Читать книгу Natural Rights on the Threshold of the Scottish Enlightenment - Gershom Carmichael - Страница 13

CHAPTER 1

On Moral Philosophy, or the Science of Natural Jurisprudence

Greetings to the generous reader ¹

No one with the least tincture of learning can be ignorant of the fact that philosophy has been brought to a much happier condition in our own lifetime and in that of our parents than it had previously enjoyed. This has happened in two ways: philosophy has been purged of the absurdities of previous ages, and it has been enriched by outstanding improvements. And it has occurred not only in natural philosophy, where it has not escaped the attention of the general public that advances have been made by distinguished scientists which have contributed also to the refinement of the arts, but the other parts of philosophy have been no less happily cultivated. And of these none owes more to the achievements of the hundred years just past than Moral Science.

This science had been most highly esteemed by the wisest of the ancients, who devoted themselves to its study with great care. It then lay buried under debris, together with almost all the other noble arts, until a little after the beginning of the last century, when it was restored to more than its pristine splendor (at least in that part of moral science which concerns the mutual duties of men and which is much the greater part because of the variety of cases that occur here) by the incomparable Hugo Grotius in his outstanding work The Rights of War and Peace.² And from that time the most erudite and celebrated scholars in Europe, as if aroused by the sound of a trumpet, have vied with one another in the study of this noblest and most useful branch of learning.

For more than fifty years, scholars more or less confined their studies within the limits set by Grotius; inasmuch as some reduced his work to epitomes, others illustrated it with notes and commentaries, and others made various criticisms of it. I do not include in this company those famous Englishmen, Selden and Hobbes, since the one restricted himself to the so-called books of Noah and the teaching of the Hebrew doctors built upon them,³ while the other set out, not to illustrate the study of the law of nature, but to corrupt it.⁴ But then that most-distinguished man, Samuel Pufendorf, decided that something more should be attempted. By arranging the material in the work of Grotius in a more convenient order and by adding what seemed to be missing from it to make the discipline of morals complete, he produced a more perfect system of morals in those books that bear the title Of the Law of Nature and Nations.⁵ Subsequently, he reduced this system to a compendium in this elegant treatise to which we have devoted some little care of our own.⁶

When this treatise was published, it began to be used for teaching purposes in the universities. And it was recognized by reasonable judges of these things that there is no other genuine philosophy of morals than the philosophy that elicits and demonstrates from evident principles founded in the nature of things those duties of men and citizens which are required in the individual circumstances of human life. And so the science of the law of nature, however different in appearance it might seem from the ethics which had long prevailed in the schools, was no different in aim and subject matter; it was the same subject, more correctly taught, and therefore better able to reach the goal which the other had sought with uncertain direction.

For all writers on ethics had always professed that it was the science which would direct human actions to goodness, that is, to conformity with the law of nature or, as they commonly say in the schools, with the right dictates of reason.⁷ But by what means can any science direct human actions to conform with the law of nature unless it is by showing what that law prescribes, what it forbids, and what sanctions it employs to enforce its precepts, that is, what good awaits those who observe its precepts and what evil will ensue for those who neglect them? Whatever distinctions one may make between scholastic ethics⁸ and natural jurisprudence, one must not attribute them to the nature of moral science itself but to the spurious or genuine manner of teaching it. The same observation is made by the distinguished Titius in the prolegomena, section 48, to his own Observations on this treatise of Pufendorf’s.⁹

Nor should it be objected that the subjects which form a great part of the scholastic ethics are not to be found in recent writings on the doctrine of natural law. For if one cuts out some of the things which appear too frequently in every part of scholastic philosophy, empty quibblings and arguments about words which ought to be excluded from the whole range of the sciences, if one also excises those things which can be defined only on the basis of supernatural revelation and must be left therefore to theology, if, finally, one sets aside those purely theoretical questions which are more appropriately treated today in pneumatology, what remains can easily find its place in the study of natural law, although it has been too much neglected until now by recent writers; and so it will be included in what follows.

