The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the legislative power, and the civil laws, which arise from it.
I. WE have hitherto explained what relates to the nature of civil society in general, of government, and of sovereignty, which is the soul of it. Nothing remains to compleat the plan we laid down, but more particularly to examine the different parts of sovereignty, as well those, which directly regard the internal administration of the state, as those, which relate to its interests abroad, or to its concerns with foreign powers, which will afford us an opportunity of explaining the principal questions relating to those subjects; and to this purpose we design this and the subsequent part.
II. Among the essential parts of sovereignty, we have given the first rank to the legislative power, that is to say, the right, which the sovereign has of giving laws to his subjects, and of directing their actions, or of prescribing the manner, in which they ought to regulate their conduct; and it is from this the civil laws are derived. As this right of the sovereign is as it were the essence of sovereignty, order requires that we should begin with the explication of whatever relates to it.
III. We shall not here repeat what we have elsewhere said of the nature of laws in general; but supposing the principles we have established on that head, we shall only examine the nature and extent of the legislative power in society, and that of the civil laws and decrees of the sovereign thence derived.
IV. Civil laws then are all those ordinances, by which the sovereign binds his subjects. The assemblage or body of those ordinances is what we call the Civil Law. In fine civil jurisprudence is that science or art, by which the civil laws are not only established, but explained in case of obscurity, and are properly applied to human actions.
V. The establishment of civil society ought to be fixed so, as to make a sure and undoubted provision for the happiness and tranquillity of man. For this purpose it was necessary to establish a constant order, and this could only be done by fixed and determinate laws.
VI. We have already observed, that it was necessary to take proper measures to render the laws of nature as effectual, as they ought to be, in order to promote the happiness of society; and this is effected by means of the civil laws.
For, 1. They serve to make the laws of nature better known.
2. They give them a new degree of force, and render the observance of them more secure, by means of their sanction, and of the punishments, which the sovereign inflicts on those, who despise and violate them.
3. There are several things, which the law of nature prescribes only in a general and indeterminate manner; so that the time, the manner, and the application to persons, are left to the prudence and discretion of every individual. It was however necessary, for the order and tranquillity of the state, that all this matter should be regulated; which is done by the civil laws.
4. They also serve to explain any obscurity, that may arise in the maxims of the law of nature.
5. They qualify or restrain, in various ways, the use of those rights, which every man naturally possesses.
6. Lastly they determine the forms, that are to be observed, and the precautions, which ought to be taken, to render the different engagements, that people enter into with each other, effectual and inviolable; and they ascertain the manner, in which a man is to prosecute his rights in the civil court.
VII. In order therefore to form a just idea of the civil laws, we must say, that, as civil society is no other, than natural society itself, qualified or restrained by the establishment of a sovereign, whose business it is to maintain peace and order; in like manner the civil laws are those of nature, perfected in a manner suitable to the state and advantages of society.
VIII. As this is the case, we may very properly distinguish two sorts of civil laws. Some are such with respect to their authority only, and others with regard to their original. To the former class we refer all the natural laws, which serve as rules in civil courts, and which are also confirmed by a new sanction of the sovereign. Such are all laws, which determine the crimes, that are to be punished by the civil justice; and the obligations, upon which an action may commence in the civil court, etc.
As to the civil laws, so called because of their original, these are arbitrary decrees, which, for their foundation, have only the will of the sovereign, and suppose certain human establishments; or which regulate things relating to the particular advantage of the state, though indifferent in themselves and undetermined by the law of nature. Such are the laws, which prescribe the necessary forms in contracts and testaments, the manner of proceeding in courts of justice, etc. But it must be observed, that all those regulations should tend to the good of the state, as well as of individuals; so that they are properly appendages to the law of nature.
