Читать книгу Encyclopedic Liberty - Jean Le Rond d'Alembert - Страница 34
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This article is by Boucher d’Argis; in the third volume of the Encyclopédie, he is introduced to the readers in the following terms: “Thanks to the care of M. Boucher d’Argis, well known for his excellent works, jurisprudence, which is unfortunately a necessary science as well as an extensive one, will now appear in the Encyclopédie with all the detail it deserves.” The article on natural law is the second one on this topic in the Encyclopédie. The article which precedes this, entitled simply “Natural Right” (Droit Naturel), is by Diderot. Whereas Diderot’s article deals extensively with the moral issues involved and presents his personal views on justice, good, evil, and general will, the present article approaches the problem essentially from a historical point of view and offers a good introduction to the main authorities to whom eighteenth-century thinkers turned for definitions of natural law.
LAW OF NATURE, OR NATURAL LAW, in its broadest sense, is taken to designate certain principles which nature alone inspires and which all animals as well as all men have in common. On this law are based the union of male and female, the begetting of children as well as their education, love of liberty, self-preservation, concern for self-defense.
It is improper to call the behavior of animals natural law, for, not being endowed with reason, they can know neither law nor justice.
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More commonly we understand by natural law certain laws of justice and equity which only natural reason has established among men, or better, which God has engraved in our hearts.
The fundamental principles of law and all justice are: to live honestly, not to give offense to anyone, and to render unto each whatever is his. From these general principles derive a great many particular rules which nature alone, that is, reason and equity, suggest to mankind.
Since this natural law is based on such fundamental principles, it is perpetual and unchangeable: no agreement can debase it, no law can alter it or exempt anyone from the obligation it imposes. In this it differs from positive law, meaning those rules which only exist because they have been established by precise laws. This positive law is subject to change by right of the same authority that established it, and individuals can deviate from it if it is not too strict. Certain people improperly mistake natural law for the law of nations. This latter also consists in part of rules which true reason has established among all men; but it also contains conventions established by men against the natural order, such as wars or servitude, whereas natural law admits only what conforms to true reason and equity.
The principles of natural law, therefore, form part of the law of nations, particularly the primitive law of nations; they also form part of public and of private law: for the principles of natural law, which we have stated, are the purest source of the foundation of most of private and public law. But public and private law contain rules based on positive laws. See LAW OF NATIONS, POSITIVE LAW, PUBLIC LAW, PRIVATE LAW (Droit des Gens, Droit Positif, Droit Public, Droit Privé). From these general ideas on natural law it becomes clear that this law is nothing other than what the science of manners and customs calls morality.
This science of manners or of natural law was known only imperfectly to the ancients; their wise men and their philosophers have spoken of it most often in a very superficial way; they introduced into it errors and vices. Pythagoras was the first to undertake a discussion of virtue. After him Socrates gave the best and broadest treatment, but he wrote nothing, being content to teach his disciples by means of simple conversations. Nevertheless he is considered the father of moral philosophy. The entire ethics of Plato, the disciple of Socrates, is contained within ten dialogues, several
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of which deal specifically with natural law and politics. This is the case with Plato’s treatises on the republic, on laws, on politics. Aristotle, Plato’s most celebrated disciple, was the first among ancient philosophers to have given a somewhat methodical system of ethics; but he deals more with the duties of the citizen than with those of man in general and with the reciprocal duties of those who are citizens in a well-run state.
The best treatise on morality that we have from the ancients is the De Officiis by Cicero which contains a summary of the principles of natural law. Still, a great many subjects are missing. They may have been contained in his treatise on the republic of which only fragments remain. There are also some good things in his treatise on laws, where he attempts to prove that there is a natural law independent of the institutions of men, which has its origins in the will of God. He demonstrates that this is the basis of all just and reasonable laws; he shows the importance of religion in civil society and concludes at length on the reciprocal duties of citizens.
