Читать книгу Two Books of the Elements of Universal Jurisprudence - Samuel Pufendorf - Страница 17
Оглавление1. Analogy of status with space.
2. Natural status of place.
3. When it begins.
4. Can an irrevocable right be sought for him who does not yet exist in nature?
5. Peace.
6. War.
7. Liberty, Servitude.
8. Adventitious particular statuses.
9. Status from location.
10. Admonition concerning expressions for statuses.
11. Obligations accompanying a definite kind of status can be derived from different principles.
12. Status of time.
1. STATUS is called a suppositive entity because it is made the basis, as it were, of positive moral affairs, so that on it they rest such moral existence as they have, and erect their actions and their effects. And thus it has a certain analogy with space, because space is likewise made the basis, as it were, of things natural, so that in it they rest such natural existence as they have and exercise their own physical motions.1 And yet it differs from space in this respect, that space is a certain kind of substance, immovable and extended from the beginning and of itself, which exists even though things natural be removed; but status (as do also all moral affairs considered under their form and as such) possesses only the characteristic of quality and attribute, so that if physical things be removed, it can by no means preserve its existence.
2. Now status can be divided according to the analogy of space into status of place and status of time. The former is status which involves respect to some moral position, and it can be considered either indeterminately or determinately. Indeterminately considered, status is either natural or adventitious. The natural status of man, since it has no special designation, we shall for the time being call humanity, or human life. It is that condition in which every man whatsoever, by virtue of the very fact that he is a man, is constituted. It also involves the obligation of observing the law of nature both towards himself and towards other men, and of living with them on terms of social intercourse; as, further, the right of enjoying from any and every man the offices due by the law of nature, and of exercising other privileges which universally attend human life; as also the capacity of acquiring special rights for himself among men. To this is opposed the status or life of brutes which are united by no mutual bond of right, so that <9> they inflict upon one another whatever they can or will, even by violence, yet do no wrong thereby.2
3. Therefore, inasmuch as that obligation of which we have spoken, as also the rights, attend the natural status of man, it is not inappropriate in this place to inquire into the limits of this status, that is to say, when it takes its beginning, and when its end. The former seems to be placed rightly at the moment when an individual can be properly called a human being, even though there be still lacking those perfections which come to man only after some passage of time; and so, when he begins to live and feel, although he has not yet left his mother’s womb. Obligation, furthermore, since it requires for its consummation the recognition both of itself and of that which is being done, displays its efficacy only when a man knows how to compare his actions with a given norm and to distinguish them from one another. Rights, however, which cause to arise in others who already rejoice in the use of reason the obligation of performing something, and can profit those who are even ignorant of what is done, are in full force the instant a human being begins to exist.3 Wherefore, without doubt he does a wrong who takes away from one who is still in the womb that which was left him by testament or assigned him by some other title, even though it may happen that this right has accrued to him within the very first days of conception; and so, when he comes of age afterwards, he will be justified in vindicating that right.4 Moreover, it is sufficient for him to testify, at the time when his age enables him to do so properly, that wrong was done him against his will, especially as his dissent always ought to be presumed; just as he who has taken away or ruined my property in my absence has immediately done me a wrong, although I may find out about the damage only after an interval upon my return. A wrong, however, cannot be done to the body of an infant unless it actually has a body, or has its material so disposed, that, from an injury done to it in the process of formation, harm comes to the body. Therefore, if one has wrongfully violated a mother, so that her offspring is thereby born disabled in some member, we think that this offspring on reaching maturity can bring an action for injury against that individual, unless the latter can establish effective ignorance. However, since the shapeless seed within the first few days of conception can be called properly neither a man nor a human body, we are of the opinion that, if any one compass its corruption or abortion, it cannot be said that a wrong has been done against that seed; although, in fact, the individual in question is sinning against the law of nature by depriving human society of a member, and is doing a wrong both to the state, which he is despoiling of a citizen, and to the parents, whom he is despoiling of a hoped-for offspring. <10>
