The Principles of Natural and Politic Law. Jean-Jacques Burlamaqui
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agree with law considered in its full extent. This opinion of mine will be justified by the particular explication I am going to enter upon, provided it be compared with the passages here referred to.*
Why law is defined a rule prescribed.
IV. I say that law is a rule, to signify, in the first place, what law has in common with counsel; which is, that they are both rules of conduct; and secondly, to distinguish law from the transient orders which may be given by a superior, and not being permanent rules of the subject’s conduct, are not properly laws. The idea of rule includes prin-<79>cipally these two things, universality and perpetuity; and both these characters being essential to rule, generally considered, help to discriminate law from any other particular will of the sovereign.
I add, that law is a rule prescribed; because a simple resolution confined within the sovereign’s mind, without manifesting itself by some external sign, can never be a law. It is requisite that this will be notified in a proper manner to the subjects; so that they be acquainted with what the sovereign requires of them, and with the necessity of squaring thereby their conduct. But in what manner this notification is to be made, whether viva voce, by writing, or otherwise, is a matter of mere indifference. Sufficient it is, that the subjects be properly instructed concerning the will of the legislator.
What is understood by a sovereign, sovereignty, and the right of commanding.
V. Let us finish the explication of the principal ideas that enter into the definition of law. Law is prescribed by the sovereign; this is what distinguishes it from counsel, which comes from a friend or equal; who, as such, has no power over us, and whose advices, consequently, neither have the same force, nor produce the same obligation as law, which coming from a sovereign, has for its support the command and authority of a superior.* Counsels are followed for reasons drawn from the nature of the thing; laws are obeyed, not only on account of the reasons on which they are established, but likewise because of the authority of the sovereign <80> that prescribes them. The obligation arising from counsel is merely internal; that of law is both internal and external.†
Society, as we have already observed, is the union of several persons for a particular end, from whence some common advantage arises. The end, is the effect or advantage which intelligent beings propose to themselves, and are willing to procure. The union of several persons, is the concurrence of their will to procure the end they aim at in common. But though we make the idea of society enter into the definition of law, it must not be inferred from thence, that society is a condition absolutely essential and necessary to the enacting of laws. Considering the thing exactly, we may very well form a conception of law, when the sovereign has only a single person subject to his authority; and it is only in order to enter into the actual state of things, that we suppose a sovereign commanding a society of men. We must nevertheless observe, that the relation there is between the sovereign and the subjects, forms a society between them, but of a particular kind, which we may call society of inequality, where the sovereign commands, and the subjects obey.
The sovereign is therefore he who has a right to command in the last resort. To command, is directing the actions of those who are subject to us, according to our own will, and with authority or the power of constraint. I say that the sovereign commands in the last resort, to shew that as he has the first rank in society, his will is superior to any other, and holds all the members of the society in subjec-<81>tion. In fine, the right of commanding is nothing more than the power of directing the actions of others with authority. And as the power of exercising one’s force and liberty is no farther a right, than as it is approved and authorized by reason, it is on this approbation of reason, as the last resort, that the right of commanding is established.
VI. This leads us to inquire more particularly into the natural foundation of empire or sovereignty; or, which amounts to the same thing, what is it that confers or constitutes a right of laying an obligation on another person, and of requiring his submission and obedience. This is a very important question in itself; important also in its effects. For the more we are convinced of the reasons, which establish on the one hand authority, and dependance on the other, the more we are inclined to make a real and voluntary submission to those on whom we depend. Besides, the diversity of sentiments, in relation to the manner of laying the foundation of sovereignty, is a sufficient proof that this subject requires to be treated with care and attention.2
Of the foundation of sovereignty, or the right of commanding.
First remark. The question is, in regard to a necessary sovereignty.
I. Inquiring here into the foundation of the right of command, we consider the thing only in a general and metaphysical manner. The <82> question is to know the foundation of a necessary sovereignty and dependance; that is, such as is founded on the very nature of things, and is a natural consequence of the constitution of those beings to whom it is attributed. Let us therefore wave whatever relates to a particular species of sovereignty, in order to ascend to the general ideas from whence the first principles are derived. But as general principles, when just and well founded, are easily applied to particular cases; it follows therefore, that the first foundation of sovereignty, or the reasons on which it is established, ought to be laid in such a manner, as to be easily applicable to the several species that fall within our knowledge. By this means, as we observed before, we can be fully satisfied with regard to the justness of the principles, or distinguish whether they are defective.
Second remark. There is neither sovereignty nor necessary dependance between beings perfectly equal.
II. Another general and preliminary remark is, that there can be neither sovereignty nor natural and necessary dependance between beings, which by their nature, faculties, and state, have so perfect an equality, that nothing can be attributed to one which is not alike applicable to the other. In fact, in such a supposition, there could be no reason, why one should arrogate an authority over the rest, and subject them to a state of dependance, of which the latter could not equally avail themselves against the former. But as this reduces the thing to an absurdity, it follows, that such an equality between several beings excludes all subordination, all empire and necessary dependance of one on the other; just as the equality of two weights keeps these in a perfect equilibrium. There must <83> be therefore in the very nature of those beings, who are supposed to be subordinate one to the other, an essential difference of qualities, on which the relation of superior and inferior may be founded. But the sentiments of writers are divided in the determination of those qualities.
Different opinions on the origin and foundation of sovereignty.
III. 1. Some pretend that the sole superiority of strength, or, as they express it, an irresistible power, is the true and first foundation of the right of imposing an obligation, and prescribing laws. “This superiority of power gives, according to them, a right of reigning, by the impossibility in which it places others, of resisting him who has so great an advantage over them.”*
2. Others there are, who derive the origin and foundation of sovereignty, from the eminency or superior excellence of nature; “which not only renders a being independent of all those who are of an inferior nature; but moreover causes the latter to be regarded as made for the former. And of this, say they, we have a proof in the very constitution of man, where the soul governs, as being the noblest part; and it is likewise on this foundation, that the empire of man over brutes is grounded.”†
3. A third opinion, which deserves also our notice, is that of Barbeyrac.‡ According to this ju-<84>dicious author, “there is, properly speaking, only one general foundation of obligation, to which all others may be reduced, and that is, our natural dependance on God, inasmuch as he has given us being, and has consequently a right to require we should apply our faculties to the use for which he has manifestly designed them. An artist,” he continues, “as such, is master of his own work, and can dispose of it as he pleases. Were a sculptor capable of