Burlamaqui: The Principles of Natural Law: Part I Chap. IX

CHAP. IX.

Of the foundation of sovereignty, or the right of commanding.

1. INQUIRING here into the foundation of the right of command we consider the thing only in a general and metaphysical manner. The question is to know the foundation of a neccessary sovereignty and dependence; that is, such, as is founded on the very nature of things, and is a natural consequence of the constitution of those beings, to whom it is attributed. Let us therefore wave whatever relates to a particular species of sovereignty, in order to ascend to the general ideas, from which the first principles are derived. But, as general principles, when just and well founded, are easily applied to particular cases, it follows therefore, that the first foundation of sovereignty, or the reasons, on which it is established, ought to be laid in such a manner, as to be easily applicable to the several species, that fall within our knowledge. By this mean, as we observed before, we can be fully satisfied with regard to the justness of the principles, or distinguish, whether they are defective.

II. Another general and preliminary remark is, that there can be neither sovereignty nor natural and necessary dependence between beings, which by their nature, faculties, and state, have so perfect an equality, that nothing can be attributed to one, which is not alike applicable to the other. In fact, in such a supposition, there could be no reason, why one should arrogate an authority over the rest, and subject them to a state of dependence, of which the latter could not equally avail themselves against the former. But, as this reduces the thing to an absurdity, it follows, that such an equality between several beings excludes all subordination, all empire and necessary dependence of one on the other; just as the equality of two weights keeps the scale in a perfect equilibrium. There must be therefore in the very nature of those beings, who are supposed to be subordinate one to the other, an essential difference of qualities, on which the relation of superior and inferior may be founded. But the sentiments of writers are divided in the determination of those qualities.

III. 1. Some pretend, that the sole superiority of strength, or, as they express it, an irresistible power is the true and first foundation of the right of imposing an obligation, and prescribing laws. "This superiority of power gives, according to them, a right of reigning, by the impossibility, in which it places others, of resisting him, who has so great an advantage over them."^[1]

2. Others there are, who derive the origin and foundation of sovereignty from the eminency or superior excellence of nature; "which not only renders a being independent of all those, who are of an inferior nature; but moreover causes the latter to be regarded, as made for the former. And of this, say they, we have a proof in the very constitution of man, where the soul governs, as being the noblest part; and it is likewise on this foundation, that the empire of man over brutes is grounded."^[2]

3. A third opinion, which deserves also our notice, is that of Barbeyrac.^[3] According to this judicious author, "there is, properly speaking, only one general foundation of obligation, to which all others may be reduced, and that is our natural dependence on God, inasmuch as he has given us being, and has consequently a right to require we should apply our faculties to the use, for which he has manifestly designed them. An artist, he continues, as such, is master of his own work, and can dispose of it as he pleases. Were a sculpture capable of making animated statues, this alone would entitle him to insist, that the marble, shaped by his own hands, and endowed by him with understanding, should be subject to his will. But God is the author of the matter and form of the parts, of which our being is composed, and he has given them all the faculties, with which they are invested. To these faculties therefore he has a right to prescribe what limits he pleases, and to require, that men use them in such or such a manner," &c.

IV. Such are the principal systems, on the origin and foundation of sovereignty and dependence. Let us examine them thoroughly, and, in order to pass a right judgment, let us take care not to forget the distinction of physical and moral necessity, nor the primitive notions of right and obligation, such as have been above explained.^[4]

