The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the end of laws; of their characters; differences, etc.
I. SOME perhaps will complain, that we have dwelt too long on the nature and foundation of sovereignty. But the importance of the subject required us to treat it with care, and to unravel properly its principles. Besides we apprehend, that nothing could contribute better to a right knowledge of the nature of law; and we shall presently see, that whatever in fact remains for us still to say concerning this subject is deduced from the principles just now established.
In the first place, it may be asked, what is the end and design of laws?
This question presents itself in two different lights; namely, with respect to the subject, and with regard to the sovereign; a distinction that must be carefully observed.
The relation of the sovereign to his subjects forms a kind of society between them, which the sovereign directs by the laws he establishes.1 But as the society naturally requires there should be some provision made for the good of all those, who are the constituent parts thereof, it is by this principle we must judge of the end of laws; and this end, considered with respect to the sovereign, ought to include nothing in it opposite to the end of these very laws considered with regard to the subject.
II. The end of the law in regard to the subject is, that he should conform his actions to it, and by this means acquire happiness. As for what concerns the sovereignty, the end he aims at for himself, by giving laws to his subjects, is the satisfaction and glory arising from the execution of the wise designs he proposes, for the preservation of those, who are subject to his authority. These two ends of the law should never be separated, one being naturally connected with the other; for it is the happiness of the subject, that forms the satisfaction and glory of the sovereign.
III. We should therefore take care not to imagine, that laws are properly made in Older to bring men under a yoke. So idle an end would be quite unworthy of a sovereign, whose goodness ought to be equal to his power and wisdom, and who should always act up to these perfections. Let us say rather, that laws are made to oblige the subject to pursue his real interest, and to choose the surest and best way to attain the end he is designed for, which is happiness. With this view the sovereign is willing to direct his people better, than they could themselves, and gives a check to their liberty, lest they should make a bad use of it contrary to their own and the public good. In short, the sovereign commands rational beings; it is on this footing he treats with them; all his ordinances have the stamp of reason; he is willing to reign over our hearts; and if at any time he employs force, it is in order to bring back to reason those, who have unhappily strayed from it, contrary to their own good and that of society.
IV. Wherefore Puffendorf, methinks, speaks somewhat loosely in the comparison he draws between law and counsel, where he says, “That counsel tends to the ends proposed by those, to whom it is given, and that they themselves can judge of those ends, in order to prove or disapprove them. — Whereas law aims only at the end of the person, who establishes it, and, if sometimes it has views in regard to those, for whom it was made, it is not their business to examine them
— this depends intirely on the determination of the legislator.”2 It would be a much juster way, methinks, of expressing the thing to say, that laws have a double end, relative to the sovereign and the subject; that the intent of the sovereign, in establishing them, is to consult his own satisfaction and glory, by rendering his subjects happy; that these two things are inseparable; and that it would be doing injustice to the sovereign to imagine he thinks only of himself, without any regard to the good of those, who are his dependents. Puffendorf seems here, as well as in some other places, to give a little too much into Hobbes’s principles.
V. We denned law, a rule, which lays an obligation on subjects of doing or omitting certain things, and leaves them at liberty to act or not to act in other matters, according as they judge proper, etc. This is what we must explain here a in more particular manner.
A sovereign has undoubtedly a right to direct the actions of those, who are subject to him, according to the ends he has in view. In consequence of this right, he imposes a necessity on them of acting or not acting after a particular manner in certain cases; and this obligation is the first effect of the law. Thence it follows, that all actions, not positively commanded or forbidden, are left within the sphere of our natural liberty; and that the sovereign is hereby supposed to grant every body a permission to act in this respect, as they think proper; and this permission is a second effect of the law. We may therefore distinguish the law, taken in its full extent, into an obligatory law, and a law of simple permission.
It is true Grotius,3 and after him Puffendorf, are of opinion, that permission is not properly, and of itself, an affect or consequence of the law, but a mere inaction of the legislator.4 Whatever things, says Puffendorf, the law permits, those it neither commands nor forbids, and therefore it really doth nothing concerning them.
But though this different manner of considering the thing be not perhaps of any great consequence, yet Barbeyrac’s opinion, such as he has explained it in his notes on the forecited passages, appears to be much more exact. A permission, arising from the legislator’s silence, cannot be considered as a simple inaction. The legislator does nothing but with deliberation and wisdom. If he is satisfied with imposing, only in some cases, an indispensable necessity of acting after a certain manner, and does not extend this necessity further, it is because he thinks it agreeable to the end, he proposes, to leave his subjects at liberty in some cases to do as they please. Wherefore the silence of the legislator imports a positive though tacit permission of whatsoever he has not forbidden or commanded, though he might have done it, and would certainly have done it, had he thought proper. Insomuch that as the forbidden or commanded actions are positively regulated by the law, actions permitted are likewise positively determined by the same law, though after their manner and according to the nature of the thing. In fine, whoever determines certain limits, which he declares we ought not to exceed, does hereby point out how far he permits and consents we should go. Permission therefore is as positive an effect of the law, as obligation.