4. But the further question is raised, namely, whether a right can be acquired by one person for another even before he exists at all in nature; and with this effect, namely, that, if this right be alienated from him by another, or in any manner whatsoever diverted, he may, upon his birth in after time, be able to complain of a wrong, as it were, done to himself, and to demand complete restitution. Laying aside the fictions of the civil law, by which in certain cases the law sustains the person of those who are not yet in existence, we are of the opinion that no right can be claimed by one who is not yet in existence, except indirectly through the person of one who is now in existence, through whom that right will be transmitted to the one who is to be born thereafter; in such wise, however, that this right will not have its effect with regard to the one to be born, until after he has been born.5 And this situation arises when something is acquired by some one or is handed down to some one, to be kept in such a mode of possession that he lets it pass on down to his successors also. Here, however, a certain difference is found; for some things are conferred upon another in such wise that it makes no difference to the donor whether the property goes to the other’s descendants or not, although the recipient, so far as he is concerned, has the power to transmit it to his descendants. But some things are conferred in such wise that the donor retains for himself a certain right over the manner of possession that has been determined by himself, in such a way that the other cannot part with it except with the donor’s consent. In whichever fashion something may be possessed by the predecessor of the one not yet born, to be transmitted to him, if in any way whatsoever it be diverted or alienated before the latter’s birth, wrong is by no means done to the one born thereafter, unless his predecessor left him at least a claim to it by way of inheritance. For, in the former case, because the property, together with the manner of its possession, is entirely within the power of the possessor, if now he has alienated it or in any way whatsoever caused it to be no longer in his possession, absolutely all right to the same is extinguished; and therefore it cannot be transmitted to the one not yet born, who can claim no right to such possessions of his ancestors except that right which is turned over to him by the same, from hand to hand, as it were, when he is already in existence.6 And, in the latter case, since authority over the manner of possession still remains with him who bestowed some property upon another, the possessor assuredly accomplishes nothing to the prejudice of his successors if he alienates it, or treats it as derelict in whatever way it may have passed out of his hands, unless the donor consent. And therefore, if the people have bestowed upon some one the throne to be continued for ever in the line of his descent, the king’s act will be of no avail if he alienate the throne against the will of the people; nor can that act of the parent redound to the injury <11> of his offspring, even though yet unborn, if, indeed, the people wish the throne to inhere according to the manner in which the possession of it was once established. But if, on the other hand, that be done with the consent of both parties, of the one who possesses the property, as well as of the one who has the right to settle the manner of its possession, that right likewise is utterly extinguished before it can come to those who are born thereafter. Nor do the people by changing the manner of possession do wrong to the latter. Because not for the sake of these, but for their own sake did the people reserve to themselves the right concerning the manner of possession; and therefore it was for no one in this case except themselves that they sought or retained the right, and if they abdicate, or change it, no one else has any ground for complaint. From all this it is clear how one must decide the otherwise thorny question, whether it be possible for the not yet born tacitly to give up their right owing to the dereliction of their ancestors.
