The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of right, considered as a faculty, and of
the obligation thereto corresponding
I. BESIDES the general idea of right, such as has been now explained, considering it as the primitive rule of human actions, this term is taken in several particular significations, which we must here point out.
But, previous to every thing else, we should not forget the primitive and general notion, we have given of right. For, since it is from this notion, as from its principle, that the subject of this and the following chapters is deduced, if our reasonings are exact in themselves, and have a necessary connexion with the principle, this will furnish us with a new argument in its favor. But if unexpectedly it should turn out otherwise, we shall have at least the advantage of detecting the error in its very source, and of being better able to correct it. Such is the effect of a just method; we are convinced, that a general idea is exact, when the particular ideas are reducible to it, as different branches to their trunk.
II. In the first place, Right is frequently taken from a personal quality, for a power of acting or faculty. It is thus we say, that every man has a right to attend to his own preservation; that a parent has a right to bring up his children; that a sovereign has a right to levy troops for the defence of the state, etc.
In this sense we must define Right a power, that man hath to make use of his liberty and strength in a particular manner, either in regard to himself, or in respect to other men, so far as this exercise of his strength and liberty is approved by reason.
Thus, when we say, that a father has a right to bring up his children, all that is meant hereby is, that reason allows a father to make use of his liberty and natural force in a manner suitable to the preservation of his children, and proper to cultivate their understandings, and to train them up in the principles of virtue. In like manner, as reason gives its approbation to the sovereign in whatever is necessary for the preservation and welfare of the state, it particularly authorises him to raise troops and bring armies into the field, in order to oppose an enemy; and in consequence hereof we say he has a right to do it. But, on the contrary, we affirm, that a prince has no right, without a particular necessity, to drag the peasant from the plough, or to force poor tradesmen from their families; that a father has no right to expose his children, or to put them to death, etc. because these things, far from being approved, are expressly condemned by reason.
III. We must not therefore confound simple power with right. A simple power is a physical quality; it is a power of acting in the full extent of our natural strength and liberty; but the idea of right is more confined. This includes a relation of agreeableness to a rule, which modifies the physical power, and directs its operations in a manner proper to conduct man to a certain end. It is for this reason we say that right is a moral quality. It is true there are some, who rank power as well as right among the number of moral qualities;1 but there is nothing in this essentially opposite to our distinction. Those, who rank these two ideas among moral entities, understand by power pretty near the same thing, as we understand by right; and custom seems to authorise this confusion; for we equally use, for instance, paternal power, and paternal right, etc. Be this as it will, we are not to dispute about words. The main point is to distinguish between physical and moral; and it seems that the word right, as Puffendorf himself insinuates,2 is fitter of itself than power to express the moral idea. In short, the use of our faculties becomes a right only so far, as it is approved by reason, and is found agreeable to this primitive rule of human actions. And whatever a man can reasonably perform becomes in regard to him a right, because reason is the only mean, that can conduct him in a short and sure manner to the end he proposes. There is nothing therefore arbitrary in these ideas; they are borrowed from the very nature of things, and, if we compare them with the foregoing principles, we shall find they flow from them as necessary consequences.
IV. If any one should afterwards inquire, on what foundation it is that reason approves a particular exercise of our strength and liberty, in preference to another, the answer is obvious. The difference of those judgments arises from the very nature of things and their effects. Every exercise of our faculties, that tends of itself to the perfection and happiness of man, meets with the approbation of reason, which condemns whatever leads to a contrary end.
V. Obligation answers to right, taken in a manner above explained, and considered in its effects with regard to another person.
What we have already said, in the preceding chapter, concerning obligation, is sufficient to convey a general notion of the nature of this moral quality. But in order to form a just idea of that, which comes under our present examination, we are to observe, that when reason allows a man to make a particular use of his strength and liberty, or, which is the same thing, when it acknowledges he has a particular right, it is requisite, by a very natural consequence, that in order to ensure this right to man, he should acknowledge at the same time, that other people ought not to employ their strength and liberty in resisting him in this point; but on the contrary, that they should respect his right, and assist him in the exercise of it, rather than do him any prejudice. From this the idea of obligation naturally arises; which is nothing more than a restriction of natural liberty produced by reason; inasmuch as reason does not permit an opposition to be made to those, who use their right, but on the contrary it obliges every body to favour and abet such, as do nothing but what it authorises, rather than oppose or traverse them in the execution of their lawful designs.
VI. Right therefore and obligation are, as logicians express it, correllative terms; one of these ideas necessarily supposes the other; and we cannot conceive a right without a corresponding obligation. How, for example, could we attribute to a father the right of forming his children to wisdom and virtue by a perfect education, without acknowledging at the same time, that children ought to submit to paternal direction, and that they are not only obliged not to make any resistance in this respect, but moreover to concur, by their docility and obedience, to the execution of their parents views? Were it otherwise, reason would be no longer the rule of human actions; it would contradict itself, and all the rights it grants to man would become useless and of no effect; which is taking from him with one hand what it gives him with the other.