1. This being premised, I affirm, that those, who found the right of prescribing laws on the sole superiority of strength, or on an irresistible power, establish an insufficient principle, and which, rigorously considered, is absolutely false. In fact it does not follow, that because I am incapable of resisting a person, he has therefore a right to command me, that is, that I am bound to submit to him by virtue of a principle of obligation, and to acknowledge his will, as the universal rule of my conduct. Right being nothing else but that, which reason approves, it is this approbation only, which reason gives to him, who commands, that is capable of founding his right, and, by necessary consequence, produces that inward sense, which we distinguish by the name of Obligation, and inclines us to a spontaneous submission. Every obligation therefore supposes some particular reasons, that influence the conscience and bend the will, insomuch that, pursuant to the light of our own reason, we should think it criminal to resist, were it even in our power, and should conclude, that we have therefore no right to do it. Now a person, who alleges no other reason, but a superiority of force, does not propose a motive sufficient to oblige the will. For instance, the power, which may chance to reside in a malignant being, neither invests him with any right to command, nor imposes any obligation on us to obey; because this is evidently repugnant to the very idea of right and obligation. On the contrary, the first counsel, which reason gives us in regard to a malignant power, is to resist and, if possible, to destroy him. Now, if we have a right to resist, this right is consistent with the obligation of obeying, which is evidently thereby excluded. True it is, that, if we clearly see that all our efforts will be useless, and that our resistance must only subject us to a greater evil, we should choose to submit, though with reluctance, for a while, rather than expose ourselves to the attacks and violence of a malignant power. But in this case we should be constrained, though not under an obligation. We endure, in spite of us, the effects of a superior force, and, whilst we make an external submission, we inwardly feel our nature rise and protest against it. This leaves us always a full right to attempt all sorts of ways to shake off the unjust and oppressive yoke. There is therefore, properly speaking, no obligation in that case; now the default of obligation implies the default of right.^[5] We have omitted making mention here of the dangerous consequences of this system; it is sufficient at present to have refuted it by principles; and perhaps we shall have occasion to take notice of these consequences another time.

V. The other two opinions have something in them, that is plausible and even true, yet they do not seem to me intirely sufficient. The principles they establish are too vague, and have need to be reduced to a more determinate point.

2. And indeed I do not see, that the sole excellency of nature is sufficient to found a right of sovereignty. I will acknowledge, if you please, this excellency, and agree to it as a truth, that I am well convinced of. This is the whole effect, that must naturally arise from this hypothesis. But here I make a halt; and the knowledge I have of the excellency of a superior being does not alone afford me a motive sufficient to subject myself to him, and to induce me to abandon my own will, in order to take his for my rule. So long as I am confined to these general heads, and am informed of nothing more, I do not feel myself inclined by an internal motion to submit, and, without any reproach of conscience, I may sincerely judge, that the intelligent principle within me is sufficient to direct my conduct. So far we confine ourselves to mere speculation. But, if you should attempt to require any thing more of me, the question would then be reduced to this point; how and in what manner does this being, whom you suppose to surpass me in excellence, intend to conduct himself with regard to me; and by what effects will this superiority or excellence be displayed? Is he willing to do me good, or harm, or is he, in respect to me, in a state of indifference? To these interrogations there must be absolutely some answer given; and according to the side, that is chosen, I shall agree perhaps, that this being has a right to command me, and that I am under an obligation of obeying. But these reflections are, if I am not mistaken, a demonstrative proof, that it is not sufficient to alledge merely and simply the excellence of a superior being, in order to establish the foundation of sovereignty.

VI. Perhaps there is something more exact in the third hypothesis. "God, say they, is the Creator of man; it is from him he has received and holds his life, his reason, and all his faculties; he is therefore master of his work, and can of course prescribe what rules he pleases. Hence our dependence, hence the absolute empire of God over us naturally arises, and this is the very foundation of all authority."

The sum of what is here alledged to found the empire of God over man is reduced to his supreme power. But does it follow from this only, and by an immediate and necessary consequence, that he has a right to prescribe laws to us? That is the question. The sovereign power of God enables him to dispose of man, as he has a mind, to require of him whatever he pleases, and to lay him under an absolute necessity of complying; for the creature cannot resist the Creator; and by its nature and state it finds itself in so absolute a dependence, that the Creator, may, if he please, even annihilate and destroy it. This, we own, is certain; and yet it does not seem sufficient to establish the right of the Creator. There is something more than this requisite to form a moral quality of a simple power, and to convert it into right.^[6] In a word, it is necessary, as we have more than once observed, that the power be such, as will be approved by reason; to the end, that man may submit to it willingly, and by that inward sense, which produces obligation.