Now human status comes to its end through death in the course of nature, after which the reverence and honour accorded to remains and reputation is exhibited primarily for the sake of the survivors. What, furthermore, we believe from the Christian religion concerning the status of men after death may be secured from the Sacred Scriptures.7
5. Subordinate to the natural status of man and proceeding immediately from it is peace; for every man whatsoever, just because he is a man, is under obligation to cultivate peace with every other man whatsoever, so long as care for his own safety does not persuade him to a breach thereof on account of the wrongs done him by others. Now peace is either universal or particular. The former extends to all men whatsoever who use the law of nature in their dealings with us, and consists first and foremost in this, namely, that no one injure another unjustly, and, if by chance controversies arise, that he be at pains to have them adjusted by a mutual arrangement or by arbitrators. This peace stands solely by obligation of the law of nature, and unless the parties to the agreement come together into one body or society on that account, it is useless to fortify it by a pact or by treaties. For by a pact of that sort nothing is superadded to the obligation of the law of nature, nor does it become thereby a firmer bond, and violence is done to a man in this connexion with equal injustice whether a pact has intervened or not. It is also alien to the custom of men to enter into such a pact whose headings or conditions would contain nothing else than the mere direct non-violation of the law of nature. For in any pact whatsoever something is placed as a condition or a heading which another would not otherwise be able to demand of me by the law of nature, and therefore something which I did not owe him fully <12> on the basis of the law of nature; just as I am not bound by the same law to enter into a pact with another, although in due consequence, and assuming my consent, I would bind myself in the matter of furnishing another with some matter that was otherwise not his due, because I would be unwilling to violate that law of nature which bids pacts to be preserved. For just as the one who assigns another his services does by no means expressly and immediately agree under the headings of the pact that he will not act towards the other as, let us say, a traitor, a thief, a rascal, &c., even if, in due consequence, all of that is involved in the pact; so that would be a covenant which deserved to be blushed at, if a man should bind himself to another for nothing further than that in his treatment of him he would not violate universal peace, that is, would not use toward him the right which is commonly employed against beasts. But what they call the pacts of friendship do superadd something to the universal peace. For assuredly we do owe something more to a friend than to any other man whatsoever, as being such, and not an enemy. Moreover, those pacts or instruments and documents by which passage is made from a state of war to mere universal peace, contain nothing else than the public attestation that there will be on both sides a cessation from war, and the conditions to be fulfilled by both or either side, if arms are to be laid down; after all this has been done, then universal peace proceeds from the sole obligation of the law of nature.
Particular peace is either internal or external. The former obtains among those who have come together into one body or society, when they supply that for the sake of which the society has been instituted, and do not violently resist the authority which the society rightfully exercises over them. This peace is not disturbed by every exercise of force whatsoever, but only by the exercise of that force against the exercise of which provision was made in the agreement to establish the society. Thus, for example, internal peace is not disturbed in the state when the magistracy forcibly restrains and punishes evildoers; but civil war arises only when others attempt by the exercise of violence to save those men from punishment and to resist the magistracy in the exercise of its right. External particular peace is that which is fostered with other societies, consecrated and fortified by special treaties. In this class, after a treaty of friendship comes a treaty of commerce, granting the right to enter the territory of the other party, to act, to conduct business, to make contracts and accounts, to engage in export and import trade, to enjoy the same rights in these matters as do the citizens of the other state, &c. For it is not required by the law of nature that I should allow another to conduct business in my country, especially if some danger threaten me therefrom, or advantage be lost thereby; and therefore such liberty of commercial intercourse must <13> be sought by a pact. The same is true of treaties of alliance and mutual aid, and that either against assailants alone, or against any one whatsoever, even the one whom we assail. Peace of this kind is broken when one party by the exercise of force attempts to inflict anything upon another which the other repels by force, or when a wrong that has been inflicted is avenged by force.
6. But, in truth, since the obligation of observing the law of nature toward another ceases when that other does not observe the same law toward me (in Book II we discuss this subject in greater detail), there arises thence, as a sort of subsidiary status for man, war, when our safety cannot be secured except by force. Although this status must necessarily be entered upon from time to time, to wit, when, because of the perversity of men who reject pacific measures, we can defend or obtain our rights only by arms, nevertheless it cannot properly be called a natural method of securing one’s rights, for the reason that nature has not directly destined man to employ this method, but has merely allowed him, in defect of a more appropriate means, to take refuge in war. Now war can be divided in the same way as peace into universal and particular. The former is the immediate consequence of the status of wild beasts, when no one exercises any right toward his fellow, but the conduct of all is governed by force alone. Such would have been the status of men had they not been bound by the law of nature to foster social relations with one another.8 Particular war is either internal or external. The former exists between those who have come together into one particular society, when they break the bond of that society and rise up in arms against one another. Such war when it burns out within the period of what might be called its first effervescence, and without elaborate preparations on both sides, is called sedition. When the subjects of a prince take up arms unjustly against him, it is rebellion. In democracies, however, and in aristocracies, when the people and the nobles separate into parties which act in hostile fashion against one another, it has become customary to call such a state of affairs properly civil war. External war is war between those who are not comprised in the same state. This is commonly wont to be divided into formal and less formal.9 The former is also called a regular war according to the law of nations (by that meaning of the word regular whereby a regular army is opposed to some irregular troop of bandits), and is war which is carried on by the authority [autoritate] of the highest power [potestatis] in the state, following a declaration. The purpose of this declaration is not that the enemy may have time to prepare himself for resistance, but to make clear that the war is not being conducted as the private venture of a few, but as a public enterprise, and that the enemy may accordingly know with whom he will have to deal. As for the rest, wars that are destitute of such requisites <14> are less formal. But when others are attacked in secret raids and by an irregular band, upon no public authority [autoritate], without declaration and without just cause, this is called freebooting.
