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

CHAP. XI.

Of the morality of human actlons.^[1]

I. LAW being the rule of human actions, in a comparative view, we observe that the latter are either conformable or opposite to the former; and this sort of qualification of our actions in respect to law is called morality.

The term of morality comes from mores or manners. Manners, as we have already observed, are the free actions of man, considered as susceptible of direction and rule. Thus we call morality the relation of human actions to the law, by which they are directed; and we give the name of moral philosophy to the collection of those rules, by which we are to square our actions.

II. The morality of actions may be considered in two different lights, 1. in regard to the manner, in which the law disposes of them; and 2. in relation to the conformity or opposition of those same actions to the law.

In the first consideration, human actions are either commanded, or forbidden, or permitted.

As we are indispensably obliged to do what is commanded, and to abstain from what is forbidden by a lawful superior, civilians consider commanded actions as necessary, and forbidden actions as impossible. Not that man is deprived of a physical power of acting contrary to law, and incapable, if he has a mind, of exercising this power. But, since his acting after this manner would be opposite to right reason, and inconsistent with his actual state of dependence, it is to be presumed, that a reasonable and virtuous man, continuing and acting as such, could not make so bad a use of his liberty; and this presumption is in itself too reasonable, and honorable to humanity, not to meet with approbation. Whatever (say the Roman lawyers^[2]) Is injurious to piety, refutation, or modesty, and in general to good manners, ought to be presumed impossible.

III. With regard to permitted actions, they are such, as the law leaves us at liberty to do, if we think proper.^[3] Upon which we must make two or three remarks.

1. We may distinguish two sorts of permission; one full and absolute, which not only gives us a right to do certain things with impunity, but moreover is attended with a positive approbation of the legislator. The other is an imperfect permission, or a kind of toleration, which implies no approbation but a simple impunity.

2. The permission of natural laws always denotes a positive approbation of the legislator; and whatever happens in consequence thereof is innocently done, and without any violation of our duty. For it is evident that God could not positively permit the least thing, that is bad in its nature.

3. It is otherwise in respect to the permission of human laws. We may indeed justly and with certainty infer, that a sovereign has not thought proper to forbid or punish some particular things; but it does not always thence follow, that he really approves those things, and much less, that they may be innocently done, and without any breach of duty.

IV. The other manner, in which we may view the morality of human actions, is with regard to their conformity or opposition to the law. In this respect actions are divided into good or just, bad or unjust, and indifferent.

An action morally good or just, is that, which in itself is exactly conformable to some obligatory law, and moreover is attended with the circumstances and conditions, required by the legislator.

I said 1. a good or just action; for there is properly no difference between the goodness and justice of actions; and there is no necessity to deviate here from the common language which confounds these two ideas. The distinction, which Puffendorf makes between these two qualities is quite arbitrary, and even he himself afterwards confounds them.^[4]

2. I said an action morally good; because we do not consider here the intrinsic and natural goodness of actions, by virtue of which they redound to the physical good of man; but only the relation of agreeableness they have to the law, which constitutes their moral goodness. And, though these two sorts of goodness are always found inseparably united in things, ordained by natural law, yet we must not confound these two different relations.

V. In fine, to distinguish the general conditions, whose concurrence is necessary in order to render an action morally good with respect to the agent; I have added, that this action ought to be in itself exactly conformable to the law, and accompanied moreover with the circumstances and conditions, required by the legislator. And first it is necessary, that this action should comply exactly, and through all its parts, with the tenor of what the law ordains. For as a right line is that, whose points correspond to the rule without the least deviation; in like manner, an action rigorously speaking, cannot be just, good, or right, unless it agrees exactly, and in every respect with the law. But even this is not sufficient; the action must be performed also pursuant to the manner, required and intended by the legislator. And in the first place it Is necessary, it be done with a competent knowledge, that is, we must know, that what we do is conformable to the law; otherwise the legislator would have no regard for the action, and our labour would be entirely lost. In the next place, we must act with an upright intention, and for a good end, namely to fulfil the views of the legislator, and to pay a due obedience to the law; for, if the agent's intention be bad, the action, instead of being deemed good may be imputed to him as vicious. In fine, we should act through a good motive; I mean a principle of respect for the sovereign, of submission to the law, and from a love of our duty; for plain it is, that all these conditions are required by the legislator.

VI. What has been above affirmed concerning good actions sufficiently shows us the nature of those, which are bad or unjust. These are in general such, as of themselves, or by their concomitant circumstances, are contrary to the disposition of an obligatory law, or to the intention of the legislator.

