The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the merit and demerit of human actions; and of their imputation relative to the laws of nature.1
I. IN explaining the nature of human actions, considered with regard to right,2 we observed, that an essential quality of these actions is to be susceptible of imputation; that is, the agent may be reasonably looked upon, as the real author thereof, may have it charged to his account, and be made answerable for it; insomuch that the good or bad effects, thence arising, may be justly attributed and referred to him, as to the efficient cause, concerning which we have laid down this principle, that every voluntary action is of an imputable nature.
We give in general the name of moral cause of an action to the person, who produced it, either wholly or in part, by a determination of his will; whether he executes it himself physically and immediately, so as to be author thereof, or whether he procure it by the act of some other person, and becomes thereby its cause. Thus whether we wound a man with our own hands, or set assassins to waylay him, we are equally the moral cause of the evil thence resulting.
It was observed likewise that we must not confound the imputability of human actions with their actual imputation. The former, as has been just now mentioned, is a quality of the action; the latter is an act of the legislator, or judge, who lays to a person’s charge an action, that is of an imputable nature.
[Of the nature of imputation. It supposes a knowledge of the law, as well as of the fact.]
II. Imputation is properly therefore a judgment, by which we declare, that a person being the author or moral cause of an action commanded or forbidden by the laws, the good or bad effects, that result from this action, ought to be actually attributed to him; that he is consequently answerable for them, and as such is worthy of praise or blame, of recompense or punishment.
This judgment of imputation, as well as that of conscience, is made by applying the law to the action, and comparing one with the other, in order to decide afterwards the merit of the fact, and to make the author consequently feel the good or evil, the punishment or recompense, which the law has thereto annexed. All this necessarily supposes an exact knowledge of the law and of its right sense, as well as of the fact and such circumstances thereof, as may any way relate to the determination of the law. A want of this knowledge must render the application false, and the judgment erroneous.
III. Let us produce a few examples. One of the Horatii, who remained conqueror in the. combat between the brothers of this name and the three Curiatii, inflamed with anger against his sister, for bewailing the death of one of the Curiatii, her lover, and for bitterly reproaching him therewith, instead of congratulating him for his victory, slew her with his own hand. He was accused before the Duumvirs; and the question was, whether the law against murderers ought to be applied in the present case, in order to make him undergo the punishment? This was the opinion of the judges, who in fact condemned the young Roman. But an appeal being made to the people, they judged quite otherwise. Their notion was, that the law ought not to be applied to the fact; because a Roman lady, who seemed to be more concerned about her own particular interest, than sensible of the good of her country, might in some measure be considered and treated, as an enemy; wherefore they pronounced the young man innocent. Let us add another example of an advantageous imputation, or of a judgment of recompense. Cicero, in the beginning of his consulate, discovered the conspiracy of Cataline, which menaced the republic with ruin. In this delicate conjuncture he behaved with so much prudence and address, that the conspiracy was stifled without any noise or sedition, by the death of a few of the criminals. And yet J. Cæsar, and some other enemies of Cicero, accused him before the people for having put citizens to death contrary to rule, and before the senate or people had passed judgment against them. But the people, attending to the circumstances of the fact, to the danger the republic had escaped, and to the important service Cicero had done, so far from condemning him as an infringer of the laws, decreed him the glorious tide of father of his country.
IV. In order to settle the principles and foundations of this matter, we must observe, 1. That we ought not to conclude the actual imputation of an action merely from its imputability. An action, to merit actual imputation, must necessarily have the concurrence of these two conditions; first that it be of an imputable nature, and secondly that the agent be under some obligation of doing or omitting it. An example will clear up the thing. Let us suppose two young men with the same abilities and conveniencies, but under no obligation of knowing algebra; one of them applies himself to this science, and the other does not; though the action of the one and the other’s omission are by themselves of an imputable nature, yet in this case they can be neither good nor bad. But were we to suppose, that these two young men were designed by their prince, the one for some office of state, and the other for a military employment; in this case their application or neglect in instructing themselves in jurisprudence, for example, or in the mathematics, would be justly imputed to them. The reason is, they are both indispensably obliged to acquire such knowledge, as necessary for discharging properly the offices or employments, to which they are called. Hence it is evident, that, as imputability supposeth the power of acting or not acting, actual imputation requires moreover, that a person be under an obligation of doing either one or the other.