VII. This will appear still more evident, if we consider, that, having once supposed that we all depend on a superior, whose will ought to be the universal rule of our conduct, the rights attributed to man in this state, by virtue of which he may act safely and with impunity, are founded on the express or tacit permission, received from the sovereign or the law. Besides, every body agrees that the permission, granted by the law, and the right thence resulting, lay other men under an obligation not to resist the person who uses his right, but rather to assist him in this respect, than do him any prejudice. Obligation therefore and permission are naturally connected with each other; and this is the effect of the law, which likewise authorizes those, who are disturbed in the exercise of their rights, to employ force, or to have recourse to the sovereign, in order to remove these impediments. Hence it is, that, after having mentioned in the definition of law, that it leaves us in certain cases at liberty to act or not to act, we added, that it secures the subjects in the full enjoyment of their rights.5
VIII. The nature and end of laws show us their matter or object. The matter of laws in general are all human actions; internal and external; thoughts and words, as well as deeds; those which relate to another, and those which terminate in the person himself, so far at least as the direction of those actions may essentially contribute to the particular good of each person, to that of society in general, and to the glory of the sovereign.
IX. This supposes naturally the three following conditions. 1. That the things, ordained by the law, be possible to fulfil; for it would be folly, and even cruelty to require of any person, under the least commination of punishment, whatever is and always has been above his strength. 2. The law must be of some utility; for reason will never allow any restraint to be laid on the liberty of the subject, merely for the sake of the restraint, and without any benefit or advantage arising to him. 3. In fine, the law must be in itself just; that is conformable to the order and nature of things, as well as the constitution of man; this is what the very idea of rule requires, which, as we have already observed, is the same, as that of law.
X. To these three conditions, which we may call the internal characteristics of law, namely, that it be possible, just, and useful, we may add two other conditions, which in some measure are external; one, that the law be made sufficiently known; the other, that it be attended with a proper sanction.
1. It is necessary, that the laws be sufficiently notified to the subject;6 for how could he regulate his actions and morions by those laws, if he had never any knowledge of them? The sovereign ought therefore to publish his laws in a solemn, clear, and distinct manner. But after that it is the subject’s business to be acquainted with the will of the sovereign; and the ignorance or error, he may lie under in this respect, cannot, generally speaking, be a legitimate excuse in his favor. This is what the civilians mean, when they lay down as a maxim,7 that ignorance or error in regard to the law is blameable and hurtful. Were it not so, the laws would be of no effect, but might always, under a pretext of ignorance, be eluded with impunity.
XI. 2. The next thing requisite is that the law be attended with a proper sanction.
Sanction is that part of the law, which includes the penalty enacted against those, who transgress it. With regard to the penalty, it is an evil, with which the sovereign menaces those subjects, who should presume to violate his laws, and which he actually inflicts, whenever they violate them; and this with a design of procuring some good; such as to correct the culpable, and to admonish the rest; but ultimately, that, his laws being respected and observed, society should enjoy a state of security, quiet, and happiness.
All laws have therefore two essential parts; the first is the disposition of the law, which expresseth the command or prohibition; the second is the sanction, which pronounces the penalty, and it is the sanction, that gives it the proper and particular force of law. For, were the sovereign contented with merely ordaining or forbidding certain things, without adding any kind of menace, this would be no longer a law, prescribed by authority, but merely a prudent counsel.
It is not however absolutely necessary, that the nature or quality of the punishment be formally specified in the law; it is sufficient, that the sovereign declares he will punish, reserving to himself the species and degree of chastisement according to his prudence.8 We must also observe, that the evil, which constitutes the punishment properly so called, ought not to be a natural production or a necessary consequence of the action, intended to be punished. It should be, as it were, an occasional evil, and inflicted by the will of the sovereign. For whatever the action may haw bad of itself and dangerous in its effects and inevitable consequences, cannot be reckoned, as proceeding from the law, since it would equally happen without it. The menaces therefore of the sovereign must, in order to have some weight, be inflictive of such punishments, as differ from the evil, that necessarily arises from the nature of the thing.9
XII. It may be asked in fine whether the sanction of laws may not as well consist in the promise of a recompense, as in the commination of punishment? I answer, that this depends in general on the will of the sovereign, who may use either of these ways; or even employ them both, according as his prudence directs. But, since the question is to know which is the most effectual method, the sovereign can use, in order to enforce the observance of his laws; and since it is certain, that man is naturally more sensibly affected by evil than good, it seems more proper to establish the sanction of law in the commination of punishment, than in the promise of recompense. People are seldom induced to violate the law, unless it be with the hope of procuring at least some apparent good. The best way therefore to prevent this deception is to remove the bait, that allures them, and to annex, on the contrary, a real and inevitable evil to disobedience. Suppose, for instance, two legislators, willing to establish the same law, proposed, one of them great rewards, and the other severe punishments, the latter would undoubtedly dispose men more effectually to compliance, than the former. The most specious promises do not always determine the will; but the view of a rigorous punishment staggers and intimidates it.10 But if the sovereign, by a particular effect of his bounty and wisdom, is willing to join these two means, and to enforce the law by a double motive of observance; there is then nothing wanting to complete its force, since in every respect it is a perfect sanction.