There are therefore two general springs of injustice in human actions; one proceeds from the action, considered in itself, and from its manifest opposition to what is commanded or prohibited by the law. Such as, for example, the murder of an innocent person. And all these kinds of actions intrinsically bad can never become good, whatever may be in other respects the intention or motive of the agent. We cannot employ a criminal action, as a lawful mean to attain an end in itself good; and thus we are to understand the common maxim, evil must not be done, that good may come of it. But an action, intrinsically and as to its substance good, may become bad, if it be accompanied with circumstances directly contrary to the legislator's intention; as for instance if it be done with a bad view, and through a vicious motive. To be liberal and generous towards our fellow citizens is a good and commendable thing in itself; but if this generosity is practised merely with ambitious views, in order to become insensibly master of the commonwealth, and to oppress the public liberty, the perversity of the motive, and the injustice of the design, render this action criminal.

VII. All just actions are, properly speaking, equally just; by reason that they have all an exact conformity to the law. It is not the same with unjust or bad actions; which, according as they are more or less opposite to the law, are more or lest vicious; similar in this respect to curve lines, which are more or less so, in proportion as they deviate from the rule. We may therefore be in several ways wanting in our duty. Sometimes people violate the law deliberately, and with malice prepense; which is undoubtedly the very highest degree of iniquity, because this kind of conduct manifestly indicates a formal and reflective contempt of the legislator and his orders; but sometimes We are apt to sin through neglect and inadvertency, which is rather a fault than a crime. Besides, it is plain that this neglect has its degrees, and may be greater or less, and deserving, of more or less censure. And, as in every thing, unsusceptible of an exact and mathematical measure, we may always distinguish at least three degrees, namely two extremes and a middle; so civilians distinguish three degrees of fault or negligence; a gross fault, a slight one, and a very slight one. It is sufficient to have mentioned these principles, the explication and distinct account whereof will naturally take place, when we come to the particular questions, relating to them.

VIII. But we must carefully observe, that what essentially constitutes the nature of an unjust action is its direct opposition or contrariety to the disposition of the law, or to the intention of the legislator; which produces an intrinsic defect in the matter or form of that action. For, though in order to render an action morally good it is necessary, as we have already observed, that it be entirely conformable to the law, with respect as well to the substance, as to the manner and circumstances; yet we must not thence conclude, that the defect of some of those conditions always renders an action positively bad or criminal. To produce this effect there must be a direct opposition, or formal contrariety between the action and the law; a simple defect of conformity being insufficient for that purpose. This defect is indeed sufficient to render an action not positively good or just; however it does not become therefore bad, but only indifferent. For example, if we perform an action good in itself, without knowing for what reason, or even that it is commanded by the law; or if we act through a different motive from that, prescribed by the law, but in itself innocent and not vicious; the action is reputed neither good nor bad, but merely indifferent.

IX. There is therefore such a thing, as indifferent actions, which hold a middle rank, as it were, between just and unjust. These are such, as are neither commanded nor prohibited, but which the law leaves us at liberty to do or to omit, according as we think proper. That is, those actions are referred to a law of simple permission, and not to an obligatory law.

Now that such actions there are is what no one can reasonably question. For what a number of things are there, which, being, neither commanded nor forbidden by any law, whether divine or human, have consequently nothing obligatory in their nature, but are left to our liberty to do or to omit, just as we think proper? It is therefore an idle subtlety in schoolmen to pretend, that an action cannot be indifferent, unless it be in an abstract consideration, as stript of all the particular circumstances of person, time, place, intention, and manner. An action, divested of all these circumstances, is a mere Ens rationis; and, if there be really any indifferent actions, as undoubtedly there are, they must be relative to particular circumstances of person, time, and place, &c.

X. Good or bad actions may be ranged under different classes, according to the object, to which they relate. Good actions, referred to God, are comprised under the name of Piety. Those, which relate to ourselves, are distinguished by the words Wisdom, Temperance, Moderation. Those, which concern other men, are included under the terms of Justice and Benevolence. We only anticipate here the mentioning of this distinction, because we must return to it again, when we come to treat of natural law. The Same distinction is applicable to bad actions, which belong either to Impiety, Intemperance, or Injustice.

XI. It is common to propose several divisions of justice. That we may not be silent on this article, we shall observe,

1. That justice may, in general, be divided into perfect or rigorous. The former is that, by which we perform towards our neighbour whatever is due to him in virtue of a perfect or rigorous right, that is, the execution of which he may demand by forcible means, unless we satisfy him freely, and with a good will; and it is in this strict sense, that the word Justice is generally understood. The second is that, by which we perform towards another the duties owing to him only in virtue of an imperfect and nonrigorous obligation, which cannot be insisted on by violent methods; but the fulfilling of them is left to each person's honour and conscience.^[5] These kinds of duties are generally comprehended under the appellations of humanity, charity, or benevolence, in opposition to rigorous justice, or justice properly so called. This division of justice coincides with that of Grotius into expletive and attributive.

2. We might subdivide rigorous justice into that, which is exercised between equals, arid that, which takes place between superior and inferior.^[6] The former contains as many different species, as there are duties, which one man may in rigour require of every other man, considered as such, and one citizen of every fellow citizen. The latter includes as many species, as there are different societies, where gome command and others obey.^[7]

3. There are other divisions of justice, but such, as seem useless, and far from being exact. For example, that of universal and particular justice, taken in the manner as Puffendorf explains it, appears incorrect, inasmuch as one of the members of the division is included in the other.^[8] The subdivision of particular justice into distributive and commutative is incomplete; because it includes only what is due to another by virtue of some pact or engagement, notwithstanding there are many things, which our neighbour may require of us in rigour, without any regard to pact or convention. And we may observe in general, by reading what Grotius and Puffendorf have written concerning this subject, that they are at a loss themselves to give a clear and exact idea of these different kinds of justice. Hence it is manifest, that we had better wave all these scholastic divisions, contrived in imitation of those of Aristotle, and abide by our first division. And indeed it is only out of respect to the common opinion, that we have taken any notice thereof.^[9]

XII. Besides what we may call the quality of moral actions, they have likewise a kind of quantity, which, by comparing the good actions to one another, as also the bad in the same manner, leads us to a sort of relative estimation, in order to mark the greater or less degree of evil to be found in each.

We shall give here the principles necessary for this estimation.

1. These actions may be considered with regard to their object. The nobler the object the higher the excellence of the good action, done towards this object; and a bad action, on the contrary, becomes more criminal.

2. In respect to the quality and state of the agent. Thus a favor or benefit, received of an enemy, excels that, which is conferred upon us by a friend. And, on the contrary, an injury done us by a friend, is more sensible, and more atrocious, than that, which is committed by an enemy.

3. In reference to the very nature of the action, according as there is more or less trouble to perform. The more a good action is difficult, supposing every thing else equal, the more worthy it is of praise and admiration. But the easier it is to abstain from a bad action, the more it is blameable and enormous in comparison to another of the same species.

4. In relation to the effects and consequences of the action. An action is so much the better or worse, in proportion, as we foresee, that its consequences must be more or loss advantageous or hurtful.

5. We may add the circumstances of time, place, &c. which are also capable of making the good or bad actions surpass one another in excellence or badness. We have borrowed these remarks from one of Barbeyrac's notes on Puffendorf.^[10]

XIII. Let us observe in fine, that morality is attributed to persons as well as actions; and, as actions are good or bad, just or unjust, we say likewise of men, that they are good or bad, virtuous or vicious.

A virtuous man is he, who has a habit of acting conformably to the laws of his duty. A vicious man is one, who has the opposite habit.

Virtue therefore consists in a habit of acting according to the laws; and vice in the contrary habit.

I said that virtue and vice are habits. Hence to judge properly of these two characters, we should not stop at some particular action; we ought to consider the whole series of the life and ordinary conduct of man. We should not therefore rank among the number of vicious men those, who through weakness, or otherwise, have been sometimes induced to commit a bad action; as on the other hand those, who have done a few acts of virtue, do not merit the title of honest men. There is no such thing to be found in this world, as virtue in every respect complete; and the weakness inseparable from man requires we should not judge him with full rigour. Since it is allowed, that a virtuous man may, through weakness and surprise, commit some unjust action; so it is but right we should likewise allow, that a man, who has contracted several vicious habits, may notwithstanding, in particular cases, do some good action, acknowledged and performed as such. Let us not suppose men worse, than they really are, but take care to distinguish the several degrees of iniquity and vice, as well as those of probity and virtue.

END OF THE FIRST PART.

1. See the Law of Nature and Nations, book i, chap. vii. and the Duties of Man and a Citizen, book i. chap. ii. § 11. &c.

2. Nam quæ facta lædunt pietatem, existimationem, verecundiam nostram, et (ut generaliter dixerim) contra bonos mores fiunt, nec facere nos posse credandum est. L. 15. D. de condit. Institut.

3. See chap. x. § 5.

4. Compare what he says in the Law of Nature and Nations, book i. chap. viii § 7. in the beginning, with § 4. of the same chapter.

5. See chap. vii. § 8.

6. This amounts to the same thing very near, as the Jus rectorium and æquatorium of Grotius. Book i. chap. I. § 3. num. 3.

7. See Biddæus, Elementa philos. pract. part ii. cap. ii. § 46.

8. Law of Nature and Nations, book i. chap. viii. § 8. And the Duties of Man and a Citizen, book i. chap. ii. § 14. with Barbeyrac's notes.

9. See Grotius, Rights of War and Peace, book i. chap. i. § 8. Puffendorf, Law of Nature and Nations, book i. chap. vii. § 9, 10, 11, 12, with Barbeyrac's notes.

10. See the Law of Nature and Nations, book i, chap. viii. sect, 5. note 1.

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