The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the right of congruity or fitness with regard to the institutions of civil society, and the necessity of a supreme authority; of civil liberty.
I. WE are here to inquire, whether the establishment of civil society, and of a supreme authority, was absolutely necessary to mankind, or whether they could not live happy without it? And whether sovereignty, whose original is owing perhaps to usurpation, ambition, and violence, does not include an attempt against the natural equality and independency of man? These are without doubt questions of importance, and which merit the utmost attention.
II. I grant, at first setting out, that the primitive and original society, which nature has established amongst mankind, is a state of equality and independence; it is likewise true, that the law of nature is that, to which all men are obliged to conform their actions; and in fine it is certain, that this law is in itself most perfect, and the best adapted for the preservation and happiness of mankind.
III. It must likewise be granted, that if mankind, during the time they lived in natural society, had exactly conformed to nature’s laws, nothing would have been wanting to complete their happiness, nor would there have been any occasion to establish a supreme authority upon earth. They would have lived in a mutual intercourse of love and beneficence, in a simplicity without state or pomp, in an equality without jealousy, strangers to all superiority, but that of virtue, and to every other ambition, than that of being disinterested and generous.
IV. But mankind were not long directed by so perfect a rule; the vivacity of their passions soon weakened the force of nature’s law, which ceased now to be a bridle sufficient for them, so that they could no longer be left to themselves thus weakened and blinded by their passions. Let us explain this a little more particularly.
V. Laws are incapable of contributing to the happiness of society, unless they be sufficiently known. The laws of nature cannot be known otherwise to man, than as he makes a right use of his reason; but as the greatest part of mankind, abandoned to themselves, listen rather to the prejudices of passion than to reason and truth, it thence follows, that, in the state of natural society, the laws of nature were known but very imperfectly, and consequently, that, in this condition of things, man could not lead a happy life.
VI. Besides, the state of nature wanted another thing, necessary for the happiness and tranquillity of society, I mean a common judge, acknowledged as such, whose business it is to decide the differences, that every day arise betwixt individuals.
VII. In this state, as every one would be supreme arbiter of his own actions, and would have a right of being judge himself both of the laws of nature and of the manner, in which he ought to apply them, this independence and excessive liberty could not but be productive of disorder and confusion, especially in cases, where there happened to be any clashing of interests or passions.
VIII. In fine, as in the state of nature no one had a power of enforcing the execution of the laws, nor an authority to punish the violation of them, this was a third inconveniency of the state of primitive society, by which the efficacy of natural laws was almost entirely destroyed. For, as men are framed, the laws derive their greatest force from the coercive power, which by exemplary punishments, intimidates the wicked, and balances the superior force of pleasure and passion.
IX. Such were the inconveniences, that attended the state of nature. By the excessive liberty and independence, which mankind enjoyed, they were hurried into perpetual troubles; for which reason they were under an absolute necessity of quitting this state of independence, and of seeking a remedy against the evils, of which it was productive; and this remedy they found in the establishment of civil society and a sovereign authority.
X. But this could not be obtained without effecting two things equally necessary; the first was to unite together by means of a more particular society; the second, to form this society under the dependance of a person, invested with an uncontrolable power, to the end, that he might maintain order and peace.
XI. By these means they remedied the inconveniences abovementioned. The sovereign, by promulgating his laws, acquaints his subjects with the rules, which they ought to follow. We then cease to be judges in our own cause, our whims and passions are checked, and we are obliged to contain ourselves within the limits of that regard and respect, which we owe to each other.
XII. This might be sufficient to prove the necessity of government, and of a supreme authority in society, and to establish the right of congruity or fitness in this respect; but, as it is a question of the utmost importance; as mankind have a particular interest in being well acquainted with their state; as they have a natural passion for independence, and generally frame false notions of liberty; it will not be improper to continue our reflections on this subject.