No one who cares sincerely about duty, and recognizes that a common rule of duty is given to all men, can doubt that every individual is obliged to seek some knowledge of this rule, and a more accurate knowledge must be sought by some in proportion to the talents they have been given and have a duty to employ in this life. But if there are any who do not think that the discipline of philosophy is necessary for this pursuit, even though it offers more complete and more accurate knowledge of this kind drawn from nature itself, it is because some have persuaded themselves that moral theology, or as it is more popularly called, casuistry, can take the place of philosophy, others think this knowledge may be found in study of the civil law, while still others suppose that they can solve the moral problems considered here without any particular training or reflection, by the sole resource of common sense. Pufendorf himself found it necessary to confront these errors in his own preface,¹⁰ and anyone will be capable of defending himself against them after a little attention to this science, so that it will not be necessary to dwell unduly on them here.

But the need for a thorough grounding and training in moral science should be sufficiently evident when one considers the innumerable delusions which tend to creep into questions of this kind and divide men every day into parties, not without great disturbance of the public peace. Nay, one may affirm that the perverse and malignant spirit which inspires evil citizens among us to unsettle the public happiness enjoyed by these nations under the just and flourishing reign of our most Serene King, and agitates the same individuals to initiate endless rebellions in favor of the papal Pretender to the throne, has no other source (so far as this source can be imputed to opinions rather than to evil passions) than ignorance of the true principles of natural right.

The importance of keeping moral philosophy distinct from revealed theology is acknowledged by the most acute among the theologians themselves,¹¹ who do not claim that scripture fixes or removes the boundaries of civil rights as they call them: they assume that these rights are just the same as nature or the consent of men has made them. I would add that it is not a useless exercise to derive the more general moral precepts contained in the Holy Book from the nature of things, not only for the sake of those who do not know or do not acknowledge the Divine Word but also for our own sake who embrace it. For our human frailty needs all the assistance that God has given us to discover and adhere to the truth. And finally it is an important consideration in support of the divine origin and authority of the Sacred Books that they conform with the understanding of the nature of God and the duties of men which one may gather from the nature of things by the right use of reason. This conformity can never be appreciated by those who neglect the study of moral science or confuse it with revealed theology. For these reasons I have never been able to approve of the practice of those who have insisted that what they call Christian ethics, or morals deduced from the testimony of the holy scriptures, should be taught in the schools for the moral part of philosophy. An occasion for this delusion may have been afforded by the even more serious error of those for whom ethics was nothing more than a confused assortment of doctrines, pillaged from the bookshelves of pagan philosophers, on the assumption that one should determine what can or cannot be known by the light of nature from what was or was not known to the pagan philosophers, an assumption that has been the cause of many aberrations and which is worthy only of those strangers in their own home who have never known enough to consult nature herself concerning the demands of nature.

Nor can the place of moral philosophy be taken by the Roman or any other particular system of jurisprudence. For we are seeking a common norm for all men which will mediate the mutual duties of men who are not obliged to each other by their common subscription to any particular civil law. The same norm must also provide the source of those mutual obligations which exist between rulers and subjects in civil societies; it must supply the grounds for the obligation of the civil law and indicate how those laws are best interpreted; and it must direct us finally, to the most beautiful aspects of virtue which are not comprehended within codes of public law. From all of this it is clear that no merely human law can suffice. One does find in the books of Roman law innumerable declarations of the law of nature, in light of which Ulpian says that he and his friends aspire to true philosophy.¹² But we should not credit any man or any nation with authorship of the laws of nature; this belongs to nature alone. (Compare what is said by Titius, the distinguished scholar mentioned above, in the preface to his Observations on Lauterbach.)¹³ And just as the authority of the Roman government adds nothing to the sanctity of the laws of nature; so the mixture of natural laws with merely civil laws and things of that order prevents one from deducing the natural and genuine precepts contained in the books of Roman law from their own principles and from seeing that those precepts are connected with each other by the native genius of the Roman jurists. Those jurists, to say nothing of their interpreters, may have expounded philosophies which acquired the force of laws, but when they found some rule established by positive law or uniformly accepted customs, they did not normally trouble themselves to deduce that law from some higher source nor was it pertinent to their task to do so.

