The Principles of Natural and Politic Law. Jean-Jacques Burlamaqui
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under an obligation of respecting them. For example, the right which requires that no body should injure or offend us, belongs as well to children, and even to infants that are still in their mothers wombs, as to adult persons. This is the foundation of that equitable rule of the Roman law, which declares, * That infants who are as yet in their mothers wombs, are considered as already brought into the world, whenever the question relates to any thing that may turn to their advantage. But we cannot with any exactness affirm, that an infant, whether already come or coming into the world, is actu-<73>ally subject to any obligation with respect to other men. This state does not properly commence with respect to man, till he has attained the age of knowledge and discretion.
Several sorts of rights and obligations.
VIII. Various are the distinctions of rights and obligations; but it will be sufficient for us to point out those only, that are most worthy of notice.†
In the first place, rights are natural, or acquired. The former are such as appertain originally and essentially to man, such as are inherent in his nature, and which he enjoys as man, independent of any particular act on his side. Acquired rights, on the contrary, are those which he does not naturally enjoy, but are owing to his own procurement. Thus the right of providing for our preservation, is a right natural to man; but sovereignty, or the right of commanding a society of men, is a right acquired.
Secondly, rights are perfect, or imperfect. Perfect rights are those which may be asserted in rigour, even by employing force to obtain the execution, or to secure the exercise thereof in opposition to all those who should attempt to resist or disturb us. Thus reason would impower us to use force against any one that would make an unjust attack upon our lives, our goods, or our liberty. But when reason does not allow us to use forcible methods, in order to secure the enjoyment of the rights it grants us, then these rights are called imperfect. Thus, notwithstanding <74> reason authorises those, who of themselves are destitute of means of living, to apply for succour to other men; yet they cannot, in case of refusal, insist upon it by force, or procure it by open violence. It is obvious, without our having any occasion to mention it here, that obligation answers exactly to right, and is more or less strong, perfect, or imperfect, according as right itself is perfect or imperfect.
Thirdly, another distinction worthy of our attention, is, that there are rights which may be lawfully renounced, and others that cannot.4 A creditor, for example, may forgive a sum due to him, if he pleases, either in the whole or part; but a father cannot renounce the right he has over his children, nor leave them in an intire independence. The reason of this difference is, that there are rights which of themselves have a natural connexion with our duties, and are given to man only as means to perform them. To renounce this sort of rights, would be therefore renouncing our duty, which is never allowed. But with respect to rights that no way concern our duties, the renunciation of them is licit, and only a matter of prudence. Let us illustrate this with another example. Man cannot absolutely, and without any manner of reserve, renounce his liberty; for this would be manifestly throwing himself into a necessity of doing wrong, were he so commanded by the person to whom he has made this subjection. But it is lawful for us to renounce a part of our liberty, if we find ourselves better enabled thereby to discharge our duties, and to acquire some certain and reasonable advantage. It is with these modifications <75> we must understand the common maxim, That it is allowable for every one to renounce his right.
Fourthly; Right, in fine, considered in respect to its different objects, may be reduced to four principal species. 1. The right we have over our own persons and actions, which is called Liberty. 2. The right we have over things or goods that belong to us, which is called Property. 3. The right we have over the persons and actions of other men, which is distinguished by the name of Empire or Authority. 4. And, in fine, the right one may have over other men’s things, of which there are several sorts. It suffices, at present, to have given a general notion of these different species of right. Their nature and effects will be explained, when we come to a particular inquiry into these matters.
Such are the ideas we ought to have of right, considered as a faculty. But there is likewise another particular signification of this word, by which it is taken for law; as when we say, that natural right is the foundation of morality and politics;5 that it forbids us to break our word; that it commands the reparation of damage, &c. In all these cases, right is taken for law. And as this kind of right agrees in a particular manner with man, it is therefore a matter of importance to clear and explain it well, which we shall endeavour to perform in the following chapters.<76>
I. In the researches hitherto made concerning the rule of human actions, we have consulted only the nature of man, his essence, and what belongs to his internal part. This inquiry has shewn us, that man finds within himself, and in his own Reason, the rule he ought to follow; and since the counsels which reason gives him, point out the shortest and safest road to his perfection and happiness, from thence arises a principle of obligation, or a cogent motive to square his actions by this primitive rule. But in order to have an exact knowledge of the human system, we must not stop at these first considerations; we should likewise, pursuant to the method already pointed out in this work,* transfer our attention to the different states of man, and to the relations from thence arising, which must absolutely produce some particular modifications in the rules he is to follow. For, as we have already observed, these rules ought not only to be conformable to the nature of man, but they should be proportionable moreover to his state and situation.
As man by nature is a dependent being, the law ought to be the rule of his actions.
II. Now among the primitive states of man, dependance is one of those which merits the most attention, and ought to have the greatest influence on <77> the rule he is to observe. In fact, a being independent of every body else, has no other rule to pursue but the counsels of his own reason; and in consequence of this independance he is freed from all subjection to another’s will; in short, he is absolute master of himself and his actions. But the case is not the same with a being who is supposed to be dependent on another, as on his superior and master. The sense of this dependance ought naturally to engage the inferior to take the will of him on whom he depends for the rule of his conduct; since the subjection in which he finds himself, does not permit him to entertain the least reasonable hopes of acquiring any solid happiness, independent of the will of his superior, and of the views he may propose in relation to him.† Besides, this has more or less extent and effect, in proportion as the superiority of the one, and the dependance of the other, is greater or less, absolute or limited. It is obvious that all these remarks are in a particular manner applicable to man; so that as soon as he acknowledges a superior, to whose power and authority he is naturally subject; in consequence of this state, he must acknowledge likewise the will of this superior to be the rule of his actions. This is the Right we call Law.
It is to be understood however, that this will of the superior has nothing in it contrary to reason, the primitive rule of man. For were this the case, it would be impossible for us to obey him. In order to render a law the rule of human actions, it should be absolutely agreeable to the nature and constitution <78> of man, and be ultimately designed for his happiness, which reason makes him necessarily pursue. These remarks, though clear enough of themselves, will receive a greater light, when we have more particularly explained the nature of law.
Definition of law.
III. Law I define, a rule prescribed by the sovereign of a society to his subjects, either in order to lay an obligation upon them of doing or omitting certain things, under the commination of punishment; or to leave them at liberty to act or not in other things just as they think proper, and to secure to them, in this respect, the full enjoyment of their rights.1
By thus defining law, we deviate a little from the definitions given by Grotius and Puffendorf. But the definitions of these authors are, methinks, somewhat too vague,