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Cover art: Glasgow College as it appeared in 1693, taken from John Slezer, Theatrum Scotiae (1693), reproduced courtesy of the Department of Special Collections, Glasgow University Library

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Foreword

Acknowledgments

I. Natural Rights

From Supplements and Observations upon Samuel Pufendorf’s On the Duty of Man and Citizen according to the Law of Nature, composed for the Use of Students in the Universities

Editorial Note

1. On Moral Philosophy, or the Science of Natural Jurisprudence

2. On Lasting Happiness and the Divine Law

3. On Human Action in the Divine Court

4. Law, Rights, and Justice

5. On Natural Law

6. On Duty to God

7. On Duty to Oneself

8. On Duty to Others, or Sociability

9. Natural Rights and Agreements

10. On the Right of Property

11. Contracts and Quasi Contracts

12. Dissolution of Obligations

13. The State of Nature

14. On the Rights of Husbands and Wives

15. On the Rights of Parents and Children

16. On the Rights of Masters and Servants

17. On the Origin of Civil Society, or the Original Contract

18. On the Constitution of Civil Government

19. On the Limits of Sovereign Power and the Right of Resistance

20. On Conquest and Patrimonial Kingdoms

21. On the Rights of Citizens

22. On the Rights of War and Peace

23. Appendix: The Rights and Duties of Men and Citizens

II. Natural Theology

Synopsis of Natural Theology

(Edinburgh, 1729)

Contents

Preface: Natural Theology and the Foundations of Morals

On the Scope of Natural Theology

1. On the Existence of God

2. On the Attributes of God and First, on the Incommunicable Attributes

3. On the Communicable Attributes of God

4. On the Divine Operations, or Actions Involving External Objects

III. Logic A Short Introduction to Logic

Editorial Note

Preface

A Short Introduction to Logic

1. On Apprehension

2. On Judgment in General, and on Immediate Judgment in Particular

3. On Mediate Judgment or Discourse

4. On Method, and Logical Practice

IV. Early Writings: Philosophical Theses

1. Philosophical Theses, 1699

2. Philosophical Theses, 1707

V. Gershom Carmichael’s Account of His Teaching Method

Bibliography

Index

It is a remarkable feature of the enlightenment in eighteenth-century Scotland that many of the most distinguished moral philosophers of that era assigned to their students texts based upon the writings of the early modern natural jurists. The works of Grotius, Pufendorf, and Locke were commented upon, supplemented, annotated, and adapted for the use of students at the universities of Glasgow, Edinburgh, and Aberdeen—only St. Andrews seems to have been the exception—from the end of the seventeenth century to the late eighteenth century. The professors who lectured on natural rights theories included Francis Hutcheson, Adam Smith, and Thomas Reid at the University of Glasgow; William Law, William Scott, John Pringle, and James Balfour at the University of Edinburgh; and George Turnbull and David Verner at the University of Aberdeen. What prompted these professors, civic authorities, and noble patrons of universities to insist upon instruction of pupils in the language and literature of natural rights?

The attractions of the natural rights tradition for the political and academic leadership of post-revolutionary Scotland were many. It was a body of writing consistent with the principles of the Revolution of 1688. In the writings of Grotius, Pufendorf, and, especially, Locke, students would find exposed the errors of the political thinking of the pre-revolutionary era: of patriarchalism, the divine right of kings, and indefeasible hereditary right. They would learn instead that men have a natural right to life, liberty, and property; that they have a natural right to defend themselves and others; that there is a natural obligation to keep promises; that governments have their origin in the consent, express or tacit, of the people. The derivation of rights and obligations from the law or laws of nature appealed to Scottish legislators and professors for another reason. Scottish civil law, particularly in the seventeenth and eighteenth centuries, was much indebted to Roman law. Grotius, Pufendorf, and the many commentators on their writings who taught in universities in Europe illustrated their moral and political principles by rules and cases drawn from Roman civil jurisprudence. Scottish students of law frequently completed or supplemented their legal studies abroad; study of the writings of the natural jurists prepared them for those studies and for the practice of law in Scotland. Further, the moral philosophy courses offered in Scottish universities in the seventeenth century had been systems of scholastic ethics which exhorted students to cultivate a way of life which would lead to beatitude, or lasting happiness. The difficulty with these systems, as identified by representatives of the Scottish universities in the 1690s, was not the end or objective of these studies; longing for beatitude was acknowledged to be the law of nature; the weakness of those systems was the method proposed for the attainment of this end, the method of scholastic Aristotelianism. Natural jurisprudence set before the student a different method and agenda for the attainment of happiness; the systems of Grotius, Pufendorf, and Locke were all of them explicitly opposed to scholastic Aristotelianism. Their systems offered instead an understanding of the law or laws of nature attended by rights and obligations which comprised a new ordering of the duties of men and citizens.

It was Gershom Carmichael (1672–1729), the first Professor of Moral Philosophy at the University of Glasgow, where he taught from 1694 until his death, who introduced the natural rights tradition to the universities of Scotland. He did so in a manner which reconciled the natural rights theories of Grotius, Pufendorf, and Locke with Roman law and with the law of nature understood in the scholastic manner as longing for beatitude or lasting happiness.

Gershom Carmichael was born in London. He was the son of Alexander Carmichael, a Scottish Presbyterian clergyman, who died in 1677. His mother, Christian Inglis, later married the Scottish theologian and mystic James Fraser of Brae. Gershom Carmichael was educated at the University of Edinburgh, 1687–91. He taught briefly at the University of St. Andrews, 1693–94. In 1694 he was appointed at the University of Glasgow through the good offices of the family of the Duke and Duchess of Hamilton and their son, to whom he dedicated the first of his Philosophical Theses (printed below), and his relative, John Carmichael, Earl of Hyndford, to whom he dedicated a second set of Philosophical Theses, 1707 (also printed below). In 1727, when the regenting system at the University of Glasgow was terminated, he was appointed Professor of Moral Philosophy.

He was reputed to be a demanding teacher. Robert Wodrow, one of his students in the 1690s, described him as “a hard student, a thinking, poring man … singularly religious…. A little warm in his temper, but a most affectionate, friendly man.”¹ Some years later he was considered by another of his students to be the “best Philosopher here.”² As a regent he was responsible for teaching all parts of the philosophy curriculum: logic, metaphysics (ontology and pneumatology, or science of the mind or soul, which was taken to include natural theology), moral philosophy, and natural philosophy. He composed his own introduction to logic (printed below) which was designed as a commentary on the Port Royal logic, or The Art of Thinking. He also composed a short system of natural theology (also printed below) which provides a succinct exposition of Reformed scholastic, or dogmatic, theology. It was written originally to supplement, and in part replace, the texts he assigned his students in metaphysics, the Pneumatological and Ontological Determinations of the Dutch metaphysician Gerard de Vries. His particular specialty was moral philosophy. The extended exposition of natural rights (printed below) derives from a commentary on Samuel Pufendorf’s shorter work On the Duty of Man and Citizen. The main outlines are present in lectures delivered at the University of Glasgow in 1702–3; the details, as they appear below, were worked out over many years of reflection and debated with the outstanding moral philosophers and natural jurists of Europe. In the fourth and final year, he taught physics; his texts were the Physica of Jean Le Clerc and the physics of Newton adumbrated by David Gregory and later by Willem Jacob ’sGravesande.

In his selection of texts for students and in his manner of commenting upon them, Carmichael was careful to exclude from consideration the canonical texts of Aristotle. He described “the forms of speaking of the Aristotelian School” as “obscure, ambiguous and, as it were, deliberately fashioned for deception.”³ He maintained, however, that the scholastic ethics taught in Reformed or Presbyterian universities in the seventeenth century had propounded a truth of fundamental importance. It was that all human beings long for lasting happiness, or beatitude. We can never achieve lasting happiness in this life, given the fallen, imperfect condition of mankind. But longing for happiness is an inescapable condition of life. And this longing is most appropriately expressed in veneration of God.

This was the first law of nature in Carmichael’s natural jurisprudence, that every man signify his longing for lasting happiness in reverence for God. One may signify such reverence directly, in worship of God, or indirectly, in respect for God’s creation: in self-respect and in respect for others. These were the second and third laws of nature, that one respect oneself and that one be sociable, or have respect for others. And there was no more appropriate way of signifying respect for persons, in Carmichael’s view, than to acknowledge that every individual should be considered to enjoy certain natural rights. And it was the proper vocation of the moral philosopher to specify those rights and indicate how they apply to oneself and to others in various conditions of life.

Carmichael’s understanding of the laws of nature permitted him an appreciably different perspective on social life from that of Pufendorf. Pufendorf had argued that the cultivation and preservation of sociable living obliged all members of society to obey superior powers: husbands, fathers, masters, rulers. Carmichael thought otherwise. He maintained (with Grotius and Locke and against Pufendorf) that every individual has a natural right of self-defense. He concurred with Locke’s reasoning that in the state of nature (in a world not yet occupied or appropriated, a negative community, as Pufendorf had conceived it) every man may have a right to property in things on which he has labored (without waiting upon the agreement of others, as Pufendorf had maintained). He argued further, again on the authority of Locke, but putting the matter more unequivocally than Locke had ever done, that no man has the right to enslave another, “for men are not among the objects which God has allowed the human race to enjoy dominion over.”⁴ He defended the theory, common to all the early modern natural jurists, that civil or political societies have their origin in an original contract, a theory which appealed to post-revolutionary Scottish thinkers, inasmuch as it excluded (particularly in Locke’s formulation) any claim to political power on the grounds of hereditary right.

One of the persistent themes in Carmichael’s commentary was his insistence, against Pufendorf, that individuals and peoples have a right to resist governments which invade their rights and liberties. Carmichael considered such a right of resistance to be a corollary of the respect for oneself and for others required by the law of nature. The same concern for the rights of individuals and of peoples led him to challenge Pufendorf’s theory that subjects may be forced to consent to a government imposed by a conqueror for the sake of peace and sociable living. Carmichael’s concern was again the loss of liberty and self-respect of individuals and peoples. He insisted, against Pufendorf, on the continuity of the Scottish people and, against George Mackenzie, on the limited government of Scotland in ancient times. He believed that the liberty and dignity of the Scottish people had been well secured by the limitations insisted upon in the Act of Union of 1707 and by the accession of the House of Hanover, “a family which has given us the most Serene King George, today happily ruling over us, and which will continue to afford a line of pious Kings, who will endure, if Britain’s prayers prevail, as long as the sun and the moon.”⁵

The academic world which Carmichael inhabited included moral philosophers and natural jurists beyond the boundaries of Scotland and Great Britain. Pufendorf’s texts on moral philosophy and the law of nature were required reading for university students across Protestant Europe. The common language of academic life, Latin, facilitated direct exchange, mutual assistance in the clarification of ideas, and debate. Carmichael referred frequently in his observations on the law of nature to Gottlieb Gerhard Titius (1661–1714), author of a commentary on Pufendorf, and a distinguished professor of Roman law at the University of Leipzig. Titius was particularly critical of Pufendorf’s depiction of the state of nature as a condition of indigence, weakness, and malice. Titius described the state of nature as a condition of natural sociability and moderate self-love. He was also critical of Pufendorf’s account of the pretended advantages of civil society. Titius reminded readers that in society subjects often suffer from persecution and cruelly conducted wars. He described slavery, in language noted by Carmichael, as “a sure sign of the death of sociability.”⁶

The outstanding authority on natural jurisprudence in the early eighteenth century was Jean Barbeyrac (1672–1744). His translations and voluminous commentaries on the writings of Grotius, Pufendorf, and Cumberland were remarkable for their erudition. He considered the early modern natural law tradition the most effective antidote to skepticism in morals and politics. But he also acknowledged the validity of many of the insights of Pierre Bayle and others. He corresponded with Locke and shared many of Locke’s theological convictions. He quarreled with orthodox members of the Reformed Church in the cities where he taught: in Berlin, Lausanne, and Groningen, where he spent the latter part of his life (1717–44).

Carmichael wrote to Barbeyrac and sent him a copy of the first edition of his Supplements and Observations on Pufendorf’s work On the Duty of Man and Citizen. Barbeyrac responded in kind,⁷ sending Carmichael the fourth edition of the same work, which contained Barbeyrac’s long rejoinder to criticisms of Pufendorf that had been made by Leibniz. He subsequently acknowledged assistance he had received from Carmichael in interpreting Pufendorf and on points of translation.⁸ The two men agreed that Pufendorf had made insufficient provision for the natural right of self-defense. They agreed that Locke’s explanation of the right of property as the product of labor was more satisfactory than Pufendorf’s account, which made proprietorship dependent on consent. They further agreed that a people must be allowed a right of resistance to a government that attempts to deprive its subjects of their rights. But they frequently differed: on the interpretation of contracts; on quasi contracts, or obligations arising from the circumstances of life; on the rights of slaves; on whether societies, as distinct from governments, had their beginnings in a contract; and on the rights of conquerors. Their differences turned ultimately on whether considerations of humanity, of a disposition of reverence for the deity, of the relevance of the divine court or forum should have a place in natural jurisprudence. Barbeyrac was skeptical of the appropriateness of such considerations in natural law. In Carmichael’s understanding of the law of nature, reverence for God and for God’s creation were matters of fundamental importance.

Carmichael was succeeded as Professor of Moral Philosophy at the University of Glasgow by Francis Hutcheson, who generously acknowledged his debt to Carmichael in his own work prepared for the instruction of students, A Short Introduction to Moral Philosophy:

The learned will at once discern how much of this compend is taken from the writings of others, … to name no other moderns, from Pufendorf’s smaller work, de officio hominis et civis, which that worthy and ingenious man the late Professor Gershom Carmichael of Glasgow, by far the best commentator on that work, has so supplied and corrected that the notes are of much more value than the text.⁹

Hutcheson’s relationship with Carmichael is complicated by the fact that the distinctive feature of Hutcheson’s moral philosophy, as expressed in his English language writings directed to adult readers—his theory of a moral sense which brings ideas of virtue and vice before the mind—has no parallel in Carmichael’s work. Hutcheson was also concerned to emphasize that moral distinctions did not depend upon whether or not one might be judged to have acted in a spirit of reverence for the deity. Insofar as the enlightenment in Scotland may be considered to have been a repudiation of Reformed or Presbyterian scholasticism, Carmichael must be perceived to have been a figure of a pre-enlightened era. But in his closely argued, often inspired celebration of the natural rights of individuals and of peoples, Carmichael’s work may be seen to have marked an enduring moment in moral and political speculation. It contributed, very fundamentally, to shape the agenda of instruction in moral philosophy in eighteenth-century Scotland. It may also be found to be relevant today.

Our work on the writings of Gershom Carmichael began many years ago. In the course of our studies we have incurred many obligations.

The Social Sciences and Humanities Research Council of Canada provided generous support in the early stages of research. We are also grateful for hospitality extended to us by the Institute for Advanced Studies in the Humanities of the University of Edinburgh on different occasions.

Our appreciation of the contexts and significance of Carmichael’s thinking has been enhanced by discussions at many seminars and colloquia where we have presented our interpretations of the texts. The scholars who have assisted us in our understanding of his writings are too numerous to be mentioned here. We are grateful for the encouragement and support we have received from colleagues and friends.

We have depended heavily on the collaboration of librarians and archivists. The assistance of David Weston, of the Department of Special Collections of the University of Glasgow, and of Arnott Wilson, formerly of Glasgow University Archives, has been indispensable. The resourcefulness of the inter-library loan staffs at McGill University and Concordia University has been much appreciated.

We must also record our indebtedness to Leszek Wysocki, who transcribed some of Carmichael’s dictates and reviewed an early draft of the translation.

Our wives, finally, have been tolerant of our enthusiasm and of the time we have spent on this project. We are gratified by the opportunity this series of books affords to make Carmichael’s writings available to a wider public.

Natural Rights

From Supplements and Observations upon Samuel Pufendorf’s On the Duty of Man and Citizen according to the Law of Nature, composed for the use of students in the Universities, by Gershom Carmichael, Professor of Philosophy in the University of Glasgow: the second edition with additions and amendments (Edinburgh, 1724)

What is true and fitting is the aim of my careful inquiry

—Horace

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.

On Lasting Happiness and the Divine Law ¹

Which treats some of the more general and fundamental points of moral doctrine which Pufendorf omitted or did not explain with sufficient clarity ²

1. It is natural for man to strive to be as happy as he can and to avoid misery so far as possible. It follows that he will use the faculties in which man excels so that his will may be determined to choose and perform those actions which he thinks will lead to his greatest happiness, and which will permit him most effectively to escape misery. And he will consider not only the good which he pursues and the evil he would avoid, but the reasonable expectation attending any action that it will lead to the one and not to the other.³

2. But man is also endowed with a faculty of reasoning which, when he employs it correctly, allows him to understand that he was created not by himself or for himself alone: that he and all he has derives from God, who is alone all that is both great and good. And since God has created all things and disposes them with supreme justice and wisdom for the manifestation of his glory, he must govern the human race to the same end, in a manner suitable to its nature.⁴

3. Man is able to recognize God as the source of all good things, and in light of his knowledge of the good to direct his actions by the power of his will. He is also able either so to arrange his actions as to testify to his love and veneration for his creator and Lord, and so in an active way to serve his glory; or on the other hand in such a way, that in betraying neglect or hatred of him, he obscures that glory, so far as he is capable of doing so.

4. That an agent of this kind may be directed to the glory of God agreeably with his nature, he must be so placed that his happiness is connected with the preservation of due subordination to God, and his misery with the violation of that subordination. Consequently, he can only acquire or preserve that happiness to which he constantly aspires by the original law of his nature, avoiding the misery which he no less shuns by the same law, when he signifies by his actions the highest esteem for the Deity, the most intense love, and the most devoted veneration.⁵ And so far as he turns aside from this norm (i.e., by actions or omissions which betray contempt, neglect, or hatred of God), so far he may wander from the path of his own happiness, and veer toward the corresponding misery. Man easily understands, therefore, that this condition has been given him by God. And if happiness and misery are not always dispensed in this life on these terms, he can quite clearly infer from this very fact that some future state of the soul is to be expected.⁶

5. Moreover, there is strong confirmation that each man has more regard for his own happiness, the more he gives evidence in his individual actions of a soul devoted to God. For the great and good God, as he is the supreme dispenser of every kind of happiness or misery for men, so is he also the unique object of the most consummate beatitude which can come to man. Man cannot achieve beatitude either in the consciousness of his own finite perfections, or in the possession of things of less value than himself, or in the contemplation of abstract truths. He can enjoy it only in an immediate vision of God himself which will last forever, a vision of God reconciled with him, and preserving him with fatherly care; and this is necessarily accompanied by the most ardent love and unspeakable joy.⁷

6. The desire which God has given man for the most consummate happiness is strong evidence that such beatitude is available to him if he perseveres in due subordination to God. But if he defects from that straight path (and each man finds within himself innumerable symptoms of such defection) and loses the right to obtain this beatitude, offered by divine grace, one must not conclude that the glory of the divine perfection in the determination of man’s eternal state will be diminished. Rather grace should be illustrated still more clearly, whether in mercifully restoring that lost beatitude or in inflicting a punishment, whose severity and duration may attest how great was the beatitude lost, and how great the offense of lèse-majesté against God.

7. It is not easy to determine from nature how far in this degenerate condition of the human race, any ordering of our actions can contribute to obtaining that beatitude or avoiding an equal misery. But it is clear enough that if any way is left to man to secure the one and avoid the other (and on this matter the kindly dispensation of divine providence toward the human race bids one not simply to despair altogether), each man is able to hope with some prospect of justice that he will obtain it the more he gives evidence of devoted affection toward the Deity in his individual actions. And even the least likelihood of obtaining infinite good or escaping infinite evil ought to have more influence with us than all the considerations opposed to it.

8. We are also led to the same conclusion by the fact that the human mind is fitted to feel the greatest pleasure and delight in actions which are most comformable to reason. Such actions are, above all, those which show love, esteem, and veneration for a most perfect object. By contrast we feel the greatest repining and remorse in their opposites. Hence it is rightly said from of old: virtue is its own reward, vice its own punishment.⁸

9. All the considerations we adduce seem to conspire to suggest that the key to the significance of actions within a man’s power to bring happiness and avoid misery lies in the evidence they give in individual actions of the most intense love and reverence for the great and good God, and scrupulous avoidance of anything that suggests the contrary sentiment.

10. In every duty which has reference to God and in which his approval is expected, the intention of the divine will is of the first importance; and the will of God demands certain actions of men as a sign of love and veneration of himself and interprets contrary actions as indications of contempt or hatred, connecting the offering of the one or the absence of the other with the happiness of man, and the commission of the one or the neglect of the other with his misery; and therefore that will, declared by suitable signs, is called the divine law.⁹ And from what has been said it is clear that this law must be recognized as the highest norm of human actions. The actions which the law requires as a sign of love and devoted affection toward God are said to be prescribed by law. Actions, on the other hand, which the law requires us to interpret as indications of contempt, neglect, or hatred toward God are said to be forbidden by law. He who performs prescribed actions because they are prescribed (and as so performed they are called morally good), or omits forbidden actions, because they are forbidden, is said to obey the law; but he who commits forbidden actions (which are usually called morally bad), or omits prescribed actions, is said to transgress or violate the law. If an action prescribed by law is done, by someone either in ignorance that it is prescribed, or without regard to the prescription, that action is said to be not formally but materially good.

11. From this, we may determine those actions or omissions of men which are liable to the direction of law, and thus capable of moral good or evil. It is those actions and omissions which are done by men knowingly and voluntarily and not involuntarily or, which comes to the same thing, which are in the power of the agent to do or not to do, or depend on the determination of his will. Those sorts of actions and omissions, popularly called free, where there is a law laid down by which they are prescribed or forbidden, are imputable to man, for praise or for censure, reward or punishment; seeing that there may be in each and every one of them an appropriate or inappropriate sentiment toward God the author of the law.

12. Therefore no one can be held responsible for necessary things because they happen, or impossible things, because they do not. Only those things should be regarded as necessary which happen whether anyone wishes them to or not; not all these things are effectively determined by the mind willing them. Equally, those things alone should be said to be impossible which do not occur, whether anyone wishes them or not; not by any means all the things which the mind lacks the requisite disposition to will seriously.

13. But for any human action, or omission of it, to become a moral act, and thus imputable to man as good or evil according to what was said above, a law must exist which prescribes or forbids that action. This law is the will of God, as we described it in section 10, declared by suitable signs: that is, signs by which a man would be able to know the will of God and the duty which is incumbent on him in this respect according to the law, if he employed his reason rightly upon them and with due attention, as well as on the existence of the conditions which perhaps that law presupposes. That is, when these conditions are present, a man is not to be considered blameless if he is ignorant of the morality of his action, and, if he does that action, he is also to be regarded as consenting in some way to the morality involved in it.

14. We infer that where there is a law, the morality of every one of our free actions or omissions is to be judged on three heads: first, from the value of what is done or omitted, both considered in itself and clothed in all the circumstances which may urge that it be done or omitted here and now; second, from the manner and measure of knowledge which one may have about the action or its omission morally considered; i.e., about the law and the circumstances just mentioned; third, from the greater or lesser inclination of the will to what is done or aversion from what is omitted; including the motives by which the will is directed to the one or to the other.

15. As regards the first, it is certain that no circumstances of an action or omission, no effects or consequences, have any power to constitute, intensify, or reduce its morality, before God and conscience, further than these things could be known or foreseen by the agent, if he brought due attention to bear. Nor is it less certain that all circumstances (at least those of any importance) are relevant to the morality of any human action, insofar as they can be known or guessed; and therefore all consequent goods and evils, however remote, even those caused more directly by other men, so far as they could be foreseen with appropriate diligence by the man on the point of action, as in all probability more likely to follow that action than its omission. Likewise consequences are also relevant to the morality of an omission, so far as they could be foreseen as more likely to happen in all probability, if the proposed action were omitted, than if it were performed.

16. However, this should not be taken to mean that all the effects which it was given to us to foresee as more likely to follow an action or omission of ours than its contrary, should be imputed to us, to the same degree (as often happens) or even in the same way, as if they had been produced directly by us; we mean only that all consequences of this kind ought to be included in the more general calculation, if not in the particular calculation. Hence it would not be a right action if it were likely that some evil would be caused or some good prevented; nor would it be right to forgo an action by which evil could possibly be avoided or good procured; the greater prospect of obtaining some good or avoiding some evil must determine our choice of action.

17. Both knowledge and intention are relevant, as we indicated in the second and third points above [sec. 14] to estimate the morality of an action or its omission. In order that an action or omission be good in these respects in the eyes of God (that is, in order that it be accepted by him as a sign of love and veneration toward him), it is required both that what is done be prescribed by law in the given circumstances, and what is omitted forbidden; and that this can be known by the man who acts or refrains from acting. It is also required that he actually know, or at least judge with probability, that the thing is so, and he must not only agree to conform to the law but also must be primarily concerned, in his action or omission, to show regard for the law. For no one can be said to be obeying the law, or showing devout affection toward God, who is doing what is prescribed by the law in ignorance or without contemplation of God and his law.

18. The evil of an action or of an omission admits various degrees based on these factors. On the basis of knowledge, it varies according to the different degrees of knowledge or suspicion that what is done is forbidden by law, or what is omitted is prescribed; or, if this is not known, in accordance with various reasons for that ignorance. On the basis of intention, it varies in accordance with the different degrees of inclination or aversion of the will; in accordance with the more estimable or more odious nature of the reasons by which one is induced to sin; and by the various degrees of weight which the consideration of moral evil has in checking the impulse to sin.

19. I have everywhere related the morality of actions to the divine law alone, since by itself it obliges and every obligation of human laws is ultimately to be resolved into it. Divine law is declared by two means. It may be declared by express signs, for example by voices and writing, and when declared by this means it is called the positive law of God. It may also be declared by the very constitution of human nature and of the other things which are open to men’s observation by these things and by the transcendent perfections of the Deity which shine forth from them, certain actions of men, in certain circumstances, necessarily signify in the one case love and veneration toward the Deity and in the other case contempt and hatred; and thus they must be regarded by God Himself as signs of moral sentiment: and when the will of God is signified in this latter mode, it is called the natural law.

20. Since therefore the will of God himself is made known to us by these natural means of producing obligation; since God himself has placed the same means within the sphere of our observation (means, that is, by which are declared to us both the distinction between actions prescribed by law and actions forbidden by law, and also the importance which the former have for bringing happiness and the latter for misery); since finally the same God has allowed us a rational faculty, by whose right use we may have the power to reflect on the things presented to us and from observation of them and continual comparison of one with another to deduce true and certain conclusions about the morality of our actions and thus of their moral effects; it is clear that the natural law is the true and divine law in the proper sense, seeing that it is ordered, sanctioned, and promulgated by God himself.

21. The discipline which teaches the prescriptions of the natural law in themselves, i.e., which elicits them from nature herself and demonstrates them, or, and this comes to the same thing, which directs human actions in conformity with that law is that very discipline which is called ethics or moral philosophy; and therefore we find no reason to distinguish it from natural jurisprudence.

On Human Action in the Divine Court ¹

[Carmichael disagreed fundamentally with Pufendorf’s opinion that natural law must abstract from belief in the immortality of the soul and an afterlife. Pufendorf had said in his preface: “The greatest difference [between natural law and theology] is that the scope of the discipline of natural law is confined within the orbit of this life” (Pufendorf, On the Duty of Man and Citizen, p. 8). In a note to this preface Carmichael offered the opposite point of view.]

We are taught by the light of nature as the fruit of acting well, to hope, and indeed to expect, not only felicity in this life in particular (although this is most closely attached to duties enjoined by natural law) but also, in general, some greater happiness or greater alleviation of misery, if not in this, at least in a future life, than evildoers will be able to attain. Furthermore, if any way of obtaining the greatest happiness after this life is left to man, [we are] to conceive of the hope of it as the more probable, the more, in the individual actions of life, we render ourselves obedient to the divine law. It is not correct, therefore, to say that the end of the discipline of natural law is confined to the scope merely of this life. [“Author’s Preface,” 6.1]

[Carmichael also disagreed with Pufendorf’s position (“Author’s Preface,” secs. 6 and 7) that natural law, like human jurisdiction, “is concerned only with a man’s external actions and does not penetrate to what is hidden in the heart …” (Pufendorf, On the Duty of Man and Citizen, p. 9). Carmichael comments:]

Since the law of nature has been ordered and sanctioned by God himself, we are warranted in saying that its edicts are particularly applicable in the court of God and of conscience and, just as evidently, direct the internal motions of the mind as well as external modes of behavior. But the contrary follows from the premises established by Pufendorf; although he attempts to soften the actual conclusion and seems to hint elsewhere at something else.² See the criticism of Pufendorf by the distinguished Leibniz (the so-called Anonymous) in Barbeyrac’s examination of this subject.³ [“Author’s Preface,” 6.3]

The internal acts of the mind are themselves human, and so far as external acts depend for their direction on internal acts, they derive their qualification [as human] from that source. It is not necessary [for acts of the mind] that there be a previous dictate of the intellect and command of the will: this would involve an infinite regress. It is enough that internal conscience and self-approval be intimately and essentially involved in all those [mental actions]. Human actions therefore are those actions which above we called free and taught that they are in every case and peculiarly subject to moral rule (pp. 25–26). This is not the place to discuss whether the schools are right to call other motions that proceed from our faculties human actions.⁴ [I.1.2.i]

It is a dispute about a word whether judgments, together with the operations which the mind performs upon ideas previously impressed upon it by objects, should be counted as acts of intellect or will. It makes no difference how we settle it, provided that we always recognize that the mind behaves actively in them, and hence freely, and that those acts therefore (contrary to what some think) are not devoid of morality. It is therefore perhaps a scholastic prejudice that all our modes of thought must be reduced to two or, as it is commonly expressed, must be attributed to one or other of two faculties; a discussion of this is more appropriate in a different forum.⁵ [I.1.4.i]

There are two senses in which a man is said to be able to understand the natural law or certain of its precepts. In the first sense this phrase is taken in a wide sense to mean only that a faculty of reason has been implanted in man by God, and signs of the true and the good have been manifested in nature, by means of which a man might get to know the difference between what should be done and what omitted, if he used that faculty rightly. In the second sense, the phrase, taken more narrowly, means that there is such a vigor of intellect in a man and such clear signs in nature of a law which prescribes some things and forbids others, that he could understand the duty laid upon him by law, using the ordinary diligence which one who is not plainly negligent of duty is rightly expected to use. These two senses must be carefully distinguished. For in the former sense, what is asserted here is true of all men; but in the latter sense (which Pufendorf seems to have had particularly in mind),⁶ it is true only of men of mature years and sound mind. In the former sense, it should be extended to all the precepts of natural law, as each man has opportunity to observe them; in the latter sense, only to the more general and more obvious precepts. Finally, in the former sense, the law must be supposed to be knowable so that one may be condemned for violation of it even in the court of God, since not even in the court of God is one thought to be personally responsible for violating a law which was not properly declared to him, that is, a law which he was capable of understanding by his own nature but which was not clearly signified to him; but in the latter sense, the necessity of supposing the law to be knowable is restricted to the human court. [I.1.4.ii]

[Pufendorf had defined right conscience (conscientia recta) as a well-informed understanding of “what is to be done or not done,” which is supported by “certain and incontrovertible reasons.” He acknowledged that most persons do not act upon such an understanding; they are guided rather by “probable conscience.”⁷ Carmichael observed:]

The distinguished Gerhard Titius, Observations, no. 17, seems to criticize this term [“right conscience”] unnecessarily, contending that conscience as here defined ought to be called certain conscience, inasmuch as probable conscience is also right. But against this one must say that merely probable conscience, even though it is sometimes true (which is all that the author admits) yet falls short of rectitude precisely insofar as it fails to achieve certainty. For inasmuch as there are sure indications of promulgated law exhibited to men, one should permit as little latitude as possible in the court of God to a kind of culpable weakness when men claim that they do not know with certainty the provisions of the law. Besides, the distinguished commentator admits at Observations, no. 19.4, that probable conscience is not sound, but requires a remedy. [I.1.5.iii]

If it is a question of what is required in the divine court, without a doubt conscience must be rightly instructed, and one must embrace what is supported by sound reasons. But secondly, if it is a question of choosing the [course of action] which is merely less dangerous, then one must adopt the rule proposed by Pufendorf,⁸ provided that it is only a question of whether to undertake or omit some action. Sometimes, however, it is clear that one or the other of two things must be done; that in fact it is less harmful that one of them be done than that both be omitted. Then, and even though it is doubtful whether either course of action is right, we must still exempt such cases from the rule proposed by Pufendorf, as Grotius correctly taught,⁹ and which Pufendorf and Barbeyrac improperly reject.¹⁰ [I.1.6.i]

It is not without justification that the distinguished Titius here reproaches the author for treating spontaneity and liberty as different conditions of the will or of its acts, despite the fact that by the definitions of both given here, he makes the former a part of the latter. For he places spontaneity in an indifference to act or not to act; but he places liberty both in that indifference to act or not to act which is called contradiction, and in the indifference to doing this [particular] thing or its contrary, which is called contrariety.¹¹ But it is of greater importance to observe that neither the indifference of contradiction nor that of contrariety belongs to the genuine spontaneity or liberty of the will or of its acts. Man does indeed experience that he is an agent who is not only spontaneous but free, i.e., that he acts from a principle which is not only internal but rational, by means of a determination of the will, and the fact itself proclaims that this condition is requisite to the morality and imputability of human actions. But neither reason nor experience suggests that absolute indifference opposed to all previous determination is necessary for this effect, or that it is actually found in our freest actions.¹² On the contrary, that hypothesis not only derogates from the absolute power of the Supreme Deity over created things, but also is opposed to the very nature of causality. For just as no effect exists without some adequate cause, so neither is it possible to acknowledge that any cause is adequate which does not determine the existence of the effect. Nor can any effect be determined to exist by a cause containing nothing that requires its existence rather than its nonexistence. Compare the Demonstration of God of the distinguished [Joseph] Raphson, part II, proposition 11.¹³ And of course it is far from being the case that man is made the master of his own action by absolute indifference in acting; on the contrary, the action itself is conceived, on that hypothesis, as some sort of entity which is independent or born as of its own accord from nothing. But these points belong elsewhere.¹⁴ [I.1.9.i]

I have sufficiently indicated in the preceding paragraph what sort of spontaneity and liberty we should affirm. It is the conception which is briefly explained at pp. 25–26 and at much greater length and with much greater power by the famous John Locke, Essay Concerning Human Understanding, book II, chapter 21, where it is centered on this point: that one acts or does not act as one wishes to act or not to act.¹⁵ In whatever created thing therefore this condition of action is found, it is precisely there that there is room for reasons drawn from the representation of good or evil. And in a mind capable of knowing spiritual things, the strongest of these ought to be those which are drawn from the prescriptions of the divine law, so that as one is prompted by these reasons to perform at the command of God’s will the actions He prescribes, and to omit those He forbids, so one is to be considered as giving evidence of, on the one hand, love and veneration of God himself, and on the other hand, of neglect and contempt. One must therefore expect the consequences of the two actions which it is worthy of the majesty, wisdom, and sanctity of the supreme deity to dispense on the one hand to his worshippers and on the other to those who despise him. The prejudice that absolute indifference is required for this effect is puerile, and is perhaps the “archetypal lie” of all the errors in this doctrine.¹⁶ It is indeed true that duty, even when it is left undone, may be said to be capable of being chosen, so far as it is capable of being known (see above, p. 32). Thus it may be said, first, in the wider sense, that a faculty of reason is implanted in the mind, and signs of good and evil are manifested, such that if a man used his reason with the greatest care, he would be determined to embrace the good. Or it may be said, in a narrower sense, that there is in the mind a vigor of reason and that the signs of good and evil are so clearly represented to it that a man would be determined to embrace the good, provided ordinary constancy of will accompanied ordinary attention of intellect. Of these the former is the standard for imputation in the court of God and of conscience: but we do not deny that the latter is rightly the most that is required in the human court. [I.1.10.i]

The author does not seem to have intended here to teach a complete distribution of goods, but only of terrestrial goods, the same distinction of goods as is suggested by the Apostle (1 John, II.16).¹⁷ Therefore, since that good toward which the will is perpetually set serves toward attaining or preserving happiness, that is, pleasure or immunity from pain, an aim to which it contributes either directly or indirectly, it is clear that all that is good is pleasant or useful (taking these terms in a rather wide sense). [I.1.11.i]

Actions which are involuntary because of force, or compelled, should rather be called passions (passiones) as the distinguished Gerard de Vries noted, Pneumatological Determinations, section II, chapter VII.6.¹⁸ Also when it is a question of actions which are involuntary by reason or ignorance, or mixed, the same author gives an equally correct account: in the former, the so-called involuntary element is something which is merely incidental to the action, apart from the intention; the latter are actually free actions, since they have been undertaken as a result of a previous choice, though joined with a tendency in the opposite direction. [I.1.16.i]

It is his own free actions and omissions, as we have defined them at pp. 25–26 and above at 35–36, which are in a man’s power to do or not to do. If anyone insists that some notion of indifference is relevant here, it is obvious that this indifference is contained in the notion of freedom given in the aforesaid passages, in that an agent is determined to act or not to act precisely in the same way that he is determined to will or not to will. We do not deny that the one is connected with the other in a man (and perhaps in any free created agent), because if we look at its mere essence, he may be determined to either of the two. But if anything beyond the indifference explained here is required for the effect of imputation in the human court, it includes only this, that a man being placed in such circumstances (so far as these can be known by men before the actual event) without the supernatural intervention of the Deity, can be determined to choose either direction. But this is not required in the divine court either. Further, actual imputation also requires a law by a man who pays due attention and when known may move him to obedience, provided only he rightly trains his reason. We have indicated above, p. 32, and pp. 35–36, in what sense both points ought to be understood with regard to both the divine and the human court. [I.1.17.i]

[Pufendorf held that a man is not responsible for actions taken under duress: when one is forced to do or suffer something, or secondly, when one is threatened with some serious harm unless one acts or abstains from acting. Carmichael comments:]

This second mode of compulsion, as it does not prevent the action from being truly free (that is, undertaken here and now by command of the will), cannot diminish responsibility for it either. (Whether it excuses an action which would otherwise have been bad, and makes it good, is another question.) But it cannot be admitted in the court of God with respect to actions by which reverence for the Deity is directly violated, a perfect right of another man is injured, or harm inflicted in other ways on us or on other innocent persons, especially a greater or an equal harm to those things which a man has no right to freely dispose of, such as life and limbs. Otherwise, the infliction of a serious injury may necessitate many actions which it would not be right to do apart from that. And it often extenuates those actions which it does not excuse in the divine court, and usually removes responsibility in the human court, if the evil represented would cause terror to a grave and constant man. [I.1.24.i]

This [absence of responsibility of an agent who acts simply as the instrument of another] is never to be admitted in actions in which a man interposes the command of his will, whatever necessity he may be under. But it is true that these actions are not always imputed to the immediate agent, nor are they of the same type of morality (far less of the same degree) as if he had done them of his own accord. This is all that the author seems to mean here, as in every passage where he denies responsibility for such actions. But this should not be extended to those actions which we have said in the previous note cannot be excused by the second kind of compulsion. [I.1.27.i]

Laws, Rights, and Justice ¹

The author is right to point out here that it contributes to the security of the human race that men’s actions be restrained by a certain rule; he illustrates the same point more fully at Of the Law of Nature and Nations, II.I. But the assertion that man actually is subject to such a rule needs to be proved from the supreme perfections of God himself, from the rational nature of Man, and from the total dependence of man on God. Cf. the early part of Supplement I, pp. 21 ff. [I.2.1.i]

[Pufendorf defines Law as “a decree by which a superior obliges one who is subject to him to conform his actions to the superior’s prescript.” Carmichael comments:]

The distinguished [commentators] Titius and Barbeyrac² object that this definition is insufficiently general, arguing that there are laws which are purely permissive as well as laws which give rise to obligation. In any case they are wrong to add in confirmation of this that all rights emerge from purely permissive laws. On the contrary, since, by the distinguished writers’ own admission, rights and obligations go hand in hand and are correlative, since it is their special property to be imposed and cancelled together, the same law which gives someone a right which is valid against others, also by that very fact imposes on those others the corresponding obligation; cf. Grotius, I.I.9. Nor should a right to mere license which does not involve such an obligation, such as the Hobbesian natural right of all men to all things, be taken as a law at all, but rather as the negation of all laws. However I do not deny that an explicit act on the part of the maker of a law often intervenes to dissolve an obligation previously imposed by law; such an act simply repeals a previous law, and is also often called a law, whether rightly or wrongly is not worth arguing. [I.2.2.i]

We cannot have a properly clear and distinct idea of moral rightness unless we refer it ultimately to the divine law. This is why we determined to establish the notion of divine law (as the sufficient norm and measure of all morality) at the very beginning. This is not the point to discuss law in general; for human laws can be conveniently discussed among the innumerable other circumstances, in the face of whose diversity the divine law itself requires many different duties from us. As for the obligatory force of human laws, the plan of the course requires us to delay this until much later. [I.2.3.i]

A superior is one who has good reasons why he may require, under threat of penalty, that another man submit his freedom of will to his discretion. Such a one is either God, whose strength can never fail, or someone to whom God has, directly or indirectly, granted this authority. The divine power is understood to be ready to support such a one, by exacting a penalty from those who resist him, if he happens on occasion not to have sufficient strength in his own hands for this purpose. [I.2.5.i]

[On the grounds which Pufendorf gives for obligation to a superior, Carmichael comments:]

With the exception of the final argument (which is the foundation not of original but only of derived power),³ the reasons which the author gives here, whether taken separately or together, are not sufficiently powerful. (Cf. Of the Law of Nature and Nations, I.VI.12.) We will be more correct in saying that the reason for the original power which belongs to God alone is to be sought in the infinite perfection of God and in the total dependence of ourselves and of all things upon him as the first and independent cause; and that the primary root of derived power is the Law of God, by which He gives one man the right or capacity to rule another, though often certain human acts also are a part of the process, and notably the act mentioned in the final clause of this section, that a man voluntarily submits himself to another and accepts his direction. [I.2.5.ii]

It is a celebrated question, whether dispensation has a place in the natural laws. It cannot be doubted that God has sometimes, by a positive declaration of his will, made that just which otherwise would have been unjust by natural law, and vice versa. But many reasonably deny that in these cases God has made a dispensation from any precept of natural law. They contend that the condition of the object has been so altered by God, not as Legislator but as supreme Lord or supreme Judge of all created things, that what would have been forbidden apart from that individual case, is now enjoined by natural law, or vice versa. See Suarez, On Laws, book I.⁴ Civil rulers set the limits of right and wrong by positive laws rather differently than the law of nature does. They make use of the right which individual citizens have given them against themselves, of accommodating their own rights to the safety and security of the state. Yet they are no more to be said to be granting dispensation from the laws of nature, than a creditor in remitting a debt is said to detract in any way from the law on paying debts. [I.2.9.i]

[Pufendorf says: “Those actions for which the law makes no provision in either way are said to be licit or permitted.” Carmichael comments:]

In ethics these actions are commonly called indifferent. Not without reason most of the scholastics deny that any human action, taken as a whole, i.e., with all its circumstances, is indifferent. We however recognize that innumerable actions are indifferent, not only in kind, that is, in abstraction from all circumstances, but also taken in conjunction with all those circumstances which can be known and weighed by other men; and therefore no man may be convicted of wrong by another man for doing or omitting them. [I.2.11.i]

Justice, and moral goodness (bonitas) and badness (malitia) in general, is attributed primarily to actions (on the goodness and badness of which, see Pufendorf, On the Duty of Man and Citizen, I.2.11, and our Supplement I.10, pp. 24–25) and secondarily to persons insofar as they are endowed with the habit of performing such actions. The moral goodness of a person is called virtue, and can be aptly defined as a habit tending toward obedience to the Divine Law, that is, to doing actions prescribed by the law with the intention of doing so, and to omitting forbidden actions with that intention. Likewise the moral badness of a person is called vice, which is defined as a habit tending toward transgression of the Divine Law, that is, to committing forbidden actions with whatever intention or to omitting prescribed actions.

But justice as attributed to actions, as the author explains in the following paragraph, is simply their goodness considered with reference to a person to whom a particular act is due; and therefore justice attributed to persons, if taken in an equally broad sense, as a constant and perpetual will to perform the duties which are owed to each and every one (that is, to God, to ourselves, and to other men), covers the whole range of moral virtue.

Yet the usual enumeration of the Cardinal Virtues as four is not completely without foundation. For the other three (so far as they are moral) are contained within the scope of justice as just defined; yet each one of them by itself is in some way a general virtue and relates to all kinds of duties. Prudence, for instance, leads to full investigation and careful judgment as to what we owe, in particular circumstances, to God, ourselves, or other men. And temperance and fortitude, if taken in a sufficiently broad sense, remove two particular obstacles to right action, i.e., an excessive grasping after the goods, and excessive fear of the ills of this life. Thus the former teaches self-restraint, the latter endurance,⁵ which, as Epictetus cleverly remarked, contain between them the sum of all moral philosophy. Cicero too put it very well at On Duties I.ii: no one can be just, who fears death, pain, exile or poverty, or who prefers their opposites to equity.⁶

Because of that one principle from which flows all genuine obedience to law (i.e., love of God tempered with reverence, and a habitual will to show it in all one’s actions), we have defined virtue, or justice, taken broadly, in a collective rather than an indefinite sense; and so we should inquire not into the various kinds of virtue but into the various relations or parts of virtue. The best way of analyzing these is by the variety of duties which they lead one to do, or if you prefer, to the variety of precepts which they incline one to obey. The broadest division is into piety, which has regard to the duties to be offered directly to God, and probity, which has regard to the duties owed to ourselves or to other men. Goodness toward ourselves, taken in its full range, is not distinguished, so far as I know, by a single name; for temperance, even if taken in a wide sense, is only a certain part of it, and does not cover the whole range. However, probity toward other men is justice itself in the narrower sense, as our author defines it at section 14. [I.2.12.i]

The unjust man does the just things which he does, either because of the penalty attached to the law, or for some other similar reason different from sincere respect for the divine law. By a sincere respect for that Law, we mean a respect which is founded in a habitual will to obey God in all things, or keeping conformity with the divine law always before our eyes, above all other considerations which can be opposed to it. This is the regard for law which should be understood at pp. 24–25 and in other passages where we speak of obedience to law and actions truly good. [I.2.12.ii]

Justice, in the broad sense here explained, as it is nothing other than goodness in relation to the person in whom the action terminates, can have regard to the agent himself as well as to any other man. [I.2.13.i]

The justice which is here analyzed as above is justice toward other men. Universal justice, however unsuitable that name may be, should be confined to duties which another person could not require in his own right. Otherwise one member of the division would exhaust the whole which was being divided.

But to penetrate this distinction more deeply, notice that justice toward other men, i.e., the habitual will to perform the duties which are due to them and to abstain from the contrary actions, assumes in the person for whom justice is to be done, some right or facility afforded by law, of doing, having, or obtaining something from someone else, and in the party which is doing justice, it assumes the corresponding obligation of permitting him so to do or to have, or of providing that which the other has the right of obtaining from him. Furthermore, just as right on the one hand and obligation on the other are founded (as will be said below)⁷ in the importance of the duty in question to the preservation and advancement of social life among men, so both the right and the corresponding obligation vary according to the varying degrees of importance. There are some duties which are so absolutely necessary to social life that human society itself would be unsociable in their absence, and therefore they are rightly enforced even on those who do not want to do them. But there are other duties, which pertain to the comfort or ornament of social life more than to its essence, and are therefore left to the discretion and honor of each individual. One is said to have a perfect right to the former, a right which is often distinguished by the term suo jure. To the latter one has only an imperfect right. Likewise, the obligation of performing the former is called perfect, of the latter, imperfect. Finally, the justice which disposes one to the performance of perfect duties is called particular justice; Grotius calls it expletive (expletrix); it is what we have called justice in the strictest sense, which is defined by the jurists as the constant and perpetual will to give each man his due.⁸ The justice which inclines men to imperfect duties is called universal; Grotius calls it attributive (attributrix); it embraces all the other virtues which pertain to other men.⁹

Note in passing that in civil society the distinction between perfect and imperfect right, and so between expletive and attributive justice, is normally to be found in the civil laws, which grant or deny an action in the courts. [I.2.14.i]

A wrong (injuria) is a violation of another’s perfect right, whether it comes about by unjust action or by omission of a due action, whether by deliberate intention or by culpable negligence or recklessness. Hence Justinian teaches that the lex Aquilia, which was directed against those who wrongfully inflict loss, applies to those who harm others not only by fraud but also by fault (Institutes, IV.3.3). [I.2.15.i]

A right may relate simply to doing or to having something; corresponding to this right is an indefinite obligation on others to permit one so to do or to have. Or a right may relate to requiring something from another person; to this corresponds a more specific obligation upon the other to do that particular thing. A wrong is committed by the violation of either of these rights. The author seems to imply this distinction in the immediately preceding words. Two of the three precepts of law given at Institutes, I.1.3, seem to make the same point: namely, the two which relate to others, not to harm another and to give each man his due. Further, the former right is violated by harming, without just cause, either the man himself or his possessions, or by taking them away without such a cause. The latter right is violated by refusing either a thing or a service which is due by perfect obligation. [I.2.15.ii]

Among these many philosophical comments, may I also be permitted here to suggest one philological observation, with due deference to others’ judgment. This is that a law is not properly spoken of as introduced (latam) by the person who commands (iubet) a law, and in whose command the force of the law lies. For the introduction of a law or legislation (legislatio), so far as I have had occasion to observe, was not, among the Romans, attributed either to the free People or in later times to the Emperors, but only to the magistrate who was the author of the law which was to be commanded by the people.¹⁰ And this is the only sense in which the Legislators of the Greek states, Solon, Lycurgus, Zaleucus, etc., are so called by Roman writers.¹¹ [I.2.16.i]

On Natural Law ¹

The basic precepts of natural law²

Pufendorf’s doctrine of the fundamental precept of natural law, which he lays out in chapter 3 [Pufendorf, On the Duty of Man and Citizen, I.3], has long been criticized by many grave and learned men as unsatisfactory and inadequate to the end it seeks to achieve. So instead of making individual notes on this chapter we will attempt to give some idea, in the most summary form possible, of a doctrine of the precepts of Natural Law which may be seen to be less open to those criticisms.

1. In the first place, we must keep before our eyes the notion of the Divine Law and of the duty it prescribes which we established at pp. 24–25. That notion is that when God prescribes something to us, He is simply signifying that he requires us to do such and such an action, and regards it, when offered with that intention, as a sign of love and veneration toward him, while failure to perform such actions, and, still worse, commission of the contrary acts, he interprets as an indication of contempt or hatred. Since a man can give evidence in his actions of both of these sentiments toward God, either immediately and directly or mediately and indirectly, the duties prescribed to us by law are either immediate or mediate.

2. The immediate duties directly express the sentiment due to God, and insofar as they are prescribed by natural law, they are recognized as tending to signify that sentiment directly, or in their very notion. Such are the duties surveyed by our author in chapter 4 [Pufendorf, On the Duty of Man and Citizen, I.4], and all of them may be summed up in this one precept, which we lay down as the first precept, that God is to be worshipped.

3. In the mediate duties, i.e., those which are directed not immediately toward God but toward created things, the same sentiment is declared to be due to God. The sum of these duties consists in this, that each man should treat the universal system of rational creatures with benevolence subordinated to love and reverence for God; and therefore each man should attempt to promote the common good of these creatures so far as his strength permits, and so long as he has no knowledge that it may interfere with the illustration of the divine glory. When we speak of rational creatures we mean creatures which are endowed not only with some capacity to reason, but with that kind of reason whose right use enables them to rise to knowledge of the great and good God and of their obligation to him. For rational creatures bear the image of their Creator in a special way. And in the divine dispensation toward them, there shine out those perfections of God, whose illustration is the aim of all divine works. Toward rational creatures God has dispensed the effects of his goodness with so generous a hand that, after the illustration of his own glories, he seems particularly to have intended their happiness, so far as they bear themselves with due subordination to him. Therefore, just as love toward the head of a household is shown through effective benevolence toward his servants, so devout affection for God, whom we cannot benefit or harm, is appropriately shown by exercising the greatest benevolence and beneficence we can toward his rational creatures, so far as they bear his image and are not contrary to him.

4. But, to bring this rule closer to practice, we must note two things. First, no consideration suggests that there are other rational creatures apart from men, whom men by any actions of theirs can either help or harm; much less can any loss or harm be inflicted on these others by the greatest happiness which men can procure for other men. Hence it follows, in the rule or summary of mediate duties given above, that for the universal system of rational creatures we may substitute the whole human race. We note, secondly, that there is no consideration which suggests that the greatest benefits which men can procure for men oppose the illustration of divine glory. For although the facts themselves proclaim only too obviously that the human race has fallen away from God, and has rendered itself liable to his righteous retribution, yet the whole series of divine dispensations toward the human race seems to prove that men are still in a state of probation and have not yet been thrust into the eternal abyss of the penal state while they live on earth. Furthermore, the good things which attend man’s state on this earth far exceed the ills mixed in with them (apart from sin), and would exceed them much more if individual men did not fail themselves and other men. So individuals, by doing the duties of which they are capable, will afford to themselves and to other men a richer use of the good things which the divine kindness has placed in their power, and will also obtain the best hope they can have of future goods. And thus far from hindering the manifestation of divine glory, they must very much contribute to proclaiming the praises of the wisdom and munificence of God.

5. Thus we deduce the second fundamental precept of Natural Law which embraces mediate duties (as the first embraced immediate duties). It is that each man should promote, so far as it is in his power, the common good of the whole human race, and, so far as this allows, the private good of individuals.

6. To answer the more particular question, by what actions one may promote the interests of the human race, one must split the second general precept into two which are directly subordinate to it. For in the first place there are certain things a man can do which benefit him or others but do not hurt anyone else’s interests; there is no room for doubt that such actions contribute to the common good of the human race. For what is of benefit to one part of the system, without harm or loss to any other part, is undoubtedly of benefit to the whole system. Since innumerable duties belong specifically to this class, which each man has a daily opportunity of doing for himself; and since duties which are to be done to others in any case can without difficulty be assigned to the precept of sociability, it is enough to say that the precepts given above entail the first subordinate precept which lays down that each man should take care to promote his own interest without harming others. Here belong the duties expounded at chapter 7, pp. 59 ff., which includes Supplement III.

7. But it happens often enough that the interests of different men, including our own and those of others, conflict, so that we are not able to do good to all men at the same time. In this case, it may not be quite clear what kind of action is more useful for the human race as a whole. There is a place therefore for the reasoning which Pufendorf uses in his third chapter. Pufendorf argues that the nature of men is so constituted that, on the one hand, individuals need the help of others (1) to preserve their lives (and every individual has an acute concern and anxious devotion to his own life), and (2) to lead their lives agreeably (on this compare Cicero, On Duties, bk. II, ch. 3 and 4).³ On the other hand, men are endowed, above all other animals, with the ability to be of assistance to others and are at the same time disposed to do so (see Cumberland, On the Laws of Nature, ch. II, sec. 23 ff.).⁴

By the same token, the constitution of human nature is such that men can abuse all these prerogatives of their nature to hurt each other in a very effective manner, and are liable to attacks of provocation which incite them to do so. It follows from this that it is necessary for the safety of the human race that it be sociable, that is, that men readily unite with one another, and behave with due consideration not for self alone but also for others. And by this union, individuals, insofar as it is in them, may obtain and encourage mutual benevolence and mutual trust. These are the two hinges on which depends the willing performance of all those mutual duties which tend to the preservation of human life and the improvement of its advantages.

8. So, from the general precept of promoting the common good of the human race, this second subordinate precept is deduced: sociability is to be cultivated and preserved by every man, so far as in him lies; that is, social inclination and social life are to be encouraged and promoted by every man, so far as it is in his power, both in himself toward others, and in others toward himself, and in all men toward each other mutually.

9. By this train of reasoning, sociability is not subordinated to self-love. It is not necessary to consider here whether the objection which Titius⁵ makes against Pufendorf is right or wrong. For we do not say that each man ought to live sociably only because he cannot otherwise be secure. We say that because social life is necessary to the safety and preservation from harm of the human race as a whole, and every violation of it tends to its harm, therefore each man ought to do his part, so far as he can, to encourage and strengthen it.

10. Our method makes it unnecessary to give a lengthy argument for the divine authority of these precepts. For we have shown above that it pertains to the showing of love and veneration toward God that each man should try to benefit the human race so far as he can. And it is likewise convincingly shown that innocuous care for oneself and sociability make for the common good of the human race. And therefore it is quite evident that God requires both from men as a sign of due sentiment toward him and that he intends to reward performance of the relevant duties, or at least punish their neglect and violation. Moreover since we learn these things from the nature which God has made for man’s contemplation, by using the reason which He has also given us, it is clear that the same considerations by which we argued for the divine authority of natural law in general (p. 28) are abundantly evident in these general precepts, and consequently in all the derivations from them.

11. Furthermore, that there is a sanction to these precepts is proven not only by those general reasons by which, at pp. 21–24, we demonstrated that it is in a man’s highest interest to obey every precept derived from the Divine Law, but also because reason and daily experience confirm the special rewards which flow from the observation of these precepts and the penalties which naturally flow from their violation. It is unnecessary to point these out in the case of a man’s duties toward himself. As for the social duties which we do for others, they are naturally followed by serenity of mind and a healthy state of the body (which even apart from consideration of moral good, usually accompanies kindly and agreeable sentiments), benevolence to other men, and the security which frequently arises from it. The contrary actions are frequently succeeded by perpetual anxiety (which is accompanied by emotions which even undermine the health of the body), by contempt or hatred for other men, and by the innumerable dangers that arise from them. Consult Cicero, On Duties, book II, where he inculcates these points at length. And because these sentiments are connected by a kind of natural entailment with observation of or contempt for the law of sociability, they have the same status as rewards or punishments seeing that this natural connection itself was established by God, the author both of nature and of the natural law.

12. As the basis of the natural laws we place not one fundamental precept, as Pufendorf does, but three: that God is to be worshipped; that each man should pursue his own interest without harming others; and that sociability should be cultivated. To the first of these we refer the duties which are to be performed directly toward God; to the second those duties of man toward himself which do not conflict with the interest of any other person; and to the third, all the duties of a man toward other men, as well as such duties toward himself as a man should only do after he has fully satisfied the demands of sociability, as they are prejudicial to the claims of certain other men.

13. To understand the use and application of the precept on cultivating sociability more clearly, we think that one should take note of three points which define the limits of what should be done and what not done in cases in which men’s differing interests seem to prompt them to different courses.

14. In the first place we note that there are certain advantages or pleasures which men can get either from their own actions or from external objects or from the actions of other men, and which it is to the interest of human society to secure to them in certain circumstances, and which should not be obstructed, withdrawn, or intercepted, since they contribute to preserving and strengthening social inclination and social life among men. This is why these advantages and pleasures are fortified by the general precept of cultivating sociability, and become rights, either perfect or imperfect, according as they are necessary for preserving sociability or merely conduce to strengthening it.

15. Secondly, we note that these rights are equal for all in similar circumstances; hence, if they are given by nature, they belong to all men equally so far as they have not forfeited them; or if they are acquired by means of some human act, they can be acquired equally by all in similar circumstances, by means of similar acts.

16. Thirdly, we note that it is not contrary to the nature of social life but is essential for sustaining it, even in cases where men’s interests conflict, that each man should take a certain particular care of himself and his own, though subordinate to the cultivation of sociability. If this were not so, there would be massive general confusion, since most men would rely on someone else to help them, while idling their time away and neglecting to cultivate the resources which nature had given them. Hence, from the other point of view, it would follow that no one could have a firm expectation of anything from other people or count on their help in advancing his own claims.

17. We conclude, therefore, that the right cultivation of social life consists in each man protecting his own right with due consideration for every man’s right, perfect or imperfect, in accordance with the assumption of the natural equality which belongs to every other man. It follows that, in order to define the duty which is incumbent on each man with respect to other men, we cannot pursue a better course than to weigh carefully, in due order, the various rights which belong or may belong to individuals, to groups of men, or even to the human race as a whole, and the different foundations on which each rests. For it will be immediately evident what obligations correspond to each right.

18. In the appendix⁶ we have given a general idea of the method which we think should be followed in doing this; it is rather different from that of Pufendorf.

Worship of God the first law of nature⁷

It is clear from what we have said that Pufendorf’s method of deducing our duties toward God [i.e., indirectly from sociability] ought by no means to satisfy us. On the contrary, it is a prior and more evident principle that God is to be worshipped than that one should live sociably with men. This is particularly so since, as the distinguished author admits at section 10 of this chapter, for the precept on cultivating sociability to obtain the force of law, one must necessarily presuppose that there is a God, and that he rules all things by his Providence. And it is not true, as the author adds here, that reason alone can progress no further in religion than so far as it serves to promote the peace and sociability of this life. For even though the religion which effectively procures the salvation of souls originates in a particular divine revelation, yet reason itself teaches that in worshipping God and offering universal obedience to the divine laws, one must have before one’s eyes something more than the good things of the present life, especially if these good things are only regarded as flowing by a certain natural consequence from the performance of those duties. See pp. 22 and 24 and compare p. 30. [I.3.13.i]

Care of self the second law of nature

There is no reason to deduce care of self from sociability, for any man would be bound to care for himself even though he were alone in the world. Similarly there seems to be no better reason why care for self should be deduced from religion in the narrow sense more than sociability should. Obviously duties of both kinds must be performed with regard for God; but despite that, all duties, apart from direct worship of God, are appropriately deduced from their own principles established above. Thus one must admit that there is such a close bond between the duties of man toward God, toward himself, and toward other men that there will always be a temptation to change the order and try to deduce them from any one of the three principles given above.⁸ [I.3.13.ii]

On Duty to God ¹

Among the duties owed to God, our author is right to give first place to correct beliefs about him. Beneath the first elements of moral doctrine we must set a sure and certain knowledge of God, of his attributes, and of the dependence of all things upon him. (In this sense the distinguished Gerard de Vries in the last paragraph of the final chapter of his Pneumatological Determinations, section 3,² has rightly observed that the end of pneumatology is the beginning of moral philosophy.) Consequently these beliefs are not put forward here so much to establish their truth as to emphasize every man’s duty of supporting and protecting them. [I.4.1.i]

The older writers may profitably be read on this argument [to the existence of God from “reflection on the fabric of the universe”]; we will realize that nature clearly confessed its author even before it was explored. But we should give particular attention to those who have recently written on this question: for the greater the progress that has been made in the science of nature, the more brightly the signs of the Divine Workman shine.³ [I.4.2.i]

Conviction of the existence and providence of the Supreme Deity should be planted deep in our minds as the immovable foundation of all religion and morality. And therefore, we must very much beware of those who oppose this belief and must root them out of our midst, as they have an utterly destructive effect on men’s very morals.

Particularly pernicious in this way (apart from atheism and Epicureanism, both of which, as the author notes, equally attack in a very direct way all religion and morality) is the opinion of those ancients, whether philosophers or poets, who taught that all things and actions are necessarily determined by a certain inevitable fate, antecedent to the determination of the divine will; they subjected even Jove to fate.

Nor is it a correct understanding of the absolute dominion of God to think that the network of secondary causes and effects is so firm and inviolable that even God himself could not abolish it once he had established the original frame of things, or suspend it in a particular case. Innumerable examples of miracles fully prove the falseness of this doctrine. It is a mistake to object, as our author does at Of the Law of Nature and Nations, II.IV.4, that if you accept this belief, you seem to destroy the effect of prayers, penitence, and moral reform. For God could connect the moral actions of men with these moral effects both by his decree and also, if he willed, by the pre-established harmony of things. And it is reasonable to believe that this is the case, since experience proves that divine providence often reveals its splendor in attuning the outcome of events to our moral actions, even when there is no reason to believe that a miracle has occurred. Others may wish to argue for a physical concatenation of causes and effects in order to exclude the moral connection of which we have spoken, but we cannot readily accept this error, which has quite pernicious consequences, so far as morals are concerned. Those who attribute an insuperable efficacy of this kind over the good or ill events which happen to individuals, to the aspects of the stars or other imaginary causes which have no connection with them, add insanity to impiety by tormenting themselves with an anxiety which is as vain as it is irreligious.

But none have a more unworthy conception of divine providence than those who think that evil spirits are permitted to control human affairs so that one can only get or keep one’s health and safety in this life by showing some fear or reverence for them in one’s words or actions. Akin to this is the impious, or shall I say, fatuous, superstition of those who, although they reject the malice of evil spirits and the pernicious arts of sorcerers, yet themselves employ absurd, idolatrous, and diabolical practices which rest on no sound reason, no experience of intelligent men, nor on any revelation except perhaps from the devil, but which find their strength in the mere stupid and fatuous credulity of the ignorant people. The pernicious effect of all these superstitions shows itself not only in inspiring groundless anxiety and terror, but above all because those whose minds have once been taken over by these ravings show no concern thereafter to conform their actions to the norm of the divine law, whether in performing their duties toward God himself or toward men, since they have placed all their hope and salvation, and thus all their religion and morality, in the observance of these follies. [I.4.4.i]

Spiritual, or thinking, nature cannot be at all reconciled with extension, since the latter includes a real diversity of parts; and therefore the infinitude of the former does not lie in infinite extension, nor its finitude in figure or in the termination of extension. Therefore, figure is to be denied to God, not only because it involves the limits of a thing having figure or an outline, but also because it presupposes extension, which, precisely because it is constituted of finite parts, cannot be an attribute of an infinitely perfect Being. And for the same reason, not only can God not be fully comprehended by imagination properly so called, he cannot be reached to any degree at all by this means. [I.4.5.i]

I would think that a distinction absolutely must be made here. For since what is understood by the term sensation and its individual kinds, taken strictly, involves a passive state and hence includes dependence in its very idea, it must certainly not be attributed to God. But we must speak differently of the terms intellect, will, and knowledge (provided the last is not restricted to dianoetic knowledge). For although they denote things which in men really are imperfect, yet those imperfections are not at all involved in the abstract idea itself which is associated with these terms. For it is not true that intellection or cognition of the truth in themselves involve a passive state or that willing as such implies lack of an appropriate object. On the contrary he would have an utterly unworthy conception of God, who did not conceive of him as understanding as well as willing in the most perfect manner. Our author agrees with this at Of the Law of Nature and Nations, II.IV.3, and elsewhere. [I.4.5.v]

[Pufendorf had reduced the terms applicable to the attributes of God to two kinds, negative and indefinite. Carmichael would add a third:]

When indefinite terms such as good, just, and the like are attributed to God in an eminent degree, they are in this case equivalent to superlatives. I would think therefore that one should add relative terms as a third class, such as those the author mentions later, Creator, King, Lord, etc.

From what has been said it is clear that not only must all imperfections be far removed from the Supreme Deity, as happens particularly in the case of his incommunicable attributes,⁴ but we must also constantly attribute to him also all the pure perfections and in particular those proper to rational agents, which are usually called the communicable attributes of the Deity,⁵ and insist that they are possessed by him in the most perfect, and consequently incommunicable, manner. We must also attribute to him every activity concerned with created things, especially rational creatures, which is worthy of those perfections. That is, God must be conceived as infinitely wise, powerful, just, and holy. From him, as from an intelligent and free cause, other things have their origin and the principle of their motion. And as he governs all things by physical authority, so he governs rational things, particularly men, by moral authority. By this authority he requires duties from them; observation of duties pleases him, violation and contempt of duties displeases him; and in their name he will exact an account from all incorruptibly, without respect for persons. For recognition of the moral authority of God and of the moral perfections he displays contributes in a certain special way to duly regulate men’s moral behavior; hence those who oppose this belief should be carefully watched and kept far away.

Such are the fantasies of those who imagine that the Supreme Deity strikes bargains about the sins of men. That is, that he accepts the offering of gifts or of any kind of rituals (especially those devised by men’s puny minds) in satisfaction for wrongs which men have committed, or are about to commit; or that a man can be freed, by any satisfaction offered for sin, from the obligation to perform the duties of piety and goodness in the future. Even more detestable is the insanity of those who hold that the Deity favors certain sins and treats them as jokes—as the old pagans imagined that the gods smiled at the perjuries of lovers; they even established different gods as patrons of nearly every different kind of crime. One must also outlaw the impiety of those who dare to hope that their wicked prayers will find favor with God, by which they seek to bring down some undeserved evil on others for their own benefit, or that a religion will be pleasing to him whose teachings tend to subvert the common laws of sociability, as when they teach for example that faith is not to be kept with men who differ from them in religion, that nothing is forbidden in the propagation of a religion, and so on. These, I say, and similar monstrous doctrines, as alike contumelious to God and his authority and inimical to all religion and moral goodness among men, are to be thoroughly detested by all good men. [I.4.5.vi]

[Pufendorf is considering “the usefulness of religion in human life” as “the ultimate and the strongest bond of human society.” Carmichael comments:]

By the term religion here, of which these things are said, we are not so much to understand the narrow sense of the direct worship of God, as that universal respect for Him as Supreme Lord and Judge which should be involved in all obedience to law, upon whose removal, ideas of moral good and evil become empty noises. Some, including Grotius himself, Rights of War and Peace, Prolegomena, sec. 12, have rashly taken up a contrary opinion; and some have championed it in our time with an ulterior motive, namely, to conceal the hideous features of atheism under whatever disguise they can. But this matter requires a fuller discussion than the plan of this course allows: see the remarks of the distinguished Barbeyrac against the censure of Anonymous (i.e., the celebrated Leibniz), secs. 13 ff.⁶ [I.4.9.i]

On Duty to Oneself ¹

It is not a superfluous obligation for a man to take care of himself with regard for the law and for the superior who has made the law. We have discussed the grounds on which a man is obliged by the law to look after himself at p. 53. [I.5.1.i]

Pufendorf passes too lightly over the cultivation of the mind, a subject which has an important place among the duties which natural law prescribes. This seems to be virtually the only thing which some recent writers understand by ethics when they opt to distinguish ethics from natural jurisprudence. In various editions of this treatise several commentators have corrected this defect from the author himself by placing the material from Of the Law of Nature and Nations, II.IV, in their text or in footnotes or appendices. We decided to insert the following supplement here, which is largely excerpted from that source,² as we indicated in the preface. [I.5.2.i]

On the duties of a man toward his own mind³

The cultivation of the mind consists particularly in these things: to fill it with sound opinions in matters relating to duties; to learn how to judge rightly of the objects which commonly stimulate human desire; to be accustomed to command the passions by the norm of reason; and to be duly instructed in some honest skill appropriate to one’s conditions and manner of life.

1. Among the opinions or beliefs with which the mind must be filled, the most important is a sure and firm conviction of the topics surveyed in Of the Law of Nature and Nations, II.IV, on God as the Creator, Preserver and Governor of this Universe. This conviction not only implies a specific human duty (which that chapter impresses upon us), but is also the foundation of a kind of joyful peace, which pervades the human mind; it is also the mainstay of the practice of all integrity toward other men. Hence a right conviction about the existence and providence of the Deity is a duty, in different respects, toward God, toward ourselves, and toward other men.

2. After the knowledge of God, it is of the greatest possible value to every man that he properly know himself, as he relates to God and to other men. In the former respect, each man should know that he was created by God, and depends wholly on his effective providence; and he is thus held by a most sacred bond to worship him, and to conduct himself with God in view in all things, however contrary this may be to his own or other men’s desires. He ought also to know that he has been endowed by his Creator with a rational faculty, whose right use requires that he should not be carried along by blind impulse, like an animal; but should set before himself an end worthy of his nature, and should use means fitly chosen for its achievement; and thus not wander through this world but proceed purposefully, which is the prerogative of a wise man. With respect to other men, each man should recognize that, however great he seems to himself, he is but a small part of the human race; in which every other man naturally plays an equal part: and therefore, since sound reason teaches us to make similar judgments about similar things, he must permit to others in similar circumstances everything that he claims for himself; and should no more prefer his private convenience to the common good of the human race, than he would privilege the comfort of his smallest limb over the health of his whole body.

3. Next, what is relevant to a man’s due knowledge of himself is that he should have taken the measure of his own strength and the effect which his individual actions can produce on external things. He who has duly weighed this will readily acknowledge that there are some things which cannot be promoted or prevented by his own actions; others, which seem to depend somewhat on the influence of his own actions, but in such a way that innumerable other causes may intervene and frustrate his efforts; others finally which depend wholly on the determination of his will, and such are every man’s free actions. A man should give particular attention to the last, to bring them into line with the norm of sound reason, since they alone in themselves, can be imputed to him, for praise or blame, reward or punishment.

4. A man should give due attention to the things which do not wholly depend on human will, provided that they do not altogether exceed the influence of his actions, and if they tend toward his legitimate end and deserve to receive his attention. Everything else should be committed to divine providence; nor ought anyone to disturb himself on account of evils which have befallen him, or may befall him, without his fault. This eliminates no small part of human cares. And just as in those things which give scope to human foresight, we should not blindly entrust the matter to a throw of the dice, as it were, so, if we do what it is in our power to do, for the rest we cannot control an outcome which is unforeseen and not dependent on our direction. And just as it is the part of a wise man not only to see what is immediately before him, but also to foresee what will be, so far as the human condition allows, and constantly to pursue a policy duly formed by this consideration, so it is also the part of a wise man that he not easily allow himself to be turned away either by fear or by enticement of present pleasure. On the other hand, it is characteristic of a stolidly obstinate person to struggle against the stream, and not adapt to things when he cannot adapt them to himself. Finally, since the outcome of future events is uncertain, one must not have too secure a confidence in the present nor anticipate the future with too anxious concern; arrogance in prosperity and despair in adversity are to be equally eschewed.

5. We have said that it is also relevant to the right cultivation of the mind that each man should accustom himself to judge rightly of those things which commonly stimulate men’s desires. In the forefront of these is reputation, which has always been valued by men of good character, men who are made of the right stuff. Every man should take the greatest care to preserve, so far as he can, his simple reputation,⁴ that is, the character and report of being an honest man. If it should be assailed by slander, he should do everything he can to restore its luster. But if, after every effort, an unfavorable opinion prevails with the public, a good man may be satisfied with the consciousness of his own innocence, whose witness is God. A wise man should not seek an intensive reputation, which is founded in special honors and marks of honor, except so far as it arises from a distinguished ancestry or opens a wider field to illustrious action by which he will deserve well of the human race. When honor is won, he should not boast of it arrogantly, much less should he canvass for undeserved honors; least of all should he intrigue for them by evil and shameful practices. And if we should not win honors equal to our merits, our spirit should not be cast down, nor the zeal for doing well abandoned.

6. In addition various external objects are necessary to the support of life; and duty sometimes also obliges us to provide them for others. And so we are right to strive to obtain them, so far as strength, opportunity, and honesty permit. But here every man must remember that a finite, even a small store of these things is enough for his own use and his family’s, so that he should learn not to give too much scope to his desires and ambitions. What we have acquired should be considered as supports for our needs and material for doing good to others, not as things we may pile up without end to gratify our imagination. One must also remember that nature does not cease to be fertile in things which are useful to men. Likewise, what we lay away against the future is liable to all kinds of accidents, so that a restless anxiety often tortures men as much in the protection of their goods as in their acquisition. And everything must be abandoned when we die. So just as one should not neglect an opportunity of justly acquiring external things, so too one ought not to lose heart if they are stolen or lost. And just as they should be expended readily, if duty requires, so they are not to be wasted beyond necessity; for it would be equally stupid to withhold them from a use for which they were intended, as prodigally to consume them in unsuitable and superfluous ways.

7. Next we turn to the pleasures of the senses which also entice men’s appetites, and the pains appended to them. So far as possible we should avoid unnecessary pains, since they harm the body’s health, at least in some part, and by engrossing the mind’s capacity, make it less capable of performing its functions. We should welcome objects that please the senses, at least to some degree; for when these are used with moderation, they conduce both to health of body and to the mind’s ability to perform its functions. Exquisite sensual pleasures, however, should not be cultivated, since they weaken the strength of the body and stifle the vigor of the mind, and commonly make it useless for doing any serious business at all, as well as using up time meant for better purposes, and wasting the stock of external goods which are necessary for living life comfortably; and in other ways are often associated with sin. Therefore just as it would be close to insane to give oneself unnecessary pains, so it is the part of a wise man rather to sip modestly at the pleasures of the senses than to drink deeply of them. Above all one must beware of allowing oneself to fall into a violation of duty for the sake of pleasure.

8. We have pointed out above that it belongs to the cultivation of the mind, to accustom ourselves to be restrained in our passions. For if they shake off the rein of reason, and become excessive, they waste the vigor of both mind and body, blunt the edge of the judgment, and drive one headlong into innumerable deviations from duty. Here it would be useful to offer a more detailed discussion.

9. It is widely known that love and hatred are the springs of all the passions; hence the moderation of all the passions depends on governing them rightly. The rightness of love and hatred may be said to consist in two points: (1) their direction to appropriate objects; (2) the appropriateness of their intensity to the value and importance of their objects. But since love and hatred, in a certain special way, are directed toward persons, it is important to know that in the love of persons, an apt distinction is commonly made between the love which consists in benevolence, by which we intend the welfare of others, and the love of sexual attraction, by which we seek to enjoy the company of others in whatever way we can. In the former kind of love, indeed we do not so easily stray beyond the olive trees, provided we submit the interests of others, equally as our own, to the dispensation of divine providence, and do not wish upon them false and imaginary rather than true goods. But one must be careful to direct the love of sexual attraction to a worthy object, so that it does not develop into “chambering and wantonness,” nor interfere with other duties or degenerate into disease. And finally if we aspire to the enjoyment of an object which we cannot get or keep, we must be careful that our love is not so intense that if the object is withdrawn or lost, the mind will completely collapse.

Similarly hatred of persons is either the hatred of malevolence or the hatred of aversion. Hatred of the former kind is always bad; and one must strive against it with all one’s strength as a most destructive mental disease. But the hatred of aversion, by which we avoid the company or even the mention of a person, is also quite a disturbing emotion to anyone who suffers from it. We should therefore get control of it, and not direct it toward someone who does not deserve to be avoided, and not let it lead us to hurt anyone contrary to duty. We should also free ourselves from it by simple neglect, by avoiding the mention or company of any person whom we properly avoid rather than by frequent repeating of any act of hatred. However much a person may deserve to be hated we should not draw the poison into ourselves in this way.

10. From what has been said it is readily apparent what the moderation of the individual passions consists in. In the first place, desire, which is nothing other than love or hatred exercising itself with respect to future time, is kept within just limits, if the simple love or hatred, from which it is born, keeps proportion with the dignity of the object. When desire settles on an object which can be stolen or lost from without, it is essential to the tranquillity of life not to allow the mind to be too fixed in the contemplation of that object; nor to permit it to turn into a sickness by repeating too anxiously the act of desire; for if we should be deprived of the desired object, it will end eventually in the worst of all the passions. I mean sadness, which, as an enemy to our nature, we can scarcely too much resist; except so far as piety demands that we grieve for sins committed by us or by others, and humanity that we grieve for calamities befalling other men. Most to be detested is the sadness brought on by inappropriate causes, as, for example, by the prosperity of others; whence arises the sadness called envy, which often produces pernicious effects both in others and in the envious man himself; for the envious man is corroded by his own character as iron is by rust.

Related to sadness is fear, a passion as painful as it is pernicious and destructive of the mind’s capacity to act; and therefore only to be indulged so far as it prompts us to take timely measures to ward off imminent danger, so far as we can; anything beyond such precaution is useless and harmful. Anger too belongs among the gloomy passions: it is a violent passion, the Stoics called it a short insanity.⁵ We do not go so far as to condemn it altogether, but we think it is plainly wasted labor to celebrate its usefulness, as some have done; how many people need a spur here rather than a rein? Certainly, it is very difficult to keep anger within just bounds, and an excess of it must be regarded as one of the things which most of all makes human life unsocial, and has pernicious effects for the human race. Thus we can scarcely be too diligent in restraining our anger. But we must take especial care not to do anything in a state of blazing wrath which will bring a long train of consequences after it; if we cannot wholly rid ourselves of the sickness of anger, which in itself is sufficiently serious, at least we need not bring on ourselves or others its pernicious consequences.

11. The leader of the chorus of the kinder emotions is cheerfulness, a friendly passion indeed to human nature. But it must be under control, so that it does not show itself at the wrong times, or for unsuitable reasons (especially for the misfortunes of others) nor degenerate into frivolity nor destroy our sense of the evils to which we are still subject or liable; and that it does not exclude thoughtful care for the future. Related to cheerfulness is hope, which, however agreeable, must be held in check so that the mind does not suffer by it. For in busily embracing objects which are vain, uncertain, or beyond our powers, we may wear ourselves out for nothing; and hope, prolonged to infinity, may impede our capacity to enjoy the good things we already have.

12. To counter all the immoderate assaults of the passions, we must make careful and intelligent inquiry about the things which come before us with a particular significance for ourselves (for these are the only things that have the power to excite the passions in us). We should refrain a while from passing judgment on them, if the case allows, until the hot assault of passion cools down at least to the point where it does not refuse to admit the governance of sound reason. To this end, our thoughts should be diverted elsewhere for a while, until time and quiet shall have soothed to some extent the commotion of the blood and the animal spirits. But if the passion presses, and the nature of the situation before us does not admit delay in action, contrary considerations should be suggested to the mind, so that the impulse of passion may drive us from the straight path as little as possible. Even if they are of too little significance to determine the mind’s direction altogether, they will be able to blunt the former impulse, and set the mind as it were in equilibrium, and so make it more fit to perceive the real dictates of sound reason. If by these and other means (on which there is no time to dwell) our passions are reduced to a reasonable temperature and subjected to the power of reason, it cannot be denied that they acquire an admirable utility, as they alert both mind and body to speedily obey and expeditiously perform what reason prescribes.

13. But all this and everything else that aims at the moral cultivation of the mind, has the particular purpose of filling the mind with love of the right and with the proper disposition to perform every duty. This cannot be achieved in this depraved state of the human race without the special assistance of the Deity, and all genuine dispositions of this kind assume a sound and rightly founded conviction of the sure means of obtaining the favor of God and the supreme happiness which lies in him. And this conviction, in corrupt men, can only rest on a really firm foundation through a special revelation of the divine will. It is therefore evident that each man is bound by the prescription of natural law to seek that revelation at all costs, and to fashion his conduct by it when found; and thus natural religion itself in a certain way leads to revealed religion.

14. A final point: since with regard to his own cultivation every man also has the duty to make a timely choice of some manner of life which is honorable, advantageous, and suited to his capacity and fortune, he is also bound to apply his mind at an early age to learning what will be useful in the kind of life he intends. Those whom a kinder fortune allows to live their lives without earning their income by their own labors, may not regard themselves as completely exempted from this obligation. For although they do not seem to be obliged by law to practice a skill for the sake of an income, they are nevertheless not only obliged to take good care of their property and to administer it prudently (and this cannot be done without some education), but they must also apply themselves to promote in some way the advantages and benefits of human society, and especially of the country to which they belong and of the men with whom they have to do. It would be exceedingly unworthy in men of great fortune, who claim higher reputation and greater authority than others, to offer no benefits to the human race, to be useless burdens on the earth, drones born to feed off the fruits of other men’s labors. To the contrary, the more they expect to be held in esteem above others, the more they should be anxious to deserve that special honor by conferring exceptional benefits on their dependents, their country, and the human race; otherwise their claim to honor for themselves on the ground of birth or fortune would be empty indeed. Since therefore their own happy position gives men of superior fortune, more leisure and the other prerequisites of study than other men have, and also offers them an opportunity to perform duties of greater importance to their country (duties which cannot be properly discharged without a variety of knowledge), it cannot be doubted (provided nature has not denied them the intelligence which few will admit to not having) that such men should aspire to achieve a wide range of knowledge. See Locke, Essay, IV.XX.6.