7. The Roman jurisconsults, furthermore, formulated as the broadest and most general statuses of men (of course as men were regarded in the Roman state or a state similar to it), liberty and servitude.10 To understand the nature of these more accurately, it must be known that liberty is commonly conceived as a status in which one has the faculty of undertaking something upon one’s own free will; servitude, on the contrary, as a status in which it is necessary to do things at the desire of another. Now there are two kinds of impediments which limit the faculty of undertaking; physical impediments, as bonds, fetters, prison, guards; and moral impediments, as obligation, law, sovereignty, authority. These being assumed, it is clear that liberty is either of all kinds, or limited. The former is that which is circumscribed by neither natural nor moral impediments. Such liberty we believe that no one but God enjoys absolutely. But among men, those enjoy the highest grade of liberty who have been exempted from civil laws, or those who rejoice in the supreme authority in states. For these, although they are subject to the Divine sovereignty and the law of nature, recognize nevertheless the sovereignty of no man, nor, so long as they are such, can they be coerced through the means of punishment by any one whatsoever. Of limited liberty there are several species and grades. By a special meaning of the word, “liberty” is ascribed to those who live in an aristocracy, and particularly to those who live in a democracy. In general, however, liberty denotes the status of those who serve merely the state, and not a fellow-citizen in addition; who may of their own free will direct any actions whatsoever of their own about which there has been made no disposition by general laws. This liberty is the more restricted the more numerous are the particular obligations by which one is held. Thus, he who is his own master in the state and has not assigned to another a definite portion of his services, enjoys much more ample liberty than he who is under the authority of his father or guardians, or who has assigned his services to a fellow citizen, whether these services be more dignified, that is to say, intellectual, or more humble, that is to say, physical; under which latter class in our society come labourers and household servants. It is servitude, however, in general, when a man is bound to direct his actions about which there has been made no disposition by general laws, not merely according to the will of another, but even entirely to that other’s advantage, in such wise that there redounds to himself directly as a result of his own actions no extrinsic utility, except in so far as the other wills by an act of grace. A further characteristic is that these men are understood to have no citizenship in the <15> state and are enrolled under the head of things, and not of persons. In former times quite generally, and among some nations even to-day, prisoners are reduced to such servitude by a certain mixture of humanity and cruelty, in such wise that those who might legally have been put to death were to do lifelong service to their captors in return for the privilege of enjoying life. Some states used to leave to masters the right of life and death over these slaves, because it seemed to them not unjust that the life which had once been in their power [potestate] should remain so. The children of slaves enter upon the same status, and those who of their own accord descend to that condition. On some persons also servitude is imposed by way of punishment. The lowest grade of servitude, however, is endured by those who are restrained also by physical bonds, as those who have been cast into workhouses or prisons, condemned to service at the oar, who are loaded down with shackles, or are compelled to work behind the barrier of walls. As for what the jurisconsults say, namely, that by the law of nature all men from the first are born free,11 this must be understood ἀποϕατικω̑ς [negatively], not στερητικω̑ς [privatively], as some express it,12 that is, by the precept of the natural law no man’s liberty has been taken away absolutely and without some antecedent action of his own; but the same law has by no means prevented the possibility that an individual might be carried off into slavery for some definite cause. And by the very act the status of servitude and its conditions have been introduced of the free will of men. But as for the fact that philosophers commonly call certain men naturally slaves, to wit those who are of a somewhat sluggish intelligence and are unfit to govern themselves, this must not be understood as though men of that kind are placed by nature in a state of slavery, or are necessarily to be carried off into it, as though it would be contrary to nature if they should remain free, but that their intellects have been so formed by nature that they can bear servitude with equanimity, and neither understand the blessings of liberty nor know how to use them aright.13
8. Furthermore, those who live in states, especially Christian states, are divided commonly into three statuses, ecclesiastical, political, and economic.14 The first two are called public, because ordinarily men, by the authority [auctoritate] of a civil society, or by the authority of those men as such by whom that society is governed, are placed in them, and because these tend immediately and directly to the good of society as such. The last is called a private status, because it depends upon each individual’s own free will, and tends immediately and directly to the advantage of individuals as such. In the political status matters directly concerning men’s civil society as such are handled by public authority [autoritate]. The ecclesiastical status claims as its own the service of the <16> divine, which is to be exercised especially for the welfare of society. For although ecclesiastical persons care also for the salvation of individuals, nevertheless it is for the good of society, or the commonweal, that a particular status has been assigned them.
