The Principles of Natural and Politic Law. Jean-Jacques Burlamaqui
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may be said in general, that all those who are dependent on the legislator, are subject to this obligation. But each law in particular obliges those subjects only, to whom the subject matter may be applied; and this is easily known from the very nature of each law, by which the intention of the legislator is sufficiently expressed.<108>
Nevertheless it sometimes happens, that particular persons are exempted from the obligation of observing the law; and this is what we call dispensation, on which we have a few remarks to make.
1. If the legislator can intirely abrogate a law, by a much stronger reason he can suspend the effect thereof, with regard to any particular person.
2. But we must likewise acknowledge, that none but the legislator himself is invested with this power.
3. He never ought to use it without very good reasons, and then he should act with moderation, and according to the rules of equity and prudence. For were he, without discretion or choice, to favour too great a number of people with dispensations, he would enervate the authority of the law; or were he to refuse it in cases perfectly alike, so unreasonable a partiality would certainly be attended with jealousy and discontent.
Of the duration of laws, and how they are abolished.
XIV. As for what concerns the duration of laws, and the manner in which they are abolished, we are to observe the following principles.8
1. In general the duration of a law, as well as its first establishment, depends on the free will and pleasure of the sovereign, who cannot reasonably tie up his own hands in this respect.
2. And yet every law, of itself and by its nature, is supposed perpetual, when it contains nothing in its disposition, or in the circumstances attending it, that evidently denotes a contrary intention of the legislator, or that may induce us reasonably to presume that it was only a temporary ordinance. The law is a rule; now every rule is <109> of itself perpetual; and, generally speaking, when the sovereign establishes a law, it is not with a design to repeal it.
3. But as the state of things may happen to alter in such a manner, that the law, grown useless or hurtful, can no longer be put in execution; the sovereign can, and ought, in that case, to repeