Pufendorf: On the Duty of Man and Citizen: Book I Chapter II

CHAPTER II
On the Norm of Human Actions, or Law in General

1. Because human actions depend upon the will, but the wills of individuals are not always consistent, and those of different men generally tend toward different things, therefore, in order to establish order and seemliness among the human race, it was necessary that some norm should come into being, to which actions might be conformed. For otherwise, if with such freedom of the will, and such diversity of inclinations and tastes, each should do whatever came into his head, without reference to a fixed norm, nothing but the greatest confusion could arise among men.

2. That norm is called law, that is, a decree by which a superior obliges a subject to conform his arts to his own prescription.

3. That this definition may be better understood, we must develop the meaning of obligation, whence it arises, who can undertake an obligation, and who impose it upon another. Obligation, then, is commonly defined as a legal bond, by which we are of necessity bound to perform something. That is, a kind of bridle is thereby put upon our freedom, so that, though in actual fact the will can have a different aim, still it finds itself imbued with an inward sentiment due to the obligation, with the result that, if the action performed is not in conformity with the prescribed norm, the will is forced to acknowledge that it has not done what is right. And so if any ill should befall a man on that account, he would judge that it befalls him not undeservedly; since by following the norm, as was proper, he might have avoided it.

4. For the fart that man is fitted to undertake an obligation there are two reasons: one, because he has a will which can turn in different directions, and so also conform to the rule; the other, since man is not free from the power of a superior. For where an agent's powers have been bound by nature to a uniform mode of action, there we look in vain for free action; and it is vain to prescribe a rule for a man who cannot understand it nor conform to the same. Again, assuming that a man does not recognize a superior, there is for that reason no one who can rightfully impose a necessity upon him. And if he be ever so strict in observing a certain method of action, and consistently abstain from certain arts, still he is understood to do this not from any obligation, but from his own good pleasure. It follows then that he is capable of an obligation who not only has a superior, but also can recognize a prescribed rule, and further has a will flexible in different directions, but conscious of the fart that, when the rule has been prescribed by a superior, it does wrong to depart from the same. Such is evidently the nature with which man is endowed.

5. Obligation is properly introduced into the mind of a man by a superior, that is, a person who has not only the power to bring some harm at once upon those who resist, but also just grounds for his claim that the freedom of our will should be limited at his discretion. For when these conditions are found in anyone, he has only to intimate his wish, and there must arise in men's minds a fear that is tempered with respect, the former in view of his power, the latter in consideration of the reasons, which, were there no fear, must still induce one to embrace his will. For whoever is unable to assign any other reason why he wishes to impose an obligation upon me against my will, except mere power, can indeed frighten me into thinking it better for a time to obey him, to avoid a greater evil; but, once that fear is removed, nothing further remains to prevent my acting according to my will rather than his. Conversely, if he has indeed the reasons which make it my duty to obey him, but lacks the power of inflicting any harm upon me, I may with impunity neglect his commands, unless a more powerful person comes to assert the authority upon which I have trampled. Now the reasons why one may rightly demand that another obey him are: in case some conspicuous benefits have come to the latter from the former; or if it be proved that he wishes the other well, and is also better able than the man himself to provide for him, and at the same time actually claims control over the other; and finally if a man has willingly subjected himself to another and agreed to his control.

6. But that the law may exert its power in the minds of those for whom it is made, knowledge both of the lawgiver and of the law itself is required. For no man will be able to yield obedience, if he knows neither whom he ought to obey, nor to what he is obligated. And as for the lawgiver, knowledge of him is very easy. For the natural laws, as the light of reason assures us, have the same author as the universe. And the citizen cannot fail to know who has authority over him. How the natural laws are made known, will be explained presently. Civil laws come to the knowledge of subjects by public and explicit promulgation. In this two things must be dear: that the law has as its author him who has the highest authority in the state; and also what is the meaning of the law. The former point is established, if the sovereign shall promulgate the law by his own lips, or sign them with his own hand, or if this be done by his ministers. The authority of the latter it is idle to question if it is clear that this function is connected with the office which they fill in the state, and that they are regularly employed for the same purpose; further if the laws in question are for the guidance of the courts, and if they contain nothing derogatory to the sovereign authority. As for the meaning of the law, that this may be rightly understood, it is incumbent upon those who promulgate them to use the utmost clearness. Should any obscurity be found in the laws, an interpretation must be sought from the lawgiver, or from those who are publicly ordained to render justice in accordance with the laws.

7. Every perfect law has two parts: one defining what is to be done, or not done; the other indicating what punishment is in store for him who neglects what is enjoined and does what is forbidden. For on account of the depravity of human nature, prone as it is to the forbidden, it is superfluous to say "Do this!" if there is no punishment in store for the non-doer. And it is equally absurd to say "You will pay the penalty," if the reason which merits punishment has not preceded. Accordingly all the force of a law consists in the declaration of what our superior wishes us to do or not do, and of the penalty which has been fixed for transgressors of the law. But the power to oblige, that is, to impose an inward necessity, and the power to force or compel by penalties to observe the law, resides exclusively in the lawgiver, and in him to whom has been committed the maintenance and execution of the laws.