The right of self-defense

[Pufendorf says: “Despite the dictum that one is not justified in resorting to killing when the danger can be averted in a milder manner, it is not usual to be scrupulous about details because of the mental turmoil caused by imminent danger.” Carmichael comments:]

The distinguished Titius rightly observes that the doctrine of this paragraph should apparently refer especially to the civil state, which the author had been discussing in the previous paragraph.⁶ But several provisos which are introduced here for restricting the license of violent defense, may well be applied to both states, provided they are properly explained. For not even in the natural state is it right (at least by the law of charity) to rush precipitately into killing when the danger, both present and future, may be deflected by a more appropriate means. Hence in that state too it is rash to descend from a safe place to meet a challenger, when the provocation comes from a sudden attack which will perhaps soon disappear, or when there is hope that the aggression of the attacker will be checked later with less danger to ourselves or others.

Finally, the hatefulness of duels asserted by the author at the end of this paragraph is largely valid in both states, both against the challenger and against a man who has been challenged and voluntarily stands firm and obstinately remains in the same mind. Even in the natural state a declared contest is not a completely acceptable mode of asserting one’s right and may only be excused by necessity (see Grotius, Rights of War and Peace, III.XX.43). And likewise so-called injuries, in the proper meaning of that word (injuriae), i.e., the insults which normally involve fellow citizens in duels with each other (for duels which are entered upon to settle a doubtful question, or claim an object which is not due by perfect right, are manifestly unjust); insults, I say, do not afford a just cause for extreme violence even in natural liberty. For it is utterly abhorrent to equity, to humanity, and to justice itself to attempt to repel or vindicate them in that manner. That is, the restoration of an injured reputation, which they usually say is the point of this ferocious avenging of injuries, is a pure and unadulterated fantasy in the minds of men of outrageous vanity. Such men need to learn that true reputation (which is nothing but the opinion of one’s excellence on the part of other men, particularly of good and sensible men) can be neither got nor kept except by doing good and deserving well of human society; and that it cannot be weakened by insults, except so far as they raise a suspicion that one deserved to be so badly treated; hence reputation can only be restored and renewed by measures which altogether remove that suspicion. No one but a madman could convince himself that violence leveled by private assault against the author of the insult would contribute to this one little bit. By this sacrilegious attack therefore, they deliberately profane two most sacred words: they are not ashamed to proclaim their wicked customs as laws of honor. But these customs are diametrically opposed to divine and human laws, and have been transmitted to us from barbarian peoples and centuries, to the great dishonor of human nature, to say nothing of the Christian name. [I.5.13.i]

Apart from what the author mentions, the victim can require nothing else by his own right from the attacker. But it is a good question whether, even in the state of natural liberty and equality, physical punishment cannot be inflicted on those who have openly violated the law of nature, in the name of the human race, so to speak, as a measure pertaining to its common security. With Grotius (Rights of War and Peace, II.XX.40 ff.) and Locke (Second Treatise of Government, ch. 2), we think this question should be answered emphatically in the positive, at least in the case of the more atrocious crimes, which have been committed with malice. However great moderation should be shown here. For punishment should not be inflicted suddenly or secretly, in case greater disturbances arise in a society and make the remedy more disastrous than the disease. In particular one must be careful to prevent the injured man himself, still seething with anger, from trying to keep on punishing and using force to assert his right.

Here the author ends his discussion of defense against unjust aggression, but prematurely; he should first have made a clear statement on the nature of human rights and on the foundations on which they rest before discussing the license permitted in their defense. This is the point that Titius (Observationes, no. 119) seems to suggest in his own way, when he points out that the precepts of self-love and sociability should be treated separately before they can be compared with each other. Thus one should add the teaching about the prosecution of one’s right to the teaching on the defense of one’s right. Pufendorf could not have referred less appropriately to this passage. For (as we said above at p. 45) we not only have a right to do something or hold it simply, but often also have a right to require something of another person. As the former right is properly asserted in resisting someone who unjustly attacks us or our property, so the latter right is no less properly asserted, in the natural state, by forcibly seizing what is ours or due to us from someone who is refusing to offer it of his own accord. Therefore in the former case a violent defense of one’s own right, in the latter case a violent prosecution of it (always assuming appropriate circumstances), is a duty which a man owes to himself. We should add a few points about this.

It is clear in the first place that as a violent defense of right in the civil state is restricted to rather narrow limits, so a violent prosecution of it is utterly forbidden to individual citizens, as plainly repugnant to nature and the end of civil society. It is appropriate on a regular basis only in the natural state in which, when just cause requires, it is to be exercised with the same force against persons, as far as they oppose the satisfaction of our right, as Pufendorf rightly teaches that the natural state permits in its defense. Moreover, since in this case, something of ours or something which is owed to us and not freely tendered, is presumed to give grounds for war, we not only rightly take possession of our own property, if it can be done, but also appropriate something that belongs to another person; if a particular object is owed to us, we seize that; if the debt is nonspecific, we seize as much as is owed. For want of these things, we can appropriate any property belonging to the enemy in compensation for the debt. Further, since neither defensive nor offensive war can be waged without expense and multiple loss, we rightly demand from an unjust enemy restitution for this, and rightly claim in compensation for them whatever is taken from him. However, all these things ought to be understood as due without detriment to the right of the innocent. Beyond these limits (although it cannot be denied that infinite license is permitted against an enemy who perseveres in wrongdoing, of devastating his property, and of taking it away, especially if it may be useful in war), we have no right to acquire anything, however just our cause in fighting, and to retain the advantage we derive from it, after the enemy has agreed to peace terms (and we may understand from this the nature of the peace terms). See Locke, Second Treatise of Government, chapter 16. However we may retain some of the property of an enemy in our custody, as a means to guarantee against the launching of similar attacks in the future, but it must be in such a way that the fruits and profits of the property, beyond what is spent on its custody, are preserved for the owner, as long as he keeps the peace. From the point of view of bare natural right, the situation is the same, whether it is two men living in natural liberty who are in conflict with each other or two states.⁷ [I.5.17.i]

The rights of extreme necessity

[Pufendorf has explained that “the case of necessity is not included in the general scope of the law.” Carmichael comments:]

But the two general laws of worshipping God and of promoting the interests of the human race admit of no exception; they are themselves the foundation of such exception as is to be admitted in the more particular laws. This is not to be taken to mean that there is no necessity which might rightly draw us away from any particular act of divine worship, especially external worship, which otherwise would have to be performed, but that one may not in any case undertake an act which is contrary to worship, an act, that is, which would betray contempt or hatred of God. Such acts are denial of God, blasphemy, idolatrous worship, and (here the distinguished Titius vainly and wrongly resists) the giving of a promissory oath without the intention to put oneself under an obligation.⁸ I add that the positive obligation of the precept about worshiping God is so far universal that man may not in any case completely abandon direct worship of God, or suspend it for so long that he ceases to have Him habitually before his eyes, or even intermit a particular act of external worship when the intermission would be taken as a denial of God (cf. Daniel 6.10). It is quite evident that neither the precept on promoting the common interests of the human race nor the two directly subordinate to it on every man’s seeking his own innocent advantage and on furthering sociability, as we have explained them above,⁹ can admit any exception of necessity. Hence we reject the conflict between self-love and sociability which Titius so frequently teaches.¹⁰ For all the cases in which that distinguished man finds this conflict are to be explained merely on the basis of the law of sociability. For according to the variety of circumstances, this law assigns more to an individual’s own benefit in one case, more to that of others in another, and thus determines which particular precepts admit the exception of necessity, and in what cases. [I.5.18.i]

One should say rather with Grotius (who treats this whole matter at II.II.6–10) that an extreme necessity which can be met in no other way, makes a perfect right; i.e., in this case it revives, for this purpose, the right of primitive community. However this is not in virtue of an agreement (as Grotius teaches, in conformity with his false hypothesis about the origin of ownership, on which see below),¹¹ but because of the very nature of the case and the manifest interest of human society. The arguments brought against this by our author at Of the Law of Nature and Nations, II.VI.6, are excessively weak.¹² [I.5.23.iii]

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]

Natural Rights and Agreements ¹

[Pufendorf distinguished between absolute duties which every man owes to every man (not to harm others, to recognize others as equals, and to be useful to others, so far as it is convenient) and hypothetical duties, which presuppose particular conditions or arrangements. Carmichael comments:]

Our author’s method relies heavily on the distinction [between “absolute” and “hypothetical” duties]. But he does not explain it with sufficient clarity nor apply it at all skillfully. And since there is the same variety of obligations or duties as of rights to which they correspond, in place of this distinction one may substitute the analysis which we give in the next note [I.9.1.i] and again in the appendix annexed to this treatise.² [I.6.1.i]

Kinds and creation of rights

To achieve a clearer conception of the nature of agreements, we must argue some central points on a broader basis. In the first place we must recognize that perfect rights which belong or may belong to individual men, are either natural or adventitious, depending on the foundations on which they rest. Nature herself has endowed each man with natural rights; adventitious rights arise from some human action or other event. Among natural rights are the right of life, the right of physical integrity, the right of chastity, and the right of simple reputation; I mean the right to have all these things. I add the liberty, or power, of ordering one’s actions as one pleases within the broad limits of the common divine laws, as well as the closely related ability to use in common things which are by nature positively common, as also of acquiring any other adventitious rights by appropriate means. All of these are sanctioned by the general precept of natural law, by which every man is forbidden from violating any of these rights in another, that is, of attacking without a special foundation of right any of the good things given above which belong to someone else.

Adventitious rights are either real or personal. Real rights are concerned with having, possessing, using, etc., some thing (rem); personal rights, with obtaining some thing or service from another person. To real rights, equally as to natural rights, there corresponds from the other side an unlimited obligation not to disturb the owners of these rights in the exercise of them. And to personal rights there correspond limited obligations to render to individuals those things or services which they have a right to require of us.

Both real and personal rights are created, transferred, and abolished in various ways. Among the many ways by which personal rights are created or abolished, and by which rights of both kinds are transferred from one man to another, one stands out as particularly prominent. This is mutual consent on the part of the person by whom a right is transferred and on the part of the person by whom it is acquired, both being signified by appropriate signs. I say is transferred, because the actual creation and abolition of a personal right lies in a kind of transfer.

For a perfect personal right (which is the only thing that we are speaking of here)³ is simply a certain particle of a man’s natural liberty which is transferred to another man by some act or event, and takes on the character in this man of a personal right valid against the other, by force of which he may require him to do or not to do anything which, in his judgment, it is in his power to do or not to do. That same right, when it returns to its natural subject and is consolidated with the rest of his natural right, loses its character as a personal right and recovers the name of natural liberty. Thus personal rights are said to be created by those actions by which men begin to be obligated in a particular way by the transfer of some particle of their natural liberty to others; and are equally correctly said to be abolished by the opposite actions, by which men cease to be obligated in that way, when the particle of liberty which they had alienated is restored to them.

We therefore had good reason to say that the creation and abolition of personal rights as such, no less than their transmission in the same kind (as also in the case of real rights), lies in a form of transfer. And, apart from some modes of transfer which are irrelevant to the present subject, every transfer is very naturally initiated, as we have said, by mutual consent, by a declaration of appropriate signs on the part of the transferor and of the recipient of the right.

This mutual act seems to take four different forms, depending on the type of right which is being transferred or its circumstances. In the case of real rights, it is always one and the same, carrying in itself from one subject to another the mere transmission of the rights which relate to its immediate object on both sides (see however what we say below at pp. 101–2).⁴ In the case of personal rights, it may produce three possible effects: (1) a right which was previously contained in the natural liberty of the transferor has been transferred to another man and now belongs to him as a personal right against the first party; in this case a new personal right and corresponding obligation are created for the first time. Or, (2) a personal right which previously belonged to the transferor against a third party has been transferred to someone else and now belongs to him against the same third party; here we see the transfer of a personal right of that particular kind. Or, (3) a personal right which previously belonged to the transferor against the recipient is transferred, or rather restored, to him and consolidated with his natural liberty; and in this case the personal right, as such, and the corresponding obligation are extinguished.

Each of these acts can be performed either unilaterally, with the effect that a right is transferred from one party and merely acquired by the other, or reciprocally, with the effect that a right is transferred by both parties and received by both of them against each other, and the transfer would not be understood to be fully and validly effected without the other. Thus from these various combinations of acts of the same or of different kinds, arise several kinds of reciprocal acts; some of these have specific names given them in law and popular usage, while others have not.

As for the term pactum, or “agreement,” this stands for a variety of ideas which do not all have the same extension. The definition of pactum given by Ulpian, Digest, II.14.1.2⁵ is the concurrence of two or more persons in the same intent; Ulpian also appends to the same law (sec. 3) that the explanation of the term conventio is that men from different motions of the mind consent to one thing, i.e., arrive at one opinion. If we look at the proper meanings of the words, both these definitions seem to apply to all the types of mutual acts we have just enumerated. But we admit that the commonest usage is to apply the term pactum, or “agreement,” almost exclusively to acts which are obligatory on at least one side, i.e., acts by which a new personal right is given, as we explained above; and that is how our author seems to understand it.

