The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Containing a few general and preliminary reflections, which serve as an introduction to this and the following parts.
I. WHATEVER has been hitherto explained, concerning the rights and duties of man, relates to the natural and primitive society, established by God himself, independent of human institution. We must now treat of civil society, or the body politic, which is deservedly esteemed the completest of societies, and to which the name of State has been given by way of preference.
II. For this purpose we shall repeat here the substance of some principles, established in the preceding volume, and we shall give a further explication of others relative to this subject.
1. Human society is originally and in itself a state of equality and independence.
2. The institution of sovereignty destroys this independence.
3. This institution does not subvert natural society.
4. On the contrary it contributes to strengthen and cement it.
III. To form therefore a just idea of civil society we mast call it natural society itself, modified in such a manner, that there is a sovereign presiding over it, on whose will whatever relates to the welfare of the society ultimately depends; to the end that, by these means mankind may attain, with greater certainty, that happiness, to which they all naturally aspire.
IV. The institution of civil societies produces some new relations amongst mankind; I mean such as subsist between those different bodies or communities, which are called states or nations, from which the law of nations and civil polity are derived.
V. In fact so soon as states are formed, they acquire, in some measure, personal properties; and consequently we may attribute the same rights and obligations to them, as are attributed to individuals, considered as members of society. And indeed it is evident, that, it reason imposes certain duties on individuals towards each other, it prescribes likewise those very same rules of conduct to nations, (which are composed only of men) in the intercourse, which they may have with each other.
VI. We may therefore apply to kingdoms and nations the several maxims of natural law, hitherto explained; and the same law, which is called natural when speaking of individuals, is distinguished by the name of the law of nations, when applied to men, considered as members forming those different bodies, known by the name of states or nations.
VII. To enter into this subject we must observe, that the natural state of nations, with respect to each other, is that of society and peace. This society is likewise a state of equality and independence, which establishes between them a right of equality, by which they are obliged to have the same regard for each other. The general principle therefore of the law of nations is nothing more than the general law of sociability, which obliges nations to the same duties, as are prescribed to individuals.
VIII. Thus the law of natural equality, that which prohibits our injuring any person, and commands the reparation of damage done, the law likewise of beneficence, of fidelity to our engagements, etc. are so many laws in regard to nations, which impose both on the people and on their respective sovereigns the same duties, as are prescribed to individuals.
IX. It is a point of some importance to attend to the nature and origin of the law of nations, such as hath been here explained; for it follows thence, that the law of nations is of equal authority with the law of nature itself, of which it constitutes a part, and that they are equally sacred and venerable, since both have the Deity for their author.
X. There cannot even be any other law of nations really obligatory, and intrinsically invested with the force of a law. For, since all nations are in respect to each other in a state of perfect equality, it is beyond contradiction, that, if there be any common law betwixt them, it must necessarily have God, their common sovereign, for its author.
XI. As to what concerns the tacit consent or customs of nations, on which some doctors establish a law of nations, they cannot of themselves produce a real obligation. For from this only, that several nations have behaved towards each other for some time after a certain manner, it does not follow, that they have laid themselves under a necessity of acting constantly so for the future, and much less, that every other nation is obliged to conform to this custom.
XII. All that can be said is, that, when once a particular usage or custom is introduced between nations, that have a frequent intercourse with each other, these nations are, and may reasonably be supposed to submit to this usage, unless they have in express terms declared, that they will not conform to it any longer; and this is all the effect, that can be attributed to the received usages between nations.
XIII. This being premised, we may distinguish two sorts of laws of nations, one necessary, which is obligatory of itself, and no way differs from the law of nature; the other arbitrary and free, founded only on a kind of tacit convention, and deriving all its force from the law of nature, which commands us to be faithful to our engagements.
XIV. What has been said concerning the law of nations furnishes princes with several important reflections, among others, that since the law of nations is in reality nothing else, but the law of nature itself, there is but one and the same rule of justice for all mankind; insomuch that those princes, who violate them, are guilty of as great a crime, as private people; especially as their wicked actions are generally attended with more unhappy consequences, than those of private people.
XV. Another consequence, that may be drawn from the principles we have established, relating to the law of nature and nations, is to form a just idea of that science so necessary to the directors of nations, which is called Policy. By policy therefore is meant that knowledge or ability, by which a sovereign provides for the preservation, security, prosperity, and glory of the nation he governs, without doing any prejudice to other people, but rather consulting their advantage, as much as possible.
XVI. In short that, which is called prudence, in respect to private persons, is distinguished by the name of policy, when applied to sovereigns; and as that mischievous ability, by which a person seeks his own advantage to the detriment of others, and which is called artifice or cunning, is deserving of censure in individuals, it is equally so in those princes, whose policy aims at procuring the advantage of their own nation, to the prejudice of what they owe to other people, in virtue of the laws of humanity and justice.
XVII. From what has been said of the nature of civil society in general, it is easy to comprehend, that, among all human institutions, there is none more considerable than this; and that, as it embraces whatever is interesting to the happiness of society, it is a very extensive subject, and consequently that it is important alike both to princes and people to have proper instructions upon this head.
XVIII. That we may reduce the several articles relative to this matter into some order, we shall divide our work into four parts.
The first will treat of the origin and nature of civil societies, of the manner, in which states are formed, of sovereignty in general, its proper characteristics, its limitations and essential parts.
In the second we shall explain the different forms of government, the various ways of acquiring or losing sovereignty, and the reciprocal duties of sovereigns and subjects.
The third will contain a more particular inquiry into those essential parts of sovereignty, which are relative to the internal administration of the state, such as the legislative power, the supreme power in respect to religion, the right of inflicting punishments, that, which the sovereign has over the estates and effects, contained in his dominions, etc.
In the fourth in fine we shall explain the rights of sovereigns with regard to foreigners, where we shall treat of the right of war, and of whatever is relative to that subject, of alliances, and other public treaties, and likewise of the rights of ambassadors.