On The Duty of Man and Citizen
According to the Natural Law (1673)
Samuel von Pufendorf
On Mutual Duties, and First, That of Not Injuring Others
1. Next come the duties which a man must practice toward other men. Some of them spring from the common obligation, by which the Creator willed that all men as such should be bound together. But some flow from a definite institution, introduced or received by men, or from a certain adventitious status of men. The first are to be practiced by every man toward every other; the second only toward certain persons, a certain condition or status being assumed. Hence one may call the former absolute duties, the latter conditional.
2. Among the absolute duties, i.e., of anybody to anybody, the first place belongs to this one: let no one injure another. For this is the broadest of all duties, embracing all men as such. It is also the easiest, as consisting in mere refraining from action, unless the passions that resist reason have somehow to be checked at times. Again, it is likewise the most necessary duty, because without it the social life could in no way exist. For with the man who confers no benefit upon me, who makes no interchange even of the common duties with me, I can still live at peace, provided he injure me in no way. In fact, from the vast majority of men we desire nothing more than that. Benefits are generally exchanged by the few. But with the man who injures me, I cannot by any means live peaceably. For nature has implanted in each man so sensitive a love of self and one’s own possessions, that one cannot help repelling by every means the man who essays to injure them.
3. Moreover, this same duty is a bulwark not only to what a man has by nature itself, for instance, life, body, members, chastity, freedom, but also to all that has been acquired through some institution and convention of men. Hence by this precept it is forbidden to carry off, spoil, injure, or withdraw from our use, in whole or in part, anything that by any legitimate title is ours. Consequently the same duty is understood to interdict any crimes by which injury is inflicted upon others, as bloodshed, wounding, beating, robbery. theft, fraud, violence, directly or indirectly, mediately or immediately and the like.
4. It follows also that, if a man has been hurt by another, or a loss inflicted in any way that can be properly laid to the other’s charge, it must so far as possible be made good by him. For otherwise it would be a vain injunction, not to injure, or not to inflict loss, if the man who has actually been injured must swallow his loss, and his assailant can in security, and without refunding, enjoy the profit of the wrong he has done. For human depravity will never refrain from mutual injuries, unless there is the necessity of restitution. And it would be difficult for the man who has suffered loss to make up his mind to live at peace with the other, so long as he did not obtain reparation from him.
5. Although, properly speaking, loss appears to concern an injury to things, the word is however understood by us here in a broad sense, to include every injury, spoiling, diminishing, or taking away, of that which is already ours; or intercepting of that which by a perfect right we ought to have, whether this may have been given us by nature, or assigned us by act of man, or by a law; or, finally, any omission or refusal on the part of another to perform anything which he was bound to do for us in accordance with a perfect obligation. But if things due us under an imperfect obligation merely are intercepted, it is not considered that a loss has been inflicted, which must be made good. For it would be unseemly to consider it a loss not to have received, or to demand compensation for, such things as I could not expect from another except as a voluntary gift, and things which I cannot reckon my own, until I have received them.
6. Under the term loss, moreover, comes not only a thing of ours, or owed to us, which is injured, destroyed, or intercepted, but also the fruits which spring from it, whether they have been gathered in already, or are still hoped for, provided the owner would have gathered them in. But we must deduct the outlay necessary to the gathering in of the crops. Also the valuation of anticipated crops is raised or lowered, according as they arc nearer Ac uncertain outcome, or further from it. Finally also, whatever flows later from an injury, as by natural necessity, is regarded as an integral part of the damage.
7. It is moreover possible for a man to inflict toss upon another not only immediately and of himself, bat also through others- And a loss caused immediately by a man can be imputed to the other, because, by doing something, or not doing something, he was bound to do, he has contributed to that result. Sometimes, as between several who have concurred in the same act, one is regarded as the principal cause, another as an accessory; sometimes all are on an even footing. With regard to these, we must observe that they are bound to make good the loss only in case they were realty the cause of the loss, and were a factor in the whole loss, or a part thereof. But when a man did not contribute any real assistance to that act itself which occasioned the loss, and did not previously cause it to be undertaken, and did not share in the profit, although at the time of the act he may involve himself in some misdeed, still he will not be bound to make restitution for Ac loss. Examples are, those who rejoice at others’ misfortunes, those who afterward praise or excuse the damage, and those who beforehand hope it may happen, and approve or applaud at the time.