The principles of natural equity were not unknown to Roman jurisconsults: some even claimed to follow them rather than the severe laws; this was the case for the sect of the Proculeans, whereas the Sabinians followed the letter of the law rather than the principles of equity.1 But in what has remained of the works of this great number of jurisconsults, one does not see that they treated ex professo either of natural law or of the law of nations.
Even the books of Justinian contain at most a few definitions and some very rudimentary notions about these two laws. We find these in the digest De justitia et jure and in the institutes De juri naturali: gentium et civili.
Among modern authors, Melanchthon gives a sketch of natural law in his Ethics. Benedict Winkler also sometimes mentions it in his Principes de droit, but he often mistakes man-made law for natural law.2
The famous Grotius is the first to have drafted a system of natural law in a treatise in three books entitled De jure belli et pacis. The title suggests merely the subdivisions of the law of nations, and it is true that the greatest
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part of the work deals with the law of war. In spite of this, the principles of natural law are laid down in the Preliminary Discourse, on the certitude of law in general, as well as in the first chapter. In this chapter, after having given the outline of the whole work and having defined the meaning of war and the ways in which one can understand the term law, Grotius explains that law taken as meaning a certain rule can be divided into natural law and arbitrary law. Natural law, according to him, consists in certain principles of true reason, which make us realize that a certain action is honest or dishonest, depending on whether it is or is not in accord with a reasonable and sociable nature. God, who is the creator of nature, therefore approves or condemns such action. Grotius examines how many different kinds of natural law exist, and how they can be distinguished from rules to which the name is applied erroneously. He maintains that neither the instinct men have in common with animals nor the instinct characteristic of all men, properly speaking, constitutes natural law. Finally he examines how the maxims of natural law can be proven.
The remainder of his work is mainly concerned with the laws of war and therefore with political law and the law of nations. Nevertheless a few topics can also be related to natural law, such as justifiable self-defense, rights common to all peoples, the original acquisition of property, other ways of acquiring property; the law concerning paternal power, marriage, legal and religious bodies, the power of sovereigns over their subjects, and masters over their slaves; territorial possessions, alienation of property; inheritance ab intestat, promises and contracts, oaths, royal promises and oaths, public treaties promulgated by the sovereign without his order, damages caused unjustly and the obligations which result; the rights of embassies, the right of burial, penalties, and how they are transmitted.
Shortly after the appearance of Grotius’s treatise, John Selden, the famous English jurisconsult, published a treatise on all the Hebrew laws concerning natural law. He entitled it De jure naturae et gentium apud Hebraeos.3 This is an erudite but unsystematic work, written in obscure language. In addition, this author does not derive the natural principles from the light of reason only. He simply deduces them from the seven supposed precepts
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given to Noah, the number of which is uncertain and which are based on a very dubious tradition. Often he even contents himself with relating the decisions of the rabbis, without examining whether they are well founded.
Thomas Hobbes was one of the greatest geniuses of his century, though unfortunately prejudiced by the indignation aroused in him by the seditious persons then fomenting troubles in England. In 1642 he published, in Paris, a treatise about the citizen4 where, among other dangerous opinions, he tries to establish, in accordance with Epicurus’s ethics, that the basis of society is self-preservation and private interest. This leads him to conclude that men have the desire, the strength, and the power to inflict evil upon each other, and that the state of nature is a state of war of all against all. He assigns to kings a limitless authority not only in matters of state, but also in matters of religion. Lambert Velthuisen, the Dutch philosopher, published a dissertation attempting to justify the way in which natural laws are presented in the treatise about the citizen. But he could only do it by either abandoning Hobbes’s principles or attempting to give them a favorable interpretation.5 Hobbes published still another work, called Leviathan,6 which states, in summary, that without peace there can be no security in a state; that peace cannot exist without control, and control cannot exist without weapons, and that weapons are useless unless they are in the hands of one person, etc. He openly maintains that the will of the sovereign not only creates the just and the unjust but also religion; that any divine revelation can become obligatory only after the sovereign, to whom he attributes arbitrary powers, has proclaimed it as law.