Here I beg leave to make a supposition, that will set the thing in a much clearer light. Had the Creator given existence to the creature only to render it unhappy, the relation of Creator and creature would still subsist, and yet we could not possibly conceive, in this supposition, either right or obligation. The irresistible power of the Creator might indeed constrain the creature; but this constraint would never form a reasonable obligation, a moral tie; because an obligation of this nature always supposes the concurrence of the will, and an approbation or an acquiescence on the part of man, from which voluntary submission arises. Now this acquiescence could never be given to a being, that would exert his supreme power only to oppress his creature, and render it unhappy.

The quality therefore of Creator is not alone and of itself sufficient to establish the right of command, and the obligation of obeying.

VII. But if to the idea of the Creator we join (which Barbeyrac probably supposed though he has not distinctly expressed it) the idea of being perfectly wise and sovereignly good, who has no desire of exercising his power, but for the good and advantage of his creatures; then we have every thing necessary to found a legitimate authority.

Let us only consult ourselves, and suppose that we not only derive our existence, life, and all our faculties, from a Being infinitely superior to us in power; but moreover, that we are perfectly convinced, that this Being, no less wise than powerful, had no other aim in creating us, than to render us happy, and that with this view he is willing to subject us to laws; certain it is, that under these circumstances, we could not avoid approving of such a power, and the exercise thereof in respect to us. Now this approbation is acknowledging the right of the superior; and consequently the fist counsel, that reason gives us, is to resign ourselves to the direction of such a master, to subject ourselves to him, and to conform all our actions to what we know in relation to his will. And why so? Because it is evident to us, from the very nature of things that this is the surest and shortest way to arrive at happiness, the end, to which all mankind aspire. And from the manner we are formed, this knowledge will be necessarily attended with the concurrence of our will, with our acquiescence, and submission; insomuch that if we should act contrary to those principles, and any misfortune should afterwards befall us, we could not avoid condemning ourselves, and acknowledging, that we have justly drawn upon ourselves the evil we suffer. Now this is what constitutes the true character of obligation, properly so called.

VIII. If we have therefore a mind to embrace and take in the whole, in order to form a complete definition, we must say, that the right of sovereignty arises from superiority of power, accompanied with wisdom and goodness.

I say, in the first place, a superiority of power, because an equality of power, as we have observed in the very beginning, excludes all empire, all natural and necessary subordination; and besides sovereignty and command would become useless and of no manner of effect, were they not supported by a sufficient power. What would it avail a person to be a sovereign, unless he were possessed of effectual methods to enforce his orders and make himself obeyed?

But this is not yet sufficient; wherefore I say, in the second place, that this power ought to be wise and benevolent; wise to know and to choose the properest means to make us happy; and benevolent, to be generally inclinable to use those means, that tend to promote our felicity.

In order to be convinced of this, it will be sufficient to remark three cases, which are the only ones, that can be here supposed. Either he is, with respect to us, an indifferent power, that is, a power willing to do us neither good nor harm, as no ways interesting himself in what concerns us; or he is a malignant power; or, in fine, he is a propitious and benevolent power.

In the first case our question cannot take place. How superior soever a being is in regard to me, so long as he does not concern himself about me, but leaves me intirely to myself;

I remain in as complete a liberty, in respect to him, as if he were not known to me, or as if he did not at all exist.^[7] Wherefore there is no authority on his side, nor obligation on mine.

But if we suppose a malignant power; reason, far from approving, revolts against him, as against an enemy so much the more dangerous, as he is invested with great power. Man cannot acknowledge such a power has a right; on the contrary, he finds himself authorized to leave no measure untried to get rid of to formidable a master, in order to be sheltered from the evils, with which he might otherwise be unjustly afflicted.

But let us suppose a being equally wise and beneficent. Man, instead of being able to refuse him his approbation, will feel himself inwardly and naturally inclined to submit and acquiesce intirely in the will of such a being, who is possessed of all the qualities necessary to conduct him to his ultimate end. By his power he is perfectly able to procure the good of those, who are subject to him, and to remove whatever may possibly injure them. By his wisdom he is thoroughly acquainted with the nature and constitution of those, on whom he imposes laws; and knows their faculties and strength, and in what their real interests consist. He cannot therefore be mistaken, either in the designs, he proposes for their benefit, or in the means, he employs, in order to attain them. In fine, goodness inclines such a sovereign to be really willing to render his subjects happy, and constantly to direct to this end the operations of his wisdom and power. Thus the assemblage of these qualities, by uniting in the very highest degree all, that is capable of deserving the approbation of reason, comprises whatsoever can determine man, and lay him under an internal as well, as external obligation of submission and obedience. Here therefore lies the true foundation of the right of sovereignty.