Titius defines pactum, or “agreement,” as something done by the consent of two or more, given for the purpose of licitly creating or abolishing an obligation; and therefore includes under the term “agreement” not only acts consisting in the mutual consent by which personal rights are created, but also those by which they are abolished.⁶ But I do not think that we apply the word “agreements” to acts by which personal rights and corresponding obligations are abolished, more than to acts by which rights, whether real or personal, are transmitted from one person to another. It is irrelevant to our purpose as being a matter merely of arbitrary law, that the Roman jurisconsults and their interpreters used this term almost exclusively of acts which create by themselves only a natural and not also a civil obligation unless confirmed by a civil law, and on this ground distinguished them from contracts. [I.9.1.i]

Promises and agreements; two senses of agreement

We have just said that in his first paragraph⁷ our author understands by the term pactum, or “agreement,” an act consisting in mutual consent which is obligatory on at least one side. Now in this paragraph⁸ he restricts the word to one species within that genus, namely, that which is obligatory on both sides. However it should be noted, that if by the division here proposed a distinction is made in the case of an act obligatory by mutual consent, between one which creates obligation on one side only and one which creates obligation on both sides, the former is not well named a gratuitous promise. For there are acts which are obligatory on one party only, and which nevertheless, can by no means be called gratuitous promises, since they include from the other party, either some transmission of right, as in loan for consumption (mutuum) (where the term implies that the receiving party in this transaction is obligating himself to the giver, because the latter is at the same time transferring to him the ownership of the money given by mutuum), or the cession or remission of a right which was previously valid against the party creating the obligation, as is often the case in transactions.⁹ However if you are willing to understand by the term pactum, or “agreement,” in its narrower sense, a mutual act by which an obligation is contracted by at least one party (or, which is the same thing, by which a man transfers a personal right to be valid against himself), and in return a right of some kind is transferred by the other party, then pactum, or “agreement,” in its broader sense is rightly divided into gratuitous promise and pactum in the special sense. [I.9.5.i]

[Grotius distinguished agreements based upon mere declarations of intent and the necessity of keeping faith from perfect agreements, where there is a clear sign that a right is to be conferred (Grotius, Rights of War and Peace, II.XI, p. 281 ff). Pufendorf applied this distinction specifically to promising (Pufendorf, Of the Law of Nature and Nations, III.V.6, p. 269; Pufendorf, On the Duty of Man and Citizen, I.9.6, pp. 69–70). Carmichael comments:]

The authors apply this distinction of perfect and imperfect to promises rather than to agreements in general, perhaps because every reciprocal agreement is perfect in the state of nature. I say, in the state of nature; for in civil society, only those agreements and promises which may be enforced in the courts by an action taken under civil law are considered perfect. And just as a perfect promise confers a perfect right, I do not see why an imperfect right should not follow from an imperfect obligation. [I.9.6.i and ii]

“Error” in promises and agreements

[In Roman law promises and agreements are frustrated by various forms of error, fraud, or force which occur in the making of them. In all these categories Carmichael allows fewer circumstances to void an agreement than Pufendorf. Pufendorf’s first category is: “When in promising I have assumed something as a condition, without regard to which I would not have made the promise, there will naturally be no force in the promising.” Carmichael comments as follows:]

This is to be allowed only in the following sense: If I have either expressly declared this assumption on my part as a condition of the promise, or if I thought in good faith that it was understood by the promisee from the nature of the transaction. For my own silent thoughts which I cannot reasonably believe will be understood by the party I am addressing, do not alter the sense of what I say, nor consequently its moral effect. [I.9.12.i]

[Secondly, Pufendorf says: “If I have been impelled by error to make an agreement or a contract and I discover it when the matter is whole and nothing has yet been performed, it would be perfectly fair that the privilege of changing my mind be allowed to me.” Carmichael comments:]

Yet this privilege cannot be claimed by perfect right, unless the error concerns something which the person who was in error at least thought was assumed as a condition on both sides. And in reciprocal agreements, an event which is not explicitly put as a condition is not easily understood to be such, unless it is either affirmed in the article itself actually to exist by the other party to the transaction, or it is such that without the condition which it is agreed the promisor cannot perform, it would be manifestly impossible or absurd to fulfill the promise, or finally unless it concerns the actual object or matter which is the subject of the agreement, its valuable qualities or lack of them.

But if he who has made an error in an agreement says that he tacitly assumed that the event about which he was mistaken was understood on both sides to be a condition of the agreement, despite the fact that the other party did not and reasonably could not understand that the agreement was limited by that condition, the claim of error is still not completely excluded even in this case, provided that the claimant proves by proper evidence that he really understood the situation the way he says he did (for even in natural liberty the same judgment holds about what does not appear and what does not exist, as far as the external forum is concerned), and provided that he is prepared to reimburse any loss the other party may have incurred, in accordance with what we shall argue below at pp. 84–85. [I.9.12.ii]

[Pufendorf gives as his third form of “error”: “When a mistake has occurred concerning the actual object of the agreement, the agreement is defective, not so much because of the mistake, but because it has failed to satisfy the conditions of an agreement.” Carmichael has two notes on this:]

That is, as may be understood from what has been said before, that one of the parties to the agreement not only supposed that the object was of a different kind, or of different valuable qualities, than is in fact the case, but thought in good faith that this supposition of his and the will to make a contract on such an object was understood on both sides. [I.9.12.iii]

The celebrated Titius correctly observes here that the author was not right to make the distinction he does make, since the reason why this kind of agreement does not satisfy the terms of an agreement is that it is not being made about the proposed object as it really is.¹⁰ [I.9.12.iv]

[Carmichael concludes:]

The nature of the object of the agreement and its valuable qualities or lack of them, which may be thought to have had some weight in determining either of the contracting parties to make a contract which he would not otherwise have made, are naturally understood to belong to the essence of the actual contract. Hence an error committed in any of these matters, by natural law, vitiates the contract as long as no performance has been made by either party; if discovered after the contract has been wholly or in part fulfilled, it gives a right to the injured party to withdraw from it, and to require that any performance be restored on both sides. But if the error in question concerns only the external value of the object or other qualities without regard for which the party in error would clearly have made the contract though with different conditions, it is at the discretion of the other party, provided he is clear of fraud, either to release him from the contract or to make up the value to him.

Here we must note that in every case in which a contract is voided for error, if fault on the part of one party to the agreement (whether the party making the claim for error or the other party) has given cause for error concerning either the object itself or the circumstance on which the claim is based or concerning the deception of one party by the other, and if the other party will suffer loss as a result of the voiding of the contract, then the former is obliged to compensate the latter for his loss; he must ensure that he is in no worse situation than if he had not entered into the agreement. And if one of the parties to the agreement recognizes the other’s error with regard to the object or its qualities, and fraudulently claims that the other had accepted it, he ought also to pay what the other lost thereby, i.e., the benefit which the deceived party would have got if the agreement had been fulfilled, in accordance with his expectation and intention; for this is what he seems to have committed himself to by his consent. These positions are not far from what is laid down in Roman law on these cases, provided we remember that the distinction between things which void an action in their own right and those which give rise to a claim or an action by which it may be quashed, are a subtlety of the courts which has no place in the simplicity of natural law. [I.9.12.v]

Force and agreements

[Pufendorf argues that in general agreements made under compulsion are invalid. Once again, as in the case of promises or agreements made in error, Carmichael takes a more restrictive line.]

Our opinion on this much discussed point will be clear from the three following propositions.

1. Agreements extorted by unjustified force give no right to the extortionist which he may legitimately use against anyone; nor by mere natural law do they bind the conscience of those who succeed to the position of the person who was subjected to force, to justify them in refusing performance, or if it has already been made, in demanding compensation for damage inflicted by unjust force. These points we grant to the considerations adduced by the author.

2. Nevertheless, the promisor is bound in conscience, on the ground of truthfulness and good faith, if he has promised anything that may be lawfully offered and therefore lawfully promised, in order to preserve life or avert serious loss (even though the most unjustified force by the other party imposed on him the need to make the promise). For he seems to have promised that he will not make use of the counterclaim of force and fear, even though it is quite evident, I suppose, in the very nature of the action.

3. Grotius aptly observes (II.XVII.19) that it seems to have been accepted by the consent of nations that the claim of force and fear cannot be brought against agreements extorted by the success of declared wars or by fear of them, whether by the parties to a treaty or by their successors, lest public disputes should never have an end. To declared wars however I think that one should add (for this purpose alone) all other actions done publicly, deliberately, and as it were, in the eyes of the world, and which are ended by agreements which have not been suddenly or secretly extorted. The purpose is that the conditions of peace established by these agreements, whether between princes and subjects or between different factions of citizens after a civil war, should be held sacred and inviolable. If the thing were otherwise, it is not clear that there would be any use in treaties restoring peace, or that old disputes, about which wars had been fought in the past, would not always be open to further conflict. For individuals enter into agreements to end disputes on the basis which the fortune of war has given to their side.¹¹ [I.9.15.ii]

[Carmichael later adds that, while such a promise is valid in itself, the addition of an oath to it provides a further ground for respecting it.]¹²

We said in the previous note that the extortion of a promise by unjustified force does not prevent the promisor from being bound in conscience to perform it, if the thing promised may be legitimately performed. If it were not so, it is not at all clear how in good faith one could buy off with an onerous promise a threat of greater evil leveled unjustly at oneself by another person. What is certain is that it would be horribly impious to try to give such a promise the sanction of an oath, believing that it would still be invalid even with this sanction. Grotius indeed contends that a promise extorted by unjust fear is invalid by itself, but acquires force from the addition of an oath, and adds an inappropriate argument which our author refutes at Of the Law of Nature and Nations, IV.II.8. [I.11.6.3]

[Consideration of error, fraud, and force in the formation of agreements leads to a discussion of truthfulness and falsehood in the use of language in general.]

Language as signs

To understand this whole matter clearly one must recollect from logic that two kinds of signs need to be distinguished. One kind, by reason of nature or convention, signifies something without any regard to the supposed intention of the sign-user as to what is to be signified. The other kind of sign signifies precisely because it is assumed to be employed by a rational agent of his own accord to signify his thoughts to another person. And this is achieved either by some prior explicit convention about their significance, or (in the absence of an explicit convention about their use) because of some accompanying tacit convention about using the signs employed in the sense which either their nature or accepted usage indicates. This distinction by no means coincides with the commonly accepted distinction between natural and arbitrary signs. For natural and arbitrary signs are found equally in both of the categories we propose. It is however in fact the same as Grotius gives at Rights of War and Peace, III.I.8, n. 2, and following him our author at Of the Law of Nature and Nations, IV.I.12, and the use of this distinction in this matter is obvious. For the rule [of nondeception] should be understood of signs not of the former kind but of the latter (among which are words and other signs which perform the same function). Truthfulness consists in making these true as falsehood consists in making them false. [I.10.1.i]

Truthfulness

[Pufendorf says that the use of language requires that “users of any given language must employ the same words for the same objects following the usage of that language.” Carmichael comments:]

Truthfulness lies in the fulfilment of this obligation and falsehood in its violation, provided that in the phrase employing words in a certain sense you also include, to make true speech according to that sense of the words, where true means conforming to the view of the speaker. In eliminating the obligation contained in this paragraph, the distinguished Titius seems to be making a highly unfortunate attempt to remove all distinction between truth-speaking and falsehood and to expel truthfulness from the catalogue of the virtues. But one may still ask, whence arises this virtue? And if it derives from convention, when and how do men enter into that convention? It would not be absurd to say that this obligation quite evidently arises from the very nature of the thing and from the obvious indispensability of the duty here prescribed for effecting the use of speech, and consequently for cultivating social life among men. I fully agree that a convention is not to be denied in this question: the only difficulty about it is, when and by what means the convention was entered into. For it can scarcely be maintained that the convention is entered into by individuals by some one single act, which establishes the norm for all future acts of speaking by everybody. One must rather say that each man, in addressing another person, particularly when he attempts to narrate something to him, makes a tacit agreement with him to use words in the sense which he thinks will be understood by him with the help of reason. He has to accept that the sense which normally goes with such words in similar cases will be the one understood (if it has not been otherwise defined by any special convention). The same is to be said of any other signs which perform the same function. The only exception is signs which are suited by their nature to signify some particular thing, where no other intervening use or express agreement has determined their signification otherwise; in their case, the sense to be reasonably understood, and for the preservation of which a tacit convention is made, is the sense which the nature of each sign suggests. It is agreed therefore that this obligation of which we are speaking is inviolable, and cannot be destroyed by any case or event, since a man would have to make a new contract every time he opened his mouth to speak. If this obligation were not assumed, the use of speech, particularly descriptive speech, would be eliminated from human life. It would be useless to tell anybody anything, and equally absurd to listen to anyone telling you anything. [I.10.2.i]

The limits of prevarication

[Pufendorf says that “I may shape what I say to express something other than what I have in mind” under certain conditions. Carmichael comments:]

Here the author begins to desert the sound principles which he had established earlier.¹³ One must be very careful about exceptions of this kind. For although people do not in general have the right to learn our thoughts on any matter whatever, yet a person does have the right not to be deceived by speech or by other signs which he may justifiably believe are being used to express those thoughts. That is, we should not use signs which we judge that the other person will justifiably interpret as intended to signify something to him which is not true, or at least which we do not think to be true. As was said above, we have bound ourselves by a tacit convention to make the signs which we use, on any reasonable interpretation, consonant with our thoughts.¹⁴ [I.10.5.i]

[Pufendorf says: “In these cases, therefore, we may make use of a dissembling and specious language. …” Carmichael comments on this principle and some of its applications:]

I am tempted to say that the author uses such language here. In any case if he means speech which by the most reasonable interpretation signifies something different from the sentiment of the speaker, we must apply the well-known and correct rule, Do not do evil that good may result, especially since the universal loss which arises from the weakening of good faith among men, that is, from the relaxation of the common bond of human society, cannot be made up for by any private gain. [I.10.6.i]

In educating children one must often use very crude metaphors. But the effect of speaking untruths is nowhere more pernicious than here. The result often is that children not only learn to disbelieve true lessons, but also acquire a wicked habit of lying. In this matter, they think themselves justified by the authority and example of their teachers. [I.10.9.i]

Nor should we allow that we may tell lies to an enemy. The author himself acknowledges at On the Duty of Man and Citizen, II.16.5, that an enemy is not to be deceived by fraudulent promises or agreements. And we showed above (pp. 87–88) that a sort of tacit convention about using signs properly, appropriate to the occasion and the subject matter, accompanies every use of speech. He therefore who purports to say something to an enemy in all seriousness, while the enemy in his turn listens to him in the belief that he is telling him something in all seriousness, by that very fact contracts as it were the same obligation anew, despite the situation of enmity. It is quite wrong to class false stories with stratagems, since our author himself, following Grotius, specifically recognizes that in the former case a convention takes place, in the latter not. On both, see the references given above on p. 87. [I.10.9.ii]