On The Duty of Man and Citizen
According to the Natural Law (1673)
Samuel von Pufendorf
1. It is indeed true that in matters enjoined by authority, a man is not bound beyond the intention of that authority, and that in matters to which he elects to bind himself, he is not bound beyond what was his own intention. And yet as one cannot judge of another’s intention, except from actions and signs that impress the senses, a man is consequently considered in a human court as bound only to that which a sound interpretation of those indications suggests. Hence, for a right understanding of laws, as well as of agreements, and for the performance of the duty involved, it is of the greatest importance to establish rules of sound interpretation, for words especially, as the commonest sign.
2. With regard to ordinary terms this is the rule: words are regularly to be interpreted in their proper and well-known signification, imposed upon them not so much by propriety or grammatical analogy or consistency with derivation, as by popular usage, “to whom belongs the rule, the law, the government of tongues.”11
3. Terms of the arts are to be explained according to the definitions of men versed in the particular art. But if technical terms are differently defined by different persons, expressing in ordinary terms what we mean by the other word makes for the prevention of suits.
4. Conjectures too are needed, to draw out the real meaning, if either single words or a group of words are ambiguous; or if some parts of a discourse seem to contradict each other, yet so that by applying a skillful explanation they can be reconciled. Where the contradiction is certain and evident, the later statement will annul the earlier ones.
5. . . . [portion missing] according to the subject-matter. For the speaker is always presumed to have in view the matter of which he was speaking; and hence the meaning of his words is always to be adapted to the same.
6. As for the effect and consequences, this is the rule: when words, simply and literally taken, would entail either no effect, or an absurd one, there must be a slight departure from the commonly received meaning, in so far as the necessity of avoiding the meaningless or the absurd requires.
7. From related statements are derived the strongest conjectures ; for a man is presumed to be consistent Statements are related, locally speaking, or merely as regards their origin. For the former this is the rule: if in some passage of the same discourse the meaning has been plainly and clearly expressed, obscurer wordings are to be interpreted by the plain expressions. Related to this is another rule: in the accurate interpretation of every discourse one must give attention to the preceding and following statements, to which the intervening are presumed to adapt themselves and correspond. For the latter kind of statement this rule is observed: an obscure expression of one and the same man is to be interpreted by his own clearer expressions, though manifested at a different time and place; unless it is quite plain that he has changed his mind.
8. It is also of the greatest advantage to a search for the true meaning, particularly in the case of laws, to examine the reason for the law, or that cause and consideration which moved the lawgiver to make this law, especially when it is evident that this was the one reason for the law. For this we have the rule: the interpretation of a law which agrees with the reason for its passage must be followed, and that which differs from the same must in turn be rejected. Also, when the one adequate reason for a law ceases, the law itself ceases. But when there were several reasons for the same law, it does not at once cease entirely with one of these, since the remaining reasons may suffice to sustain the force of the law. Often, too, the mere will of the lawgiver is sufficient, though the reason for the law may be unknown.
9. We must observe, besides, that many words have more than one signification, a looser, and a stricter sense: also that the content is now favorable, now invidious, now indifferent. The favorable is that which makes equal terms for both parties, or regards the common advantage, or maintains any formal acts, or promotes peace, etc. Invidious is whatever burdens one party only, or one more than the other, or carries with it a penalty, or nullifies an act, or changes existing conditions, or promotes war. Indifferent is, for example, anything that does indeed change existing conditions, but in the interest of peace. For these this is the rule: the favorable is to be interpreted more broadly, the invidious more strictly.
10. From other sources than words there are also conjectures, which have this effect, that an interpretation is sometimes to be broadened, sometimes to be narrowed. Yet one may more easily find reasons which persuade one to narrow an interpretation, than to enlarge it. The law, then, can be extended to a case not mentioned in it, if it is established that a reason which fits the present case was the only one which influenced the lawgiver, and was considered by him in its general bearing, and in such a way as to include similar cases as well. A law must also be extended to meet those cases which are devised by the evil ingenuity of men, in order to outwit the law.
11. On the other hand, the restriction of words expressed in general terms occurs either from an original defect of intention, or from a conflict between a case that arises and the intention. That a man is presumed not to have desired a thing from the beginning is understood (1) from an absurdity which would otherwise follow; and this no man of sound mind is thought to have desired. Hence general terms are to be restricted, in so far as otherwise an absurdity would result from them. (2) From the absence of that reason which alone prompted the man’s will. Hence, under a general expression, cases with which the one adequate reason for the law does not square, are not included. (3) From the absence of the subject-matter, which the speaker is always thought to have had in mind. Hence general terms are always to be adapted to that same matter.
12. But the fact that a case subsequently arising conflicts with the intention of him who made some disposition, is discovered either from the natural reason, or from some sign of his intention. The former happens, if a departure from equity would be unavoidable, unless certain cases were excepted from the general law. For equity is the correction of that in which the law fails on account of its universality. For since not all cases can be foreseen, or stated, on account of their infinite variety, therefore, when general terms are to be applied to special cases, we must except those cases which the lawgiver would have excepted, if he had been consulted in regard to such a case. But it is not permitted to have recourse to this equity, unless sufficient indications compel us so to do. The most certain of these is this: if it should appear, that the natural law would be violated, in case one wished to follow strictly the letter of the human law. Next in importance: if it be not indeed unlawful to follow the letter of the law, but still, in a humane view of the matter, it seem too severe and intolerable, whether for all men in general, or for certain persons; or if the end appear not worth buying at so high a price.
13. Finally, exception must be made to a general expression, if words found elsewhere do not indeed directly conflict with the present law or agreement, but on account of a certain element in the situation cannot be observed at the same time, here and now. Here, then, there are certain rules to be observed, so that we can understand what law ought to be preferred, in case both cannot at the same time be satisfied: (1) What is merely permitted, gives way to what is commanded. (2) What must be done at a certain time, is preferred to what can be done at any time. (3) An affirmative precept gives way to a negative. Or when an affirmative precept cannot be met, without violating the negative, the fulfillment of the former must be omitted for the present. (4) As between conventions and laws otherwise equal, the special is preferred to the general. (5) As between two performances, which at a particular moment conflict, one of them having more honorable or useful reasons than the other, it is proper for the latter to give way to the former. (6) An agreement without oath yields to one with an oath, when both cannot be satisfied at the same time. (7) An imperfect obligation yields to the perfect. (8) The law of beneficence, other things being equal, yields to the law of gratitude.
11. Note missing from original.