8. When several concur in a single act from which damage results, the first responsibility will be his, who by his authority, or in some other way involving constraint, urged others to act. The doer of the deed, if it was not open to him to refuse his services, will be accounted a mere instrument. Whoever without constraint has committed a crime will himself be responsible first of all, and then the others who contributed to the crime; with this reservation, that if the first in order have already made restitution, the rest are exempt (which is not the case with penalties). If several have committed a crime by conspiracy, they are collectively responsible for the individuals, and individually for all their companions, so that if all are arrested, each is bound to contribute his proper share to make good the damage. Where only one is seized, and the rest escape, he will be bound to pay for them all. But where some of those arrested are insolvent, the rich ones will be responsible for the whole amount. If, however, several have concurred in a crime without a conspiracy, and it can be clearly distinguished how much each has contributed to the damage, each will be bound to make good that part alone which was due to himself. But if one has paid the whole amount, the rest are exempt from restitution.
9. Not alone the man who has injured another with malice aforethought, is bound to make good the damage, but also he who, without direct intention, has done so through neglect, or a fault which it was easy to avoid. For it is not the smallest part of sociability, to act so circumspectly that our intercourse does not become formidable or insufferable to others. And then, in consequence of a particular obligation, one is often required to use extraordinary diligence. In fact even the slightest fault can suffice to require restitution, provided the nature of the matter does not actually resent, as it were, the most exact diligence; or if the blame does not belong rather to the man who suffers the damage, than to him who causes it; or unless great excitement, or the circumstances of the case, do not admit a studied circumspection; for example, if one, while brandishing his arms in the heat of battle, should injure a man standing near him.
10. But whoever injures by mere chance, and without his own fault is not bound to make restitution. For nothing having been committed which can be laid to the man’s charge, there is no reason why the unwilling agent should atone for an evil that was destined to happen, rather than the other, who has suffered it.
11. Another precept in agreement with natural equity is that, if my man has caused damage to another without my fault, I should make it good to the injured party, or surrender my man to him. For a slave is of course naturally liable for reparation of damage he has caused. But since he has no property of his own, from which reparation may be made, and his person belongs to the master, it is surely right that the master should either mend the damage or surrender the slave. For otherwise a slave would be given license to injure any persons at his pleasure, if damages could not be recovered either from himself, who has nothing, not even himself, or from his master. For if, on account of an injury, a master is ever so willing to punish the slave with blows or imprisonment, the injured cannot possibly be satisfied thereby.
12. The same principle also seems to be right with regard to our animals, that when, even without our fault, and being of themselves excited contrary to the nature of their kind, they have caused damage to another man, the master should either make good the damage, or surrender the animal. For if I had been injured by an animal living in its natural freedom, I could certainly repair my loss in any way, seizing or killing the beast, — a right which evidently could not have been taken away by the fact of ownership on the part of another. And since the owner receives gain from the animal, while I have suffered a loss from the same, and since repairing a loss finds far greater favor than making gain, it is clear that I may rightly demand of the master of the animal, that he make good the loss, or else, if the animal is not worth so much in his estimation, deliver it up to me.
13. So then, if a man has without malice aforethought caused damage to another, he is bound to make a voluntary offer of restitution, and testify that he was far from any malice, that the injured party may not hold him an enemy, and on his side plan acts of hostility. But one who has injured another maliciously, is not only bound to make a free offer of restitution, but also to show his repentance, and ask pardon. On the other side, the injured, once he has obtained restitution, is bound to grant pardon to the penitent who begs for it, and to be reconciled to him. For he who is unwilling to rest satisfied with restitution and repentance, but sets out to avenge himself anyhow with his own hand, is only humoring the bitterness of his heart, and so for an empty reason breaking the peace among men. For this reason even the natural law condemns vengeance, which has no other end than to harm those who have injured us, and satisfy our feelings with their suffering. But it is proper that men should be the more inclined to forgive mutual offenses, the more frequently they themselves violate the laws of the supreme Deity, and hence have daily need of forgiveness themselves.