IX. It is of great importance carefully to distinguish, in the civil laws, what is natural and essential in them, from what is only adventitious. Those laws of nature, the observance of which is essentially conducive to the peace and tranquillity of mankind, ought certainly to have the force of law in all states; neither is it in the power of the prince to abrogate them. As to the others, which do not so essentially interest the happiness of society, it is not always expedient to give them the force of law, because the controversies about the violation of them would often be very perplexed and intricate, and likewise lay a foundation for an infinite number of litigious suits. Besides, it was proper to give the good and virtuous an opportunity of distinguishing themselves by the practice of those duties, the violation of which incurs no human penalties.
X. What we have said of the nature of civil laws sufficiently shows, that though the legislative be a supreme, yet it is not an arbitrary power; but on the contrary, it is limited in several respects.
1. And as the sovereign holds the legislative power originally of the will of each member of the society, it is evident, that no man can confer on another a right, which he has not himself; and consequently the legislative power cannot be extended beyond this limit. The sovereign therefore can neither command nor forbid any other actions, than such as are either voluntary or possible.
2. Besides, the natural laws dispose of human actions antecedently to the civil laws, and men cannot recede from the authority of the former. Therefore as those primitive laws limit the power of the sovereign, he can determine nothing so as to bind the subject, contrary to what they either expressly command or forbid.
XI. But we must be careful not to confound two things entirely distinct, I mean the State of Nature and the Laws of Nature. The primitive and natural state of man may admit of different changes and modifications, which are left to the disposal of man, and have nothing contrary to his obligation and duties. In this respect, the civil laws may produce a few changes in the natural state, and consequently make some regulations, unknown to the law of nature, without containing any thing contrary to that law, which supposes the state of liberty in its full extent, but nevertheless permits mankind to limit and restrain that state, in the manner, which appears most to their advantage.
XII. We are however far from being of the opinion of those writers,1 who pretend that it is impossible the civil laws should be repugnant to that of nature, because, say they, there is nothing either just or unjust antecedently to the establishment of those laws. What we have above advanced, and the principles we have established in the whole course of this work, sufficiently evince the absurdity of this opinion.
XIII. It is as ridiculous to assert, that before the establishment of civil laws and society, there was no rule of justice, to which mankind were subject, as to pretend that truth and rectitude depend on the will of man, and not on the nature of things. It would have even been impossible for mankind to found societies of any durability, if, antecedently to those societies, there had been neither justice nor injustice, and if they had not, on the contrary, been persuaded, that it was just to keep their word, and unjust to break it.
XIV. Such in general is the extent of the legislative power, and the nature of the civil laws, by which that power exerts itself. Hence it follows, that the whole force of civil laws consists in two things, namely in their Justice and in their Authority.
XV. The authority of the laws consists in the force, given them by the person, who, being invested with the legislative power, has a right to enact those laws; and in the Divine Will, which commands us to obey him. With regard to the justice of civil laws, it depends on their relation to the good order of society, of which they are the rule, and on the particular advantage of establishing them according as different conjunctures may require.
XVI. And since the sovereignty, or right of commanding, is naturally founded on a beneficient Power, it necessarily follows that the Authority and Justice of laws are two characteristics essential to their nature, in default of which they can produce no real obligation. The power of the sovereign constitutes the authority of his laws, and his beneficience permits him to make none, but such as are conformable to equity.
XVII. However certain and incontestable these general principles may be, yet we ought to take care not to abuse them in the application. It is certainly essential to every law, that, it be equitable and just; but we must not thence conclude, that private subjects have a right to refuse obedience to the commands of the sovereign, under a pretence, that they do not think them altogether just. For, besides that some allowance is to be made for human infirmity, the opposing the legislative power, which constitutes the whole safety of the public, must evidently tend to the subversion of society; and subjects are obliged to suffer the inconveniences, which may arise from some unjust laws, rather than expose the state to ruin by their disobedience.
XVIII. But if the abuse of the legislative power proceeds to excess, and to the subversion of the fundamental principles of the laws of nature, and of the duties, which it enjoins, it is certain that, under such circumstances, the subjects are, by the laws of God, not only authorized, but even obliged to refuse obedience to all laws of this kind.