XIII. The obligation, which the laws impose, have as great an extent, as the right of the sovereign; and consequently it may be said in general, that all those, who are dependent on the legislator, are subject to this obligation. But each law in particular obliges those subjects only, to whom the subject matter may be applied; and this is easily known from the very nature of each law, by which the intention of the legislator is sufficiently expressed.
Nevertheless it sometimes happens, that particular persons are exempted from the obligation of observing the law; and this is what we call dispensation, on which we have a few remarks to make.
1. If the legislator can entirely abrogate a law, by a much stronger reason he can suspend the effect thereof, with regard to any particular person.
2. But we must likewise acknowledge, that none but the legislator himself is invested with this power.
3. He never ought to use it without very good reasons, and then he should act with moderation, and according to the rules of equity and prudence. For were he without discretion or choice, to favor too great a number of people with dispensations, he would enervate the authority of the law; or, were he to refuse it in cases perfectly alike, so unreasonable a partiality would certainly be attended with jealousy and discontent.
XIV. As for what concerns the duration of laws, and the manner, in which they are abolished, we are to observe the following principles.
1. In general the duration of law, as well as its first establishment, depends on the free will and pleasure of the sovereign, who cannot reasonably tie up his own hands in this respect.
2. And yet every law, of itself and by its nature, is supposed perpetual when it contains nothing in its disposition, or in the circumstances attending it, that evidently denotes a contrary intention of the legislator, or that may induce us reasonably to presume that it was only a temporary ordinance. The law is a rule; now every rule is of itself perpetual; and, generally speaking, when the sovereign establishes a law, it is not with a design to repeal it.
3. But as the state of things may happen to alter in such a manner, that the law, grown useless or hurtful, can no longer be put into execution; the sovereign can, and ought, in that case, to repeal and abolish it. It would be absurd and pernicious to society to pretend, that laws once enacted ought to subsist forever, let what inconveniency soever arise.
4. This repeal may be made in two different manners, either expressly or tacitly. For when the sovereign, well acquainted with the state of things, neglects for a long time to enforce the observance of the laws, or formally permits, that affairs relating (hereto be regulated in a manner contrary to his disposition; a strong presumption arises of the abrogation of this law, which falls thus of itself, though the legislator has not expressly abolished it,
It is plain, we have only glanced here upon the general principles. As for the application, that ought to be made of them, to each species of laws, it requires some modification, pursuant to their different nature. But it is not our business to enter here into those particulars.
XV. Law may be divided, 1. into divine or human, according as it has God or man for its author.
2. Divine law may be subdivided into two sorts, namely, natural, and positive or revealed.
Natural law is that, which so necessarily agrees with the nature and state of man, that without observing its maxims, the peace and happiness of society can never be preserved. As this law has an essential agreeableness with the constitution of human nature, the knowledge thereof may be attained merely by the light of reason; and hence it is called natural.
Positive or revealed law is that, which is not founded on the general constitution of human nature, but only on the will of God; though in other respects this law is established on very good reasons, and procures the advantage of those, who receive it.
We meet with examples of these two sorts of laws in the ordinances, which God gave formerly to the Jews. It is easy to distinguish such, as were natural, from those that, being merely ceremonial or political, had no other foundation, than the particular will of God, accommodated to the actual state of that people.
With regard to human laws, considered strictly as such, viz, as originally proceeding from a sovereign, who presides over society, they are all positive. For, though some natural laws are made the subject of human laws, they do not derive their obligatory force from the human legislator; since they would oblige all the same without any intervention on his part, because they come from God.
Before we leave these definitions, we must not forget to observe, that the science or art of making and explaining laws, add of applying them to human actions, goes by the general name of Jurisprudence.
1. See chap. viii. § 5.
2. See the law of Nature and Nations, book i. chap, vi. § 1.
3. See the Rights of War and Peace, book i. chap. i. § 9.
4. See the Law of Nature and Nations, book i. chap. vi. § 15.
5. See chap. viii. § 3.
6. See chap. viii. sect. 4.
7. Regula est, juris quidem ignorantiam cuique nocere. Digest. lib. 22. tit. 6. leg. 9. pr.
8. Ex quo etiam intelligitur omni legi civili annexam esse poenam, vel explicit , vel implicit ; nam ubi poena neque scripta, neque exemplo alicujus, qui poenas legis jam transgressµ dedit definitur, ibi subintelligitur poenam arbitrariam esse, nimirum ex arbitrio pendere legislatoris. Hobbes de Cive, cap. 14. § 8.
9. See Locke’s Essay on Human Understanding, book 2, chap. 28, § 6.
10. See Puffendorf, Law of Nature and Nations, book i. chap. vi. § 14. with Barbeyrac’s notes.