V. 2. When we impute an action to a person, we render him, as has been already observed, answerable for the good or bad consequences of what he has done. Hence it follows, that, in order to make a just imputation, there must be some necessary or accidental connexion between the thing done or omitted, and the good or bad consequences of the action or omission; and besides, the agent must have had some knowledge of this connexion, or at least he must have been able to have a probable foresight of the effects of his action. Otherwise the imputation cannot take place, as will appear by a few examples. A gunsmith sells arms to a man, who has the appearance of a sensible, sedate person, and does not seem to have any bad design. And yet this man goes instantly to make an unjust attack on another person, and kills him. Here the gunsmith is not at all chargeable, having done nothing, but what he has a right to do; and besides he neither could nor ought to have foreseen what happened. But if a person carelessly leave a pair of pistols charged on the table, in a place exposed to every body, and a child, insensible of the danger, happens to wound or kill himself; the former is certainly answerable for the misfortune; by reason this is a clear and immediate consequence of what he has done, and he could and ought to have foreseen it.
We must reason in the same manner with respect to an action productive of some good. This good cannot be attributed to a person, who has been the cause of it without knowledge or thought thereof. But, in order to merit thanks and acknowledgment, there is no necessity of our being entirely sure of success; it is sufficient there was room to reasonably presume it, and, were the effect absolutely to fail, the intention would not be the less commendable.
VI. 3. But, in order to ascend to the first principles of this theory, we must observe, that, as man is supposed to be obliged by his nature and state to follow certain rules of conduct, the observance of those rules constitutes the perfection of his nature and state; and, on the contrary, the infringing of them forms the degradation of both. Now we are made after such a manner, that perfection and order please us of themselves; while imperfection and disorder, and whatever relates thereto, naturally displease us. Consequently we acknowledge, that those, who, answering the end they were designed for, perform their duty, and contribute thus to the good and perfection of the human system, are deserving of our approbation, esteem, and benevolence; that they may reasonably expect these sentiments in their favor, and have some sort of right to the advantageous effects, which naturally arise from them. We cannot, on the contrary, avoid condemning those, who, through a bad use of their faculties, degrade their own state and nature; we confess they are worthy of disapprobation and blame, and that it is agreeable to reason, the bad effects of their conduct should fall upon themselves. Such are the foundations of merit and demerit.
VII. Merit therefore is a quality, which entitles us to the approbation, esteem, and benevolence of our superiors or equals, and to the advantages thence resulting. Demerit is an opposite quality, which, rendering us worthy of the censure and blame of those, with whom we converse, obliges us as it were to acknowledge, that it is reasonable they should entertain those sentiments towards us; and that we are under a melancholy obligation of bearing the bad effects, that flow from them.
These notions of merit and demerit have therefore, it is plain, their foundation in the very nature of things; and are perfectly agreeable to common sense and the notions generally received. Praise and blame, where people judge reasonably, always follow the quality of actions, according as they are morally good or bad. This is clear with respect to the legislator; he must contradict himself in the grossest manner, were he not to approve what is conformable, and to condemn what is opposite to his laws. And as for those, that depend on him, this very dependance obliges them to regulate their judgment on this subject.
VIII. 4. We have already observed,3 that some actions are better than others, and that bad ones may likewise be more or less so, according to the different circumstances, that attend them, and the disposition of the person, that does them. Merit and demerit have therefore their degrees; they may be greater or less. Wherefore when we are to determine exactly how far an action ought to be imputed to a person, we should have regard to these differences; and the praise or blame, the recompense or punishment, ought likewise to have their degrees in proportion to the merit or demerit. Thus, according as the good or evil proceeding from an action is more or less considerable; according as there was more or less facility or difficulty to perform or to abstain from this action; according as it was done with more or less reflection and liberty; and finally according as the reasons, that ought to have determined us thereto, or diverted us from it, were more or less strong, and the intention and motives were more or less noble and generous; the imputation is made after a more or less efficacious manner, and its effects are more or less profitable or pernicious.
