Natural Rights on the Threshold of the Scottish Enlightenment. Gershom Carmichael

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]

CHAPTER 4

       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