They are therefore merely dabblers in one or in both kinds of law who persuade themselves that an accurate knowledge of natural law can be derived from the study of Roman law or of any civil law whatsoever. This is not to denigrate the study of civil jurisprudence, however; for besides the value of studying the law that is used in the courts for the authority of such law in addition to its manifest equity, I also readily acknowledge that the civil law of the Romans often illustrates the natural law, reflecting the light which it receives from it. So just as it is reasonable to teach moral science to those students of the civil law who want it, a knowledge of civil law is virtually necessary in the present state of our moral studies. Indeed the need is so great that the science of natural law will never reach perfection or be cultivated with felicity, until the philosophers know more about the civil law and the jurists know more about philosophy; until, that is, the philosophers recover, or the jurists restore, the garments borrowed from philosophy which at one time added luster to the attire of Roman jurisprudence.

Some understanding of the nature and utility of the science expounded in this volume can be gained from the foregoing. It remains for us, Reader, to give you some account of the labors that have gone into the volume itself.

It has been for a long time a concern of the Scottish universities to allow their students to drink from the pure and abundant springs of every discipline, whatever may be said by some who pronounce on matters they have little investigated. I note¹⁴ in particular a most ingenious man, who has deserved excellently of his country on many accounts, Sir Richard Steele, who declares, in the Epistle Dedicatory to Pope Clement XI, prefaced to An Account of the State of the Roman Catholic Religion, edited by himself,¹⁵ that in the Scottish academies they scrupulously abstain from every attempt to investigate the truth deeply, or make further advances in the sciences. He relies on a single argument: that there are certain dogmas concerning the weightier articles of religion, to which assent is demanded of those who are admitted to the task of teaching in our churches or academies. But it is certain that we have not for this reason ever encountered any barrier to the progress of learning, nor will we ever suspect that there can be such a barrier until perhaps someone proves that what is most conducive to making successful advances in the knowledge of truth is that we have nothing ever certain, nothing undoubted, not even in matters of the greatest importance; that the truth of what we have understood most evidently from the sacred oracles or from the actual nature of things, we ourselves call into doubt; or that we should be afraid to enable our descendants to see the truth as little obscured by the clouds of error as it is within our power to permit. We are indeed able to make mistakes, and not infrequently we do: but we know also that there can be certain truth in a judgment, by which one gives assent to things evidently perceived, even though in making a judgment one is not exempt from all risk of error in other respects. Nor do we suspect that because things seen in dreams very occasionally deceive us, therefore what we see in front of us when we are awake and which we touch with our fingers should be considered dubious or fanciful; this is because of that quality of self-evidence which easily distinguishes things received by the external senses from the fantasies of dreamers. Those who contend that certain knowledge of truth and the law of acting in conformity with it, cannot be obtained without an infallible judge, let them see what cause they serve.¹⁶

So, in my endeavor to adorn the Sparta where I was born, so far as my feeble abilities permitted, I decided not to burden my students any longer with dictates of systems of philosophical science in the received manner. It seemed to me that nothing could be more suitable for prelections in moral philosophy than this treatise of the famous Pufendorf. But as I lectured, I came across many things which needed comment or supplementation. So I imparted to my students brief notes for them to write in the margins of their books beside certain passages. At the same time I included in these annotations passages from Grotius where the arguments were treated, along with references to my Ethical Theses which I had also circulated among them;¹⁷ although these were composed principally as material for public disputation, they still served the purpose of a supplement to those parts of moral science which are touched on lightly or not at all by Pufendorf. The university printer asked me to include my comments in a new edition of Pufendorf’s treatise which he was preparing. And as most of those parts of my Ethical Theses which differed from the teachings of Pufendorf had been included in the book, together with a good deal more, it gradually developed into that lengthy commentary which issued from our academic press a few years ago as supplements to Pufendorf’s work.¹⁸ These have been at length revised and here and there augmented. I am permitting them to be published once more with the same intention as before of promoting the moral studies of young people in our universities.

I have attempted to take particular care in this commentary to deduce the obligations of the law of nature and its fundamental precepts from the existence, perfection, and providence of the supreme being;¹⁹ so that the manifest connection between moral science and natural theology would be evident to the reader; for moral doctrine is in truth the practical part of natural theology. In this way I have sought to elevate moral science from the human forum to which it has been too much reduced by Pufendorf to the loftier forum of God. I have done this particularly in Supplement I²⁰ and in the first part of Supplement II.²¹ And by these means I hope that I have answered the particular or at least the juster part of the criticisms made of Pufendorf’s system by the celebrated Gottfried Wilhelm Leibniz in a letter that has been several times reprinted.

