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

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