Since then Spinoza had the same ideas about the state of nature and has based them on the same principles.
We shall not attempt here to refute the pernicious systems of these two philosophers. It is easy to perceive their errors.
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Baron Puffendorf, having conceived the plan of a system of the law of nature and of nations, followed the spirit of Grotius; he examined things at their origin and took advantage of the knowledge of those who preceded him. To this he added his own discoveries and published a first treatise under the title of Elements of Universal Jurisprudence. This work, even though not perfect, gave such evidence of the great quality of the author that the following year7 the Elector Palatine Charles-Louis called him to his University of Heidelberg and founded for him the chair of Professor of Natural Law and the Law of Nations.
Barbeyrac in his Preface to the translation of Puffendorf’s treatise mentions another German professor called Buddaeus, who had been Professor of Natural Law and Ethics at Hall [sic, Halle] in Saxony and who was the author of a history of natural law.8
M. Burlamaqui, author of the principles of natural law of which we shall speak in a minute, used to be Professor of Natural and Civil Law in Geneva. This gives us a chance, in passing, to note that in several states of Germany and Italy the usefulness of establishing public schools dealing with natural law and the law of nations has been recognized. This law is the basis of civil, public, and private law. It would be well if the study of natural law and the law of nations and that of public law were held in equally high esteem everywhere. Let us return to Puffendorf whom we left for a moment.
The Elements of Universal Jurisprudence is not his only work on natural law. Two years later he produced his legal treatise De jure naturae et gentium which was translated and annotated by Barbeyrac; Puffendorf has also published an abridgment of this treatise, entitled The Duties of Man and the Citizen. Though his great work is called Of the Law of Nature and of Nations, he deals far more extensively with the law of nations than of nature. It has been analyzed under LAW OF NATIONS (Droit des Gens), to which we refer the reader.
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The most recent, the most precise, and the most methodical work that we have on natural law is the one which we have already mentioned by J. J. Burlamaqui, Councillor of State and formerly professor of Natural and Civil Law in Geneva. In 1747 in Geneva this work was printed in quarto. It is entitled Principles of Natural Law and is divided into two parts.9
The first part deals with general principles of law, the second with natural laws. Each of the two parts is divided into several chapters, and each chapter into several paragraphs.
In the first part, which relates to general principles of law, after having defined natural law, the author seeks the principles of this science in man’s nature and in his condition; he examines man’s actions, in particular as they concern the law; he explains that understanding is necessarily just, that its perfection consists in the knowledge of truth, and that ignorance and error are two obstacles to this knowledge.
From there he goes on to man’s will, to his instincts, inclinations, passions; to the use man makes of his freedom when he is dealing with truth and self-evident things, with good and evil, and with things not easily defined.
Man is capable of direction in his behavior, and he is accountable for his own actions.
The distinctions of the various conditions of man also enter into the knowledge of natural law; man has to be considered in his original state in relation to God, in relation to society or by himself. There have to be considerations of accessory and adventitious10 conditions resulting from war and peace, from birth and marriage. The weakness of man at birth puts children in a natural position of dependence on their parents; the situation of man vis-à-vis property and government brings about still other related conditions.
It would not be proper for men to live without rules; rules presuppose a final goal; that of man is to aspire to happiness; this is the system of Providence; it is the essential desire of man, inseparable from reason which is man’s basic guide. Since true happiness cannot be incompatible with the
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nature and condition of man, rules of conduct consist in a distinction between good and evil, in a comparison of past and present, in not seeking a good that may give rise to greater evil, in accepting a small evil if it is followed by a great good, in giving preference to the greatest good, in certain cases in being persuaded only by probability or verisimilitude and finally in acquiring the inclination toward the truly good.