The economic status handles, for the advantage of individuals as such, matters which have their use in communal life. The common seed-bed, as it were, of these is the scholastic status, in which minds are imbued with a liberal culture. Entering into details one meets a number of particular statuses, which any one will find easy to reduce to their proper classification.
Determinately considered, a status is either honourable or less so. The former we commonly call office; it is that status in which a person, primarily by an intellectual effort, and accompanied with a certain degree of dignity, is expected to accomplish something for another’s advantage. The latter we call service; in it a person, without an accompaniment of dignity, and primarily by a physical effort, is expected to furnish something for another’s advantage.
9. A special status, moreover, is produced either by the mere place in which a person lives, or by the condition under which he lives. For he who engages in life’s activities in his native land, or in the land where he has fixed the seat of his fortunes, enjoying full rights of that place, is called a citizen; he who enjoys partial rights, a resident; he who has established a less stable and a temporary seat of his fortunes in some place or other, is called a sojourner. He who goes about on a foreign soil, intending to remain but a short time, is called an alien, and his status alienage.
10. In general, however, one ought to be advised that sometimes because of the poverty of language, and sometimes because of the carelessness of philosophers concerning moral entities, we are frequently compelled to use one and the same word to express both the status and the attributes, as well as the quality proper to the status. And yet these are in fact distinct, and are differently conceived. Thus, for example, liberty as a status is conceived after the analogy of space; as a faculty of action it is conceived in the manner of an active quality.15 So nobility sometimes denotes a status, and sometimes the attribute of a person, because it is conceived in the manner of a passive quality.
11. But there is yet another point which must not be passed by, and this is that just as several statuses can exist concurrently in the case of a single person, so the obligations which accompany a certain status may be derived in parts from diverse principles.16 Hence it follows, that he who gathers together the obligations which flow from some one principle, disregarding all others, does by no means forthwith establish for himself a status of that same kind, to which, beside those obligations which he himself bears in mind, no other obligations can <17> or should attach themselves. Thus, he who from the Sacred Scriptures alone gathers together the separate parts of the duty of priests, does not by any means deny that these same priests are bound to perform also those duties which are required by the ecclesiastical constitutions of individual states. So we also, who are devoting ourselves here merely to those duties of man, the necessity for which can be gathered from the light of reason, do not by any manner of means insist that the status of men ever has been, or ever ought to be, such that those obligations alone belong to it.
12. Status of time is that which involves respect to the question when, or to time considered in a moral light, and it can be divided into (1) juniority and seniority. Both of these expressions are used either in respect to duration in human life, and are called age, whose grades are infancy, childhood, boyhood, youth, man’s estate, old age, and decrepitude; or in respect to duration in some adventitious status, as that of raw recruits, of veterans, of the honourably discharged at the expiration of service, &c. In the former class can be included, perhaps, even primogeniture, a status in which one has no elder brothers by the same parent.
Status of time can also be divided into (2) majority, a status in which someone is reckoned as being able to attend to his own affairs in his own way; and minority, in which one has need of a tutor or guardian. The limits of this status vary among different peoples. <18>
