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

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]

CHAPTER 9

       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