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

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]

CHAPTER 5

       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

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