XIX. But this is not sufficient. That the laws may be able to impose a real obligation, and reckoned just and equitable, it is necessary the subjects should have a perfect knowledge of them; now they cannot of themselves know the civil laws, at least those of an arbitrary nature; these are in some measure facts of which the people may be ignorant. The sovereign ought therefore to declare his will, and to administer laws and justice, not by arbitrary and hasty decrees, but by mature regulations, duly promulgated.
XX. These principles furnish us with a reflection of great importance to sovereigns. Since the first quality of laws is, that they be known, sovereigns ought to publish them in the clearest manner. In particular it is absolutely necessary, that the laws be written in the language of the country; nay, it is proper that public professors should not use a foreign language in their lectures on jurisprudence. For what can be more repugnant to the principle, which directs, that the laws should be perfectly known, than to make use of laws, written in a dead language, which the generality of the people do not understand, and to render the knowledge of those laws attainable only in that language? I cannot help saying, that this is an absurd practice, equally contrary to the glory of sovereigns, and to the advantage of subjects.
XXI. If we therefore suppose the civil laws to be accompanied with conditions abovementioned, they have certainly the force of obliging the subjects to observe them. Every individual is bound to submit to their regulations so long, as they include nothing contrary to the divine law, whether natural or revealed; and this not only from a dread of the punishments, annexed to the violation of them, but also from a principle of conscience, and in consequence of a maxim of natural law, which commands us to obey our lawful sovereign.
XXII. In order rightly to comprehend this effect of the civil laws, it is to be observed, that the obligation, which they impose, extends not only to external actions, but also to the inward sentiments. The sovereign, by prescribing laws to his subjects, proposes to render them wise and virtuous. If he commands a good action, he is willing it should be done from principle; and when he forbids a crime, he not only prohibits the external action, but also the design or intention.
XXIII. In fact man, being a free agent, is induced to act only in consequence of his judgment, by a determination of his will. As this is the case, the most effectual mean, which the sovereign can employ to procure the public happiness and tranquillity, is to work upon the mind, by disposing the hearts of his subjects to wisdom and virtue.
XXIV. Hence it is, that public establishments are formed for the education of youth. Academies and professors are appointed for this purpose. The end of these institutions is to inform and instruct mankind, and to make them early acquainted with the rules of a happy and virtuous life. Thus the sovereign, by means of instruction, has an effectual method of instilling just ideas and notions into the minds of his subjects; and by these means his authority has a very great influence upon the internal actions, the thoughts, and inclinations of those, who are subjected to the direction of his laws, so far at least, as the nature of the thing will permit.
XXV. We shall close this chapter with the discussion of a question, which naturally presents itself in this place.
Some ask whether a subject can innocently execute the unjust commands of a sovereign, or if he ought not rather to refuse absolutely to obey him, even at the hazard of his life? Puffendorf seems to answer this question with a kind of hesitation, but at length he declares for the opinion of Hobbes in the following manner. We must distinguish, says he, whether the sovereign commands us in our own name to do an unjust action, which may be accounted our own; or whether he orders us to perform it in his name, as instruments in the execution of it, and as an action which he accounts his own. In the latter case, he pretends, that we may without scruple execute the action, ordered by the sovereign, who is then to be considered as the only author of it. Thus, for example, soldiers ought to execute the orders of their prince, because they do not act in their own name, but as instruments and in the name of their master. But, on the contrary, it is never lawful to do in our name an action, that our conscience tells us is unjust or criminal. Thus for instance a judge, whatever orders he may have from the prince, ought never to condemn an innocent person, nor a witness depose against the truth.
XXVI. But, in my opinion, this distinction does not remove the difficulty; for in whatever manner we pretend that a subject acts in those cases, whether in his own name, or in that of his prince, his will concurs in some manner or other to the unjust and criminal action, which he executes by order of the sovereign. We must therefore impute either both actions partly to him, or else neither in any degree.