8. Whatever is enjoined upon a man by the laws ought not only to be within his powers, for whom they are made, but should also bring some advantage either to the man himself or to others. For as it would be absurd and cruel to attempt-under threat of a penalty to exact from a man what is and has always been beyond his powers, so it is idle to constrain the natural freedom of the will, if no advantage for anybody be derived therefrom.

9. Moreover, although regularly a law embraces all the lawgiver's subjects to whom the content of the law applies, and whom the lawgiver did not from the beginning wish exempt, it nevertheless sometimes happens that a man is expressly released from the obligation of a law. And this is called dispensation. But he only can dispense to whom belongs the power of enacting and abrogating a law; and pains too must be taken that the authority of the laws be not undermined by promiscuous dispensation granted without the weightiest reasons, and thus occasion be given for jealousy and indignation among the subjects.

10. Very different from dispensation, however, is equity, a correction of a defect in the law due to its universality, or a skillful interpretation of the law, showing by the natural reason that a particular case is not included under the general law, since otherwise some absurdity would result. For because it is impossible either to foresee or state all cases on account of their infinite variety, the judges, whose task it is to apply general enactments of the laws to particular cases, are bound to except from the law the kind of cases which the lawgiver would himself have excepted, were he present, or had he foreseen such instances.

11. Again, from their relation to the moral standard and their agreement with it human actions gain certain qualifying terms. As for the actions in regard to which the law ordains nothing in either direction, they are called legitimate or permitted. Sometimes, to be sure, in the civil life, in which not everything can be cut back to the quick, those acts also are called legitimate against which no punishment has been ordained in the human court, though in themselves they are repugnant to natural goodness. Also, actions in agreement with law are called good, if not in harmony therewith, bad. But for an action to be good, it must in every way agree with the law; to be bad, it is enough that it be defective at a single point.

12. Justice, however, is sometimes an attribute of actions, sometimes of persons. When justice is attributed to a person, it is commonly denned as the "constant and perpetual will to render to every man his due."^[3] For he who delights in doing just deeds, who is devoted to justice, who in everything endeavors to do what is just, is called a just man. On the other hand the unjust is he who neglects to give every man his due, or thinks the measure must be not that of his duty, but of present advantage. Consequently not a few of the just man's acts may be unjust, and conversely. For the just man acts justly on account of the precept of the law, but unjustly only through weakness, while the unjust acts justly on account of the penalty annexed to the law, and unjustly from an evil character.

13. But when justice is predicated of actions, there is merely a proper application of these to the person. And a just action is one which from deliberate choice, that is, by a knowing and willing agent, is applied to the person to whom it is due. Hence the justice of acts differs from their goodness especially in this, that the latter merely indicates conformity to law, while justice involves in addition a regard for those toward whom the action goes out. For this reason justice is also defined as virtue in relation to another.

14. On the division of justice there is no agreement. The generally received division is into universal and particular. We speak of the former, when any duty whatever is practiced toward others, even that which could not be exacted by force or by suit at law; of the latter, when a man receives just what he could by rights demand. And this is again divided into distributive justice and commutative justice. The former rests upon a compact entered into between a society and its members concerning the pro rata sharing of profit and loss. The latter rests upon a bilateral contract in regard especially to things and acts connected with trade.

15. Having learned what justice is, it is easy to conclude what injustice is. But here one must observe that an unjust act, undertaken after premeditation, and violating what is by perfect right due another, or what he possessed by the same right, — no matter whence obtained, — that act is properly called an injury. And this happens in three ways: if one is refused a thing which he could by his own right demand (not if something was due him out of mere humanity, or some such virtue); or if that is taken away from him which he rightly held, by a title valid against the aggressor; or if we inflict upon another some harm which we had not the right to inflict. For an injury, moreover, premeditation is required, and malice on the part of the doer. Failing this, harming another is called an accident or a fault, more or less serious, according to the seriousness of the thoughtlessness and neglect, in consequence of which the encounter occurred.

16. With respect to its author, the law is divided into divine and human, the one enacted by God, the other by men. But if law be considered according as it has a necessary and universal adaptation to men or not, it is divided into the natural and the positive. The former is so adapted to the rational and social nature of man, that an honorable and peaceful society cannot exist for mankind without it. Consequently it can be investigated and learned as a whole, by the light of man's inborn reason and a consideration of human nature. The latter kind of justice by no means flows from the common condition of human nature, but proceeds from the decision of the lawgiver alone. And yet it ought not to lack its own reason, and the utility which it effects for certain men or a particular society. But while the divine law is now natural and now positive, human law is, in the strict sense, altogether positive.

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