XIII. Let us therefore examine into natural and civil liberty; let us afterwards endeavour to show, that civil liberty is far preferable to that of nature, and consequently, that the state, which it produces, is of all human conditions the most perfect, and, to speak with exactness, the true natural state of man.
XIV. The reflections we have to make upon this subject are of the last importance, affording useful lessons both to princes and subjects. The greatest part of mankind are strangers to the advantages of civil society, or at least they live in such a manner, as to give no attention to the beauty or excellence of this salutary institution. On the other hand, princes often lose sight of the end, for which they were appointed, and instead of thinking that the supreme authority was established for no other purpose, than for the maintenance and security of the liberty of mankind, that is, to make them enjoy a solid happiness, they frequently direct it to a different end, and to their own private advantage. Nothing therefore is more necessary, than to remove the prejudices both of sovereigns and subjects in regard to this article.
XV. Natural liberty is the right, which nature gives to all mankind, of disposing of their persons and property, after the manner they judge most convenient to their happiness, on condition of their acting within the limits of the law of nature, and of their not abusing it to the prejudice of other men. To this right of liberty there is a reciprocal obligation corresponding, by which the law of nature binds all mankind to respect the liberty of other men, and not to disturb them in the use they make of it, so long as they do not abuse it.
XVI. The laws of nature are therefore the rule and measure of liberty; and, in the primitive and natural state, mankind have no liberty but what the laws of nature give them; for which reason it is proper to observe here, that the state of natural liberty is not that of an intire independence. In this state men are indeed independent with regard to one another, but they are all in a state of dependance on God and his laws. Independence, generally speaking, is a state unsuitable to man, because by his very nature he holds it of a superior.
XVII. Liberty and independence of any superior are two very distinct things, which must not be confounded. The first belongs essentially to man, the other cannot suit him. And so far is it from being true, that human liberty is of itself inconsistent with dependance on a sovereign and submission to his laws, that, on the contrary, it is this power of the sovereign, and the protection, which men derive from it, that forms the greatest security of their liberty.
XVIII. This will be still better understood by recollecting what we have already settled, when speaking of natural liberty. We have shown that the restrictions, which the law of nature makes to the liberty of man, far from diminishing or subverting it, on the contrary constitutes its perfection and security. The end of natural laws is not so much to restrain the liberty of man, as to make him act agreeably to his real interests; and moreover, as these very laws are a check to human liberty, in whatever may be of pernicious consequence to others, it secures, by these means, to all mankind the highest and the most advantageous degree of liberty, they can reasonably desire.
XIX. We may therefore conclude, that in the state of nature man could not enjoy all the advantages of liberty, but Inasmuch as this liberty was made subject to reason, and the laws of nature were the rule and measure of the exercise of it. But if it be true in fact, that the state of nature was attended with the several inconveniences already mentioned, inconveniences, which almost effaced the impression and force of natural laws, it is a plain consequence, that natural liberty must have greatly suffered thereby, and that by not being restrained within the limits of the law of nature, it could not but degenerate into licentiousness, and reduce mankind to the most frightful and the most melancholy of situations.
XX. As they were perpetually divided by contentions, the strongest oppressed the weakest; they possessed nothing with tranquillity, they enjoyed no repose; and what we ought particularly to observe is, that all these evils were owing chiefly to that very independence, which mankind were possessed of in regard to each other, and which deprived them of all security of the exercise of their liberty; insomuch that, by being too free, they enjoyed no freedom at all; for freedom there can be none, when it is not subject to the direction of laws.
XXI. If it be therefore true, that the civil state gives a new force to the laws of nature, if it be true also, that the establishment of sovereignity secures, in a more effectual manner, the observance of those laws, we must conclude, that the liberty, which man enjoys In this state, is far more perfect, more secure, and better adapted to procure his happiness, than that, which he was possessed of in the state of nature.