VII. Such is the nature of right, taken for a faculty, and of the obligation thereto corresponding. It may be generally affirmed, that man is susceptible of these two qualities, as soon as he begins to enjoy life and sense. Yet we must make some difference here, between right and obligation, in respect to the time, in which these qualities begin to unfold themselves in man. The obligations a person contracts as man, do not actually display their virtue till he is arrived to the age of reason and discretion. For, in order to discharge an obligation, we must be first acquainted with it; we must know what we do, and be able to square our actions by a certain rule. But as for those rights, that are capable of procuring the advantage of a person without his knowing any thing of the matter, they date their origin, and are in full force from the very first moment of his existence, and lay the rest of mankind under an obligation of respecting them. For example, the right, which requires, that nobody should injure or offend us, belongs as well to children, and even to infants, that are still in their mothers wombs, as to adult persons. This is the foundation of that equitable rule of the Roman law, which declares,3 That infants, who are as yet in their mothers wombs, are considered as already brought info the world, whenever the question relates to any thing, that may turn to their advantage. But we cannot with any exactness affirm, that an infant, whether already come or coming into the world, is actually subject to any obligation with respect to other men. This state does not properly commence, with respect to man, till he has attained the age of knowledge and discretion.
VIII. Various are the distinctions of rights and obligations; but it will be sufficient for us to point out those only, that are most worthy of notice.4
In the first place, rights are natural, or acquired. The former are such as appertain originally and essentially to man, such, as are inherent in his nature, and which he enjoys as man, independent of any particular act on his side. Acquired rights, on the contrary, are those, which he does not naturally enjoy, but are owing to his own procurement. Thus the right of providing for our preservation is a right natural to man; but sovereignty, or the right of commanding a society of men, is a right acquired.
Secondly, rights are perfect, or imperfect. Perfect rights are those, which may be asserted in rigour, even by employing force to obtain the execution, or to secure the exercise thereof in opposition to all those, who should attempt to resist or disturb us. Thus reason would empower us to use force against any one, who would make an unjust attack on our lives, our goods, or our liberty. But, when reason does not allow us to use forcible methods, in order to secure the enjoyment of the rights, it grants us, then these rights are called imperfect. Thus, notwithstanding reason authorises those, who of themselves are destitute of means of living to apply for succour to other men; yet they cannot, in case of refusal, insist upon it by force, or procure it by open violence. It is obvious, without our having any occasion to mention it hate, that obligation answers exactly to right, and is more or less strong, perfect, or imperfect, according as right itself is perfect or imperfect.
Thirdly, another distinction, worthy of our attention, is, that there are rights, which may be lawfully renounced, and others, that cannot. A creditor for example may forgive a sum due to him, if he pleases, either in the whole or part; but a father cannot renounce the right, he has over his children, nor leave them in an intire independence. The reason of this difference is, that there are rights, which of themselves have a natural connection with our duties, and are given to man only, as means to perform them. To renounce this sort of rights would, be therefore renouncing our duty, which is never allowed. But with respect to rights, that no way concern our duties, the renunciation of them is licit, and only a matter of prudence. Let us illustrate this with another example. Man cannot absolutely, and without any manner of reserve, renounce his liberty; for this would be manifestly throwing himself into a necessity of doing wrong, were he so commanded by the person, to whom he has made this subjection. But it is lawful for us to renounce a part of our liberty, if we find ourselves better enabled thereby to discharge our duties, and to acquire some certain and reasonable advantage. It is with these modifications we must understand the common maxim, That it is allowable for every one to renounce his right.
Fourthly, Right in fine considered in respect to its different objects, may be reduced to four principal species. 1. The right we have over our own persons and actions, which is called Liberty. 2. The right we have over things or goods, that belong to us, which is called Property. 3. The right we have over the persons and actions of other men, which is distinguished by the name of Empire or Authority. 4. And in fine the right one may have over other men’s things, of which there are several sorts. It suffices, at present, to have given a general notion of these different species of right. Their nature and effects will be explained, when we come to a particular inquiry into these matters.
Such are the ideas we ought to have of right, considered as a faculty. But there is likewise another particular signification of this word, by which it is taken for law; as when we say, that natural right is the foundation of morality and politics; that it forbids us to break our word; that it commands the reparation of damage, etc. In all these cases, right is taken for law. And as this kind of right agrees in a particular manner with man, it is therefore a matter of importance to clear and explain it well, which we shall endeavour to perform in the following chapters.
1. See Puffendorf on the Law of Nature and Nations, book i. chap. i. § 19.
2. There seems to be this difference between the terms power and right; that the first does more expressly import the presence of the said quality, and does but obscurely denote the manner how any one acquired it. Whereas the word right does properly and clearly show, that the quality was fairly got, and is now fairly possessed. Puffendorf on the Law of Nature and Nations, book i. chap. I. § 20.
3. Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodo ipsius part s quµritur. L. 7. de statu homin. lib. I. tit. 3. Another civilian establishes this rule. Itaque pati quis injuriam, etiamsi non sentiat, potest; facere nemo, nisi qui scit se injuriam facere, etiamsi nesciat cui faciat, L. 3. 5 2. D. de injuriis lib. 47, tit. 10.
4. See Puffendorf on the Law of Nature and Nations, book i. chap. i. § 19. and Grotius of the Rights of War and Peace, book i. chap. i, § 4, 5, 6, 7, with Barbeyrac’s notes.