IX. 5. Imputation, as we have already hinted, may be made by different persons, and it is easy to comprehend, that, in those different cases, the effects thereof are not always the same; but that they must be more or less important, according to the quality of the persons, and the different right they have in this respect. Sometimes imputation is confined simply to praise or blame; and at other times it goes further. This gives its room to distinguish two sorts of imputation, one simple, aid the other efficacious. The first consists only in approving or disapproving the action; insomuch that no other effect arises from it with regard to the agent. But the second is not confined to blame or praise; it produces moreover some good or bad effect with regard to the agent, that is, some teal and positive good or evil, that befals him.
X.6. Simple imputation may be made indifferently by all, whether they have or have not a particular and personal interest in the doing or omitting of the action; it is sufficient they have a general and indirect interest. And as we may affirm, that all the members of society are interested in the due observance of the laws of nature, hence they have all a right to praise or condemn another man’s actions, according as they are conformable or contrary to those laws. They have even a kind of obligation in this respect. The regard, they owe to the legislator and his laws, requires it of them; and they would be wanting in their duty to society and to individuals, were they not to testify, at least by their approbation or censure, the esteem they have for probity and virtue, and their aversion, on the contrary, to iniquity and vice.
But with regard to efficacious imputation, in order to render it lawful, we should have a particular and direct interest in the performing or omitting of the action. Now those, who have such an interest, are firstly persons, whom it concerns to regulate the actions; secondly such, as are the object thereof, namely those, towards whom we act, and to whose advantage or prejudice the thing may turn. Thus a sovereign, who has enacted laws, who commands certain things with a promise of recompense, and prohibits others under a commination of punishment, ought without doubt to concern himself about the observance of his laws, and has consequently a right to impute the actions of his subjects after an efficacious manner, that is, to reward or punish them. The same may be said of a person, who has received some injury or damage by another man’s action, this very thing gives him a right to impute the action efficaciously to its author, in order to obtain a just satisfaction, and a reasonable indemnification.
XI. 7. It may therefore happen, that several persons have a right to impute, each on his side, the same action to the person, who did it; because this action may interest them in different respects. And, in that case, if any of the persons concerned has a mind to relinquish his right, by not imputing the action to the agent, so far as it concerns himself; this does not in any shape prejudice the right of the rest, which is no way in his power. When a man does me an injury, I may indeed forgive him, as to what concerns myself; but this does not diminish the right the sovereign may have to take cognizance of the injury, and to punish the author, as an infringer of the law, and a disturber of the civil order and government. But if all those, who are interested in the action, are willing not to impute it, and jointly forgive the injury and the crime; in this case the action ought to be morally esteemed, as never committed, because it is not attended with any moral effect.
XII. 8. Let us in fine observe, that there is some difference between the imputation of good and bad actions. When the legislator has established a certain recompense for a good action, he obliges himself to give this recompense, and he grants a right of demanding it to those, who have rendered themselves worthy thereof by their submission and obedience. But with respect to penalties, enacted against bad actions, the legislator may actually inflict them, if he has a mind, and has an incontestable right to do it; insomuch that the criminal cannot reasonably complain of the evil, he is made to undergo, because he has drawn it upon himself through his disobedience. But it does not thence ensue, that the sovereign is obliged to punish to the full rigour, he is always master to exercise his right, or to show grace; to entirely remit, or to diminish the punishment, and he may have very good reasons for doing either.
1. See on this and the following chapter, Puffendorf’s Law of Nature and Nations, book i. chap. v. and chap. ix.
2. Part i. chap. iii.
3. Part i. chap. xi. sect. 12.