XXII. True it is, that the institution of government and sovereignty is a considerable limitation to natural liberty, for man must renounce that power of disposing of his own person and actions, in a word, his independence. But what better use could mankind make of their liberty, than to renounce every dangerous tendency it had in regard to themselves, and to preserve no more of it, than was necessary to procure their own real and solid happiness?
XXIII. Civil liberty is therefore, in the main, nothing more than natural liberty, divested of that part of it, which formed the independence of individuals, by the authority, which they have conferred on their sovereign.
XXIV. This liberty is still attended with two considerable advantages, which natural liberty had not. The first is the right of insisting, that their sovereign shall make good use of his authority, agreeably to the purposes, for which he was intrusted with it. The second is the security, which prudence requires, that the subjects should reserve to themselves for the execution of their former right, a security absolutely necessary, and without which the people can never enjoy any solid liberty.
XXV. Let us therefore conclude, that, to give an adequate definition of civil liberty, we must say, that it is natural liberty itself, divested of that part, which constituted the independence of individuals, by the authority, which it confers on sovereigns, and attended with a right of insisting on his making a good use of his authority, and with a moral security, that this right will have its effect.
XXVI. Since civil liberty therefore is far preferable to that of nature, we may safely conclude, that the civil state, which procures this liberty to mankind, is of all human states the most perfect, the most reasonable, and of course the true natural state of man.
XXVII. And indeed, since man, by his nature, is a free and intelligent being, capable of discovering his state by himself, as well as its ultimate end, and of taking the necessary measures to attain it, it is properly in this point of view, that we must consider his natural state, that is, the natural state of man must be that, which is most agreeable to his nature, to his constitution, to reason, to the good use of his faculties, and to his ultimate end; all which circumstances perfectly agree with the civil state. In short, as the institution of government and supreme authority brings men back to the observance of the laws of nature, and consequently to the road of happiness, it makes them return to their natural state, from which they had strayed by the bad use, which they made of their liberty.
XXVIII. The reflections we have here made on the advantages, which men derive from government, deserve very great attention.
1. They are extremely proper for removing the false notions, which most people have upon this subject; as if the civil state could not he established but in prejudice to their natural liberty; and as if government had been invented only to satisfy the ambition of designing men, contrary to the interest of the rest of the community.
2. They inspire mankind with a love and respect for so salutary an institution, disposing them thus to submit voluntarily to whatever the civil society requires of them, from a conviction, that the advantages thence derived are very considerable.
3. They may likewise tend greatly to increase the love of one’s country, the first seeds of which nature herself has implanted, as it were, in the hearts of all mankind, in order to promote, as it most effectually does, the happiness of society. Sextus Emplricus relates, “that it was a custom among the ancient Persians, upon the death of a king, to pass five days in a state of anarchy, as an inducement to be more faithful to his successor, from the experience they acquired of the inconveniences of anarchy, of the many murders, robberies, and every other mischief, with which it is pregnant.”1
XXIX. As these reflections are proper for removing the prejudices of private people, so they likewise contain most excellent instructions even for sovereigns. For is there any thing better adapted for making princes sensible of the full extent of their duty, than to reflect seriously on the ends, which the people proposed to themselves, in entrusting them with their liberty, that is, with whatever is most valuable to them; and on the engagements into which they entered, by charging themselves with so sacred a deposit? When mankind renounced their independence and natural liberty, by giving masters to themselves, it was in order to be sheltered from the evils, with which they were afflicted, and in hopes, that, under the protection and care of their sovereign, they should meet with solid happiness. Thus have we seen, that by civil liberty mankind acquired a right of insisting upon their sovereign’s using his authority agreeable to the design, with which he was entrusted with it, which was to render their subjects wise and virtuous, and thereby to promote their real felicity. In a word, whatever has been said concerning the advantages of the civil state, in preference to that of nature, supposes this state in its due perfection; and that both subjects and sovereign discharge their duties towards each other.
1. Advers. Mathemat. lib. 2. sect. 33. Vid. Herodot. lib. I. cap. 96, & seq.