IX. In order to bind and subject free and rational creatures, there is no necessity, properly speaking, for more than an empire or authority, whose wisdom and lenity would forcibly engage the approbation of reason, independent of the motives, excited by the apprehension of power. But, as it easily happens, from the manner, that men are formed, that either through levity and neglect, or passion and malice, they are not so much struck, as they ought, with the wisdom of the Legislator, and with the excellency of his laws; it was therefore proper there should be an efficacious motive, such as the apprehension of punishment, in order to have a stronger influence over the will. For which reason it is necessary, that the sovereign should be armed with power and force, to be better able to maintain his authority. Let us not separate therefore these different qualities, which form, by their concurrence, the right of the sovereign. As power alone, unaccompanied with benevolence, cannot constitute any right; so benevolence, destitute of power and wisdom, is likewise insufficient for this effect. For, from this only, that a person wishes another well, it does not follow, that he is his master; neither are a few particular acts of benevolence suflicient for that purpose. A benefit requires no more, than gratitude and acknowledgment; for, in order to testify our gratitude, it is not necessary we should subject ourselves to the power of our benefactor. But let us join these ideas, and suppose, at one and the same time a sovereign power, on which every one actually and really depends; a sovereign wisdom, that directs this power; and a supreme goodness, by which it is animated. What can we desire more to establish, on the one side, the most eminent authority, and, on the other, the greatest subordination? We are compelled then, as it were, by our own reason, which will not so much as suffer us to deny, that such a superior is invested with a true right to command, and that we are under a real obligation to obey.^[8]

X. The notions of sovereign and sovereignty being once settled, it is easy to fix those of subjection and dependence.

Subjects therefore are persons, who are under an obligation of obeying. And as it is power, wisdom, and benevolence, that constitute sovereignty; we must suppose, on the contrary, in subjects, the weakness and wants, from which dependence arises.

It is therefore right in Puffendorf to remark,^[9] that what renders man susceptible of an obligation, produced by an external principle, is that he naturally depends on a superior, and that moreover, as a free and intelligent being, he is capable of knowing the rules given him, and of choosing to conform his actions to them. But these are rather conditions necessarily supposed and of themselves understood, than the exact and immediate causes of subjection. More important it is to observe, that as the power of obliging a rational creature is founded on the ability and will of making him happy, if he obeys; unhappy, if he disobeys; this supposes, that this creature is capable of good and evil, sensible of pleasure and pain, and besides, that his state of happiness or misery may be either increased or diminished. Otherwise, he might be forced indeed, by a superior power, to act after a certain manner, but he could not be properly obliged.

XI. Such is the true foundation of sovereignty and dependence; a foundation, that might be still better established by applying these general principles to the particular species of known sovereignty or empire, such as that of God over man, that of a prince over his subjects, and the power of fathers over their children. We should be convinced thereby, that all these species of authority are originally founded on the principles above established; which would serve for a new proof of the truth of those principles.^[10] But it is sufficient to have hinted here in general at this remark; the particulars we reserve for another place.

