. This also implies that persons involved in legislation should have a more solid understanding of what makes the subjects virtuous and happy than the uneducated citizens generally have themselves. For Burlamaqui, the science of natural law is in effect a science of happiness. In all of these views, Burlamaqui defends a different understanding of politics and law than most Pufendorfians.11
Burlamaqui’s distinct approach to natural law is also obvious in his opposition to Pufendorf ’s and Hobbes’s claim that all obligation derives from the commands of a superior.12 Burlamaqui argues that reason provides a simple rule for man by pointing out to him the shortest route to his happiness. This rule brings with it what Burlamaqui sometimes terms “primitive obligation” (I.i.5 §9). As the term indicates, all other sorts of obligation are ultimately derived from the primitive rule. The reason why men ought to obey the natural laws, then, is not that God has commanded such obedience. It is rather that God is more competent at providing a legislation conducive to human happiness than we are ourselves. This makes reason as the judge of the means to happiness the real source of obligation, not (divine) will. Although the commands of a legitimate superior add an external component to obligation, they do so only by adding stronger motives for obeying, that is, by providing sanctions for the laws (I.ii.7 §13).
Burlamaqui’s approach to obligation, which he articulates, for example, in his chapter “Of the Foundation of Sovereignty, or the Right of Commanding” (I.i.9), implies that the obligation to obey a law or a sovereign must be explained in terms of the motives that make a person desire to obey. Pufendorf by contrast drew a sharp distinction between the motives working on the human will on the one hand and moral obligation or duty on the other. This distinction was further emphasized by Barbeyrac in his replies to Leibniz’s famous critique of Pufendorf ’s principles: the natural laws impose absolute duties, telling us what we must do, not what we desire to do.13 Burlamaqui rejects Pufendorf ’s and Barbeyrac’s approach to moral obligation. Rather than restraints by a superior, the laws of nature are the rational egoist’s principles for finding the shortest road to felicity. In many respects, Burlamaqui’s understanding of the natural laws is closer to Leibniz, or to medieval natural law theory, than it is to the Pufendorfian tradition.
In his political theory Burlamaqui stands out, together with Barbeyrac, as one of the early modern natural law theorists with something resembling a theory of human rights. According to Harvey, “Burlamaqui was the first modern philosopher to enumerate happiness as a natural right—a right which forms the basis of the state.”14 Burlamaqui in fact holds that all men have a “right of endeavoring to provide for their safety and happiness, and of employing force and arms against those who declare themselves their enemies” (II.iv.1 §5). Yet, as we have seen, the obvious way to pursue happiness is to submit to the rule of the ablest. The Genevan citizen has an inalienable right to pursue his own felicity by submitting to the small council’s expert decisions.15 The sovereign, conversely, not only has a duty to hinder men from harming each other but must through legislation and education also ensure that the citizens become happy and virtuous.16 This gives the state a role as moral tutor of the individual that Pufendorf had consistently denied it.17 In spite of his copious use of Pufendorf ’s and Barbeyrac’s words, Burlamaqui in fact rejects or alters the legacy of his predecessors in fundamental respects.
[1. ]Ray Forrest Harvey, Jean-Jacques Burlamaqui: A Liberal Tradition in American Constitutionalism (Chapel Hill: University of North Carolina Press, 1937). See also Morton White, The Philosophy of the American Revolution (Oxford: Oxford University Press, 1978).
[2. ]References to DHC and DGP are to the facsimile editions published by Centre de Philosophie Politique et Juridique in Caen, which are also available as download-able files from the Internet server of the Bibliothèque Nationale de France, www.bnf.fr. For references to DNG, I have used the 1740 London edition. In a few cases I have referred to the earlier edition published in the above-mentioned Centre series. This edition I refer to as DNG 1732. The abbreviations indicated in the text will be used throughout.
[3. ]See Robert Derathé, Jean-Jacques Rousseau et la science politique de son temps (Paris: Presses Universitaires de France, 1950), p. 86, and Giorgio del Vecchio, “Burlamaqui and Rousseau,” Journal of the History of Ideas (vol. 3, no. 3, 1962): 420–23.
[4. ]The Danish natural law theorist Martin Hübner commented on the prevalence of unidentified quotations from Barbeyrac (Essai sur l’histoire du droit naturel, 2 vols., London, 1757–58, vol. 2, p. 381), although not with the vehemence that Giorgio del Vecchio ascribes to him; see del Vecchio, “Burlamaqui and Rousseau,” p. 421.
[5. ]Bernard Gagnebin, Burlamaqui et le droit naturel (Geneva: La Frégate, 1944), p. 86; see also pp. 81, 85.
[6. ]See note 2 above.
[7. ]For a fuller treatment of the role of natural law and of Burlamaqui as an individual in Genevan politics, see Helena Rosenblatt, Rousseau and Geneva: From the First Discourse to the Social Contract, 1749–1762 (Cambridge: Cambridge University Press, 1997), especially pp. 101–2, 128–29, 133–35, and 154–55. See also Gagnebin, Burlamaqui et le droit naturel, especially pp. 51–61.
[8. ]See Gagnebin, Burlamaqui et le droit naturel, p. 56.