XXVII. The surest way then is to distinguish between a case, where the prince commands a thing evidently unjust, and where the matter is doubtful. As to the farmer, we must generally, and without any restriction, maintain, that the greatest menaces ought never to induce us. even by the order and in the name of the sovereign, to do a thing, which appears to us evidently unjust and criminal; and though we may be very excusable in the sight of man for having been overcome by such a severe trial, yet we shall not be so before the Divine tribunal.
XXVIII. Thus a parliament, for instance, commanded by the prince to register an edict manifestly unjust, ought certainly to refuse it. The same I say of a minister of state, whom a prince would oblige to execute a tyrannical or iniquitious order; of an ambassador, whose master gives him instructions contrary to honor and justice; or of an officer, whom the sovereign should command to kill a person, whose innocence is as clear as noonday. In those cases we should nobly exert our courage, and with all our might resist injustice, even at the peril of our lives. It is better to obey God than man. For in promising obedience to the sovereign, we could never do it but on condition, that he should not order any thing manifestly contrary to the laws of God, whether natural or revealed. To this purpose there is a beautiful passage in a tragedy written by Sophocles. “I did not believe,” says Antigone to Creon king of Thebes, “that the edicts of a mortal man, as you are, could be of such force, as to supersede the laws of the gods themselves, laws not written indeed, but certain and immutable; for they are not of yesterday or today, but established perpetually and forever, and no one knows when they began. I ought not therefore, for fear of any man, to expose myself, by violating them, to the punishment of the gods.”2
XXIX. But, in cases where the matter is doubtful, the best resolution is certainly to obey. The duty of obedience, being a clear obligation, ought to supersede all doubt. Otherwise, if the obligation of the subjects to comply with the commands of their sovereign permitted them to suspend their obedience, till they were convinced of the justice of his commands; this would manifestly annihilate the authority of the prince, and subvert all order and government. It would be necessary, that soldiers, executioners, and other inferior officers of court, should understand politics and the civil law, otherwise they might excuse themselves from their duty of obedience, under the pretence, that they are not sufficiently convinced of the justice of the orders given them; and this would render the prince incapable of exercising the functions of government. It is therefore the duty of the subject to obey in those circumstances; and if the action be unjust in itself, it cannot be imputed to him, but the whole blame falls on the sovereign.
XXX. Let us here collect the principal views, which the sovereign ought to have in the enacting of laws.
1. He should pay a regard to those primitive rules of justice, which God himself has established, and take care, that his laws be perfectly conformable to those of the Deity.
2. The laws should be of such a nature, as to be easily followed and observed. Laws, too difficult to be put in execution, are apt to shake the authority of the magistrate, or to lay a foundation for insurrections.
3. No laws ought to be made in regard to useless and unnecessary things.
4. The laws ought to be such, that the subjects may be inclined to observe them rather of their own accord, than through necessity. For this reason the sovereign should only make such laws, as are evidently useful; or at least he should explain and make known to the subjects the reason and motives, that have induced him to enact them.
5. He ought not to be easily persuaded to change the established laws. Frequent changes in the laws certainly lessens their authority, as well as that of the sovereign.
6. The prince ought not to grant dispensations without very good reason; otherwise he weakens the laws, and lays a foundation for jealousies, which are ever prejudicial to the state and to individuals.
7. Laws should be so contrived, as to be assisting to each other, that is to say, some should be preparatory to the observance of others, in order to facilitate their execution. Thus, for example, the sumptuary laws, which prescribe bounds to the expences of the subject, contribute greatly to the execution of those ordinances, which impose taxes and public contributions.
8. A prince, who would make new laws, ought to be particularly attentive to time and conjunctures. On this principally depends the success of a new law, and the manner, in which it is received.
9. In fine, the most effectual step a sovereign can take to enforce his laws is to conform to them himself, and to show the first example, as we have before observed.
2. Sophocl. Antigon. ver. 473, etc.