In order really to know natural law, one has to understand what is meant by obligation in general. Law taken as power produces obligations; rights and obligations are several: some are natural, others are acquired; some are such that they cannot be rigidly fulfilled, others cannot be renounced. These obligations are also distinguished by their object. For instance, there is the right we have over ourselves, which is called liberty; the right of property or estate over things that belong to us; the right one has over the person or actions of another, which is called sovereignty or authority; finally the right one can have over things belonging to someone else, which is also of several kinds.
Man, by nature a dependent being, must take law as the rule of his action, for law is nothing other than a rule set down by the sovereign. The true foundations of sovereignty are power, wisdom, and goodness combined. The goal of laws is not to impede liberty but to direct properly all man’s actions.
In substance these are the topics considered by M. Burlamaqui in the first section of his work. In the second, which deals specifically with natural law, he defines it as the law God imposes on all men, which they can come to know by the light of their reason alone when they examine their nature and condition.11
Natural law is the systematization, the collection, or the body of these same laws. Natural jurisprudence is the art of arriving at the knowledge of the laws of nature, of developing them, and of applying them to man’s actions.
We cannot doubt realities of natural law, since everything contributes to proving the existence of God. He has the right to prescribe laws to men,
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and it is a consequence of His power, wisdom, and goodness to give men rules of conduct.
The ways by which one can distinguish what is just and unjust or what is dictated by natural law are:
(1) Instinct or a certain inner feeling that makes us lean toward certain actions or away from them.
(2) Reason, which confirms instinct; it develops principles and deduces consequences.
(3) God’s will, made known to man—and so becoming the supreme rule.
Man cannot arrive at a knowledge of natural laws except by examining his nature, his make-up, and his condition. All natural laws are concerned with three objects: God, the self, and others.
Religion is the principle of the laws which concern God.
Self-love is the principle of natural laws relating to ourselves.
The spirit of society is the basis of those laws which relate to others.
God has sufficiently revealed the natural laws to man; men can still help each other to know them. These laws are the work of God’s goodness. They do not depend upon an arbitrary institution; therefore they oblige all men to conform to them. They are perpetual, immovable, and admit no exceptions.
To apply natural law to actions, that is, to render equitable judgment, one has to consult one’s conscience, which is nothing else but one’s reason. When the question arises whether someone can be held responsible for the consequences of a bad action, it must be ascertained whether he knew the law and the fact or whether forces beyond his control constrained him to act contrary to natural law.
The authority of natural laws stems from the fact that they owe their existence to God. Men submit to them because to observe them leads to the happiness of men and society. This is a truth demonstrated by reason. It is equally true that virtue by itself is a principle of inner satisfaction, whereas vice is a principle of unrest and trouble. It is equally certain that virtue produces great external advantage, while vice produces great ills.
Yet virtue does not always have for those who practice it as happy outward effects as it should have. One can frequently observe the good and evil of nature and of fortune distributed unequally and not according to the merits of each individual. Evils resulting from injustice fall upon the
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innocent as well as upon the guilty, and often virtue itself is subject to persecution.
All man’s prudence is not sufficient to relieve such disorders. Still another consideration is necessary to force men to observe the natural laws, namely, the immortality of the soul and the belief in the future, where what might be missing in the sanction of natural laws will be carried out if divine wisdom deems it necessary.
This is how our author proves the authority of natural law over reason and religion, which are the two great lights given by God for man’s conduct.
The Preface of the book announces that this treatise is merely the beginning of a more extensive work, or a complete system of the law of nature and of nations, which the author intends to publish. However, since his plans were thwarted by other commitments and by ill health, he was determined to publish this first part. Though this is an excellent summary of natural law, one cannot help hoping that the author will complete the work he has undertaken, where the subject will be treated to the fullest extent.12
One can also refer to what is said on natural law in several places by the author of The Spirit of the Laws.13 (A)