[9. ]This argument is one of the building blocks of Rosenblatt’s analysis of Rousseau’s main political writings in Rosenblatt, Rousseau and Geneva.
[10. ]See Rosenblatt, Rousseau and Geneva, pp. 12ff.
[11. ]For indications of how Burlamaqui’s approach to the tasks of the state differs from Barbeyrac’s, see my “Civil Sovereigns and the King of Kings: Barbeyrac and the Creator’s Right to Rule,” in Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought, ed. Ian Hunter and David Saunders (New York: Palgrave, 2002), pp. 109–22.
[12. ]For a careful discussion of Pufendorf ’s account of the foundations of sovereignty, see Kari Saastamoinen, The Morality of the Fallen Man: Samuel Pufendorf on Natural Law (Helsinki: Societas Historica Finlandiae, 1995), pp. 95ff.
[13. ]Barbeyrac’s replies are in his translation of Leibniz’s critique; see “The Judgment of an Anonymous Writer,” in Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature, ed. Ian Hunter and David Saunders (Indianapolis: Liberty Fund, 2003), pp. 267–305. For the different ways in which Pufendorf ’s theory of obligation was interpreted by Barbeyrac and Burlamaqui, see my article “Voluntarism and Moral Obligation: Barbeyrac’s Defence of Pufendorf Revisited,” in Early Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment, ed. T. J. Hochstrasser and Peter Schröder (International Archives of the History of Ideas 186; Dordrecht: Kluwer Academic Publishers, 2003), pp. 195–226, especially pp. 209–10.
[14. ]Harvey also argues that it is Burlamaqui rather than James Wilson or Lord Kames that was Jefferson’s central source in his declaration of inalienable human rights; see Harvey, Jean-Jacques Burlamaqui: A Liberal Tradition in American Constitutionalism, pp. 119–24.
[15. ]Knud Haakonssen is thus right to emphasize how rights theories in the early modern natural law tradition generally, and Burlamaqui’s in particular, often have had considerably more muted consequences than scholars would sometimes attribute to them; see Haakonssen, “The Moral Conservatism of Natural Rights,” in Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought, ed. Ian Hunter and David Saunders (New York: Palgrave, 2002), pp. 27–42, at pp. 27–28 and 38–39.
[16. ]Barbeyrac, “Discourse on What Is Permitted by the Laws,” in Samuel Pufendorf, The Whole Duty of Man, According to the Law of Nature, ed. Ian Hunter and David Saunders (Indianapolis: Liberty Fund, 2003), pp. 316–20.
[17. ]An important analysis of how Pufendorf “desacralized” natural law theory into a theory of the conditions of worldly peace alone is Ian Hunter’s Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001).
- A Legal Glossary by Roscoe Pound
- Bastiat, The Law (revised LF edition)
- Bentham on the Principles of Morals & Legislation
- Blackstone on Property (1753)
- Blackstone on the Absolute Rights of Individuals (1753)
- Blackstone: Analysis and Contents of Vol. 1 of Commentaries on the Law of England
- Blackstone: Analysis and Contents of Vol. 2 of Commentaries on the Law of England
- Blackstone: Introduction to the Laws of England
- Bryce on the Legal History of Rome and England
- Burlamaqui and Natural Law
- Carmichael & Natural Rights
- Cicero’s Treatise on the Laws
- Dicey on Law and Public Opinion in the 19th Century
- Dicey on the Rise of Legal Collectivism in the 20thC
- Doctrine of the Separation of Powers
- Fuller and the Law
- Gaius' Institutes of Roman Law: An Historical Introduction
- Gardiner on the Constitional Issues of the English Revolution
- Gardiner on the English Revolution
- Grotius & the Freedom of the Seas
- Grotius and the Natural Law Tradition
- Grotius on Prize and Booty
- Heineccius and Turnbull on Natural Law
- History of English Law
- Holdsworth on the Law Merchant
- Kant’s Philosophy of Law
- Law and Liberty by Roscoe Pound
- Lenks on the history of Habeus Corpus
- Leoni on the Rule of Law
- Magna Carta 700th Anniversary
- Magna Carta and the Common Law
- Magna Carta and the US Constitution
- Magna Carta in 16th Century English Legal Thought
- Magna Carta: An Historical Introduction
- Maitland on English Law before the Norman Conquest
- Maitland’s Outlines of English Legal History
- McIlwain on Ancient Constitutionalism
- Natural Law and Liberalism
- Pollock on the King’s Peace in the Middle Ages
- Pollock on the Law of Torts
- Pollock on the Oath of Allegiance in English History
- Pollock’s Model Version of Tort Law
- Pound and the Law
- Pound on the Ideal Element of Law
- Pound on the Philosophy of Law (Property)
- Pufendorf and Universal Jurisprudence
- Richard Cumberland and Natural Law
- Rommen & the Study of Natural Law in the 20thC
- Rommen and Natural Law
- Rommen on Natural Law in the Age of Individualism
- Roots of Liberty: Magna Carta (2008)
- Spooner on Natural Law (1882)
- Spooner, Taxation and the Common Law (1852)
- The History of James Wilson’s Law Lectures