An authority, established on such a foundation, and which comprises whatever can be imagined most efficacious and capable of binding man, and of inclining him to be steadily directed by certain rules of conduct, undoubtedly forms the completest and strongest obligation. For there is no obligation more perfect than that, which is produced by the strongest motives to determine the will, and the most able, by their preponderancy, to prevail over all other contrary reasons.^[11] Now every thing concurs here to this effect; the nature of the rules prescribed by the sovereign, which of themselves are the fittest to promote our perfection and felicity, the power and authority, with which he is invested, whereby he is enabled to decide our happiness or misery; and, in fine, the intire confidence we have in him, because of his power, wisdom, and goodness. What can we imagine more to captivate the will, to gain the heart, to oblige man, and to produce within him the highest degree of moral necessity, which constitutes the most perfect obligation? I say, moral necessity; for we are not to destroy the nature of man; he remains always what he is, a free and intelligent being; and as such, the sovereign undertakes to direct him by his laws. Hence it is that even the strictest obligations never force the will; but, rigorously speaking man is always at liberty to comply or not, though, as we commonly say, at his risk and peril. But, if he consults reason, and is willing to follow its dictates, he will take particular care to avoid exercising this metaphysical power in opposition to the views of his sovereign; an opposition, that must terminate in his own misery and ruin.

XII. We have already observed, that there are two sorts of obligation;^[12] the one internal, which is the work of reason only, and founded on the good or evil, we perceive in the very nature of things; the other external, which is produced by the will of him, whom we acknowledge our superior and master. Now the obligation, produced by law, unites these two sorts of ties, which by their concurrence strengthen each other, and thus form the completest obligation that can possibly be imagined. It is probably for this reason, that most civilians acknowledge no other obligation, properly so called, but that, which is the effect of law, and imposed by a superior. This is true, if we mean only an external obligation, which indeed is the strongest tie of man. But it must not be thence inferred, that we ought to admit no other sort of obligation. The principles we established, when inquiring into the first origin and the nature of obligation generally considered, and the particular remarks, we have just now made on the obligation arising from law, are sufficient, if I mistake not, to evince, that there is a primitive, original, and internal obligation, which is inseparable from reason, and ought necessarily to concur with the external obligation, in order to communicate to the latter all the necessary force for determining and bending the will, and fur influencing effectually the human heart.

By distinguishing rightly these ideas, we shall find, perhaps, that this is one way of reconciling opinions, which seem to be wide from each other, only because they are misunderstood.^[13] Sure it is at least, that the manner, in which we have explained the foundation of sovereignty and dependence, coincides, in the main, with Puffendorf's system, as will easily appear by comparing it with what this author says, whether in his large work or in his abridgment.^[14]

1. See Hobbes de Cive, cap. 15. § 5.

2. See Puffendorf on the Law of Nature and Nations, book i. chap. vi. § 11.

3. It is found in the second note on section 12 of Puffendorf on the Law of Nature and Nations, book i. chap. 6; and in the third note on § 5 of the Duties of Man and a Citizen, book i. chap. 2.

4. Chap. vi and vii.

5. See chap. viii. § 6.

6. See chap. vii. § 3.

7. And therefore, though that notion of the Epicureans was most senseless and impious, in which they described the gods, as enjoying their own happiness with the highest peace and tranquillity, far removed from the troublesome care of human business, and neither smiling at the good, nor frowning at the wicked deeds of men; yet they rightly enough inferred, that upon this supposition, all religion, and all fear of divine powers, was vain and useless. Puffendorf Law of Nature and Nations, book i. chap. vi. § 11. See Cicero de Nat Deor. lib. i. cap. 2.

8. It may indeed be said, that the foundation of external obligation is the will of a superior (see above, chap. vi. § xii.) provided this general proposition be afterwards explained by the particulars into which we have entered. But when some add, that force has nothing to do with the foundation of this obligation, and that it only serves to enable the superior to exert his right (See Barbeyrac's 1st note on the 9th section of Puffendorf's large work, book i. chap. 6.) this notion does not appear to me to be exact; and methinks that this abstract manner of considering the thing subverts the very foundation of the obligation here in question. There can be no external obligation without a superior, nor a superior without force, or, which is the same thing, without power; force therefore or power is a necessary part of the foundation of obligation.

9. See the Duties of Man and a Citizen, book i. chap, a. § 4. and the Law of Nature and Nations, book i. chap. 6. § 6, 8.

10. See Section 1.

11. See chap. vi. § 10.

12. See chap. vi, § 13.

13. See part the second chap. vi.

14. See the Law of Nature and Nations, book i. chap, vi § 5, 6, 8, and 9. And the Duties of Man and a Citizen, book i. chap. ii. § 3, 4, 5.

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