This letter appears among the appendices to an edition of this work [the De Officio of Pufendorf] by the distinguished Alexander Arnold Pagenstrecher, published in Groningen in 1712.²² The letter also appears in a French version, translated by the famous Barbeyrac, with his animadversions upon this letter, in an entirely new edition of his French translation of this text.²³ Whether I have contributed anything toward the formulation of that more perfect system of moral doctrine whose absence the same excellent philosopher lamented in his letter I do not know; the reader must form his own judgment on the basis of those principles I have laid down at the end of Supplement II and from the method I have sketched in the appendix.²⁴

I have tried not to overlook altogether the subjects which are normally taught in the usual course on ethics and which are lacking in the system of Pufendorf. And so I have included everything from them that seemed most useful and suitable for treatment here. I will not delay to speak now of what can be read in Supplements I²⁵ and III²⁶ of supreme beatitude, of the morality of human actions, and the moderation of appetite and all those feelings which the author has described in his larger work. As for the virtues and vices, Aristotle’s Ethics contains almost all that needs to be said on the subject and comprehends virtually everything of practical import in the moral doctrines of the scholastics, although it was transmitted by them in a confused and often feeble manner. We have confined our exposition on this subject to a very brief account of the ideas of virtue and vice in an observation at pp. 42–43, below, merely to dispel the inaccurate notions which are commonly bandied about on this subject and to indicate how one may recapture the basic distinctions. I thought it plainly superfluous to enter into a more particular discourse on them, as if the doctrine of virtue were entirely distinct from the doctrine of duties. For anyone who understands what he should do in life, and what he should not do, cannot be ignorant of what should be classified as virtue and vice. And if I had thought it relevant to expand upon the names of virtue and vice, I would not have devoted a separate discussion to the matter: I would have indicated instead the tendency of individual virtues and vices to obedience to or violation of the precepts.

I am not ignorant of the fact that several scholars before me have devoted their labors to illustrating and enriching this treatise of Pufendorf’s. But I had the opportunity to make use of very few of those writings in preparing this edition. I gladly acknowledge that these comments owe much to two distinguished men who preceded me in this undertaking, Titius and Barbeyrac. But I had already communicated to my pupils my opinions about the most important articles, most of it in writings much as I have presented them here,²⁷ before I saw the Observations of Titius (and, before they were seen by anyone in these regions, if I am not mistaken), if not before they were published, and before Barbeyrac’s Annotations on either of Pufendorf’s works were published.²⁸ When I subsequently consulted them, I was delighted that my thoughts on the legitimate reasons for requiring obedience, on the fundamental precepts of natural law, on obtaining compensation for damages, and on several other questions of importance were confirmed by the authority of such great men. I mention this here so that no one will be surprised that I do not refer to their writings when I amend Pufendorf’s text in almost the same manner as these distinguished men in works published before mine. The perceptive reader will quickly recognize that their observations have prompted not a few of mine when he remarks not only how much my work is indebted to them but how often I have defended Pufendorf’s system from their criticisms when these seemed to me to be unjustified.

Further, concerning the order of investigating the social duties, outlined in the appendix according to the various classifications of rights which belong to men in opposition to each other, I must advise you, Reader, that after I had time and again dictated my Ethical Theses in almost the same order as here and presented them for consideration by public disputation, I discovered not without particular pleasure, obvious traces of the same method in the work of the famous Ulrich Huber, in his noble treatise On the Rights of Civil Society, book II, sections IV and VI (a work I had had no opportunity to see before).²⁹ There is this difference in our approaches, however: that erudite scholar refers all the rights which he discusses to civil society and so he does not consider rights in the full scope in which they may be seen in the more comprehensive view of moral science presented here.

[The preface concludes with three short paragraphs which pertain exclusively to technical points in the original edition: whether or not to include material from other works of Pufendorf, on the numbering of the paragraphs, on the preparation of the index, etc. These paragraphs have no relevance for the present edition and for this reason they are not included here.

The preface is subscribed. …]

From my house in the college of Glasgow, December 27, 1723.