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CHAPTER 8

On Duty to Others, or Sociability ¹

On not harming others

[In expounding our duty not to harm others, Pufendorf raised the question of exercising due care and diligence in our activities, the obligation to make restitution, and the exemption from the duty not to harm others in various particular activities such as fighting. Carmichael briefly summarizes and comments on these points.]

We are always bound to employ the most scrupulous diligence that the nature of the business admits, to avoid causing harm or loss to others. The different degrees of diligence which are required in different contracts concern the custody or care due to someone else’s property by virtue of these contracts. Their effect is not only that the object not be harmed by us, but that it not be harmed in any way so far as we can prevent it by use of the requisite diligence. Moreover, using the most scrupulous diligence that the nature of the business allows in order not to do harm to another does not always exempt us from the obligation of making good his loss. For sociability forbids us ever to undertake any business which threatens loss to another, unless we are prompted by a serious necessity, and even then we are obligated to compensate for the loss which may occur by that means, unless the necessity is communal, as may easily be understood from what the author himself has taught at the end of the previous paragraph. The reason therefore why a soldier is not liable, when brandishing his weapons in the heat of battle, for the harm which he does to the person who happens to be standing next to him, is not only that the nature of the business does not allow him to be more careful, but that both common and individual necessity require that it be done. We allow that the obligation for making good a loss inflicted by necessity does not arise from delict, which is assumed not to be present, but from quasi contract; or if not from quasi contract, as is sometimes the case, then from a true contract, for example by the inclusion of an express provision on the subject. [I.6.9.i]

Natural equality

The natural equality of men includes: (1) that each man is equally a man, and consequently is subject to a moral obligation from which no human being can exempt him; and has certain rights belonging to him, which are valid against all men; (2) that with whatever gifts of mind or body a man may by nature be endowed above other men, he may not for that reason claim by his own right any power over others or a greater share of things available in common, since nature permits the acquisition both of ownership and of power to all by the same means and on the same conditions.

It is not worth discussing whether what Aristotle so labors to teach in the first book of the Politics² on the nature of master and slave, is altogether in agreement with this natural liberty. The philosopher’s teaching is thoroughly ambiguous on the subject, and has given rise to the just suspicion that he was flattering the vanity of his fellow countrymen, who imagined that nature had given them the right to rule barbarians. And this suspicion has not been completely dispelled by the celebrated Daniel Heinsius in a prolix dissertation (Rutgers’s Various Readings, IV.3),³ in that he seems, by the opinion he holds, following Aristotle, to attribute no other natural liberty to men as a whole than what belongs to birds and fish which have not yet been captured by anyone; as if men’s natural liberty did not include the right (which does not exist among birds and fish) not to be hauled away into slavery without a prior act on their own part. [I.7.2.i]

[Pufendorf derives from equality the rule “that no one require for himself more than he allows others, unless he has acquired some special right to do so, but allow others to enjoy their right equally with him.” Carmichael comments:]

This comes to the same thing as that golden and universal rule taught by our Lord, as ye would that men should do to you, do ye also to them likewise.⁴ But this rule must be understood as tacitly limited by a twofold assumption of similar circumstances on both sides and a right will conforming to reason. It ought therefore not to be regarded as a principle from which, when applied to the individual actions of life, a sure distinction between right and wrong is to be deduced. Rather it should be regarded as an indication of an appropriate remedy to free the mind from the command of self-love and the assaults of the passions, to set it in equilibrium, and as it were, restore it to itself, so that it may be free to attend to the careful weighing of the importance of the arguments on either side. [I.7.3.i]

Harmless pursuit of self-interest and the rights of humanity

Grotius discusses the benefits of pursuing one’s own interests without harming others at Rights of War and Peace, II.II.11 ff., where he teaches that such things may be demanded as due by perfect right, and gives several instances of this category. But see the examination and some corrections of these by our author at Of the Law of Nature and Nations, III.III.⁵ In general I would think that the claim of harmless self-interest should not be boldly advanced as a foundation of a perfect right unless there is also a claim of necessity. The latter is often sufficient in itself and is considerably strengthened by the former. [I.8.4.ii]

This is where we should speak of the humanity which shipwrecked men receive from all who have not divested themselves of their human nature. The reason why inhuman cruelty has sometimes taken its place is the irrational custom, which has gained the force of law among various peoples, of surrendering to the public treasury the goods of shipwrecks, so long as no living person has made it to shore from the ship. The absence of this limitation would have contributed to the saving of many lives.⁶ But it would be far better to revive among all Christians the constitution of Constantine, which survives at Codex, XI.5; a rescript of Antoninus had anticipated the example of its equity, as we are told at Digest, XLVII.9, at the last line.⁷ [I.8.4.iii]

Beneficence and friendship

See the more extensive treatment of these subjects in Cicero, On Duties, I.xiv–xviii,⁸ in which he treats beneficence at length. It is our author’s source for the best part of this and the preceding section. This is also where the rights of friendship belong. See the lucid exposition of these rights which Cicero puts into the mouth of Laelius in the book of that name. But the great man seems to allow too much to friendship, when he allows in chapter xvii that if by chance it should happen that we have to lend support to a friend’s less than honest designs, we should diverge from the straight path so long as we do not incur too deep a disgrace.⁹ Aristotle too discusses friendship at length in the Nicomachean Ethics, books VIII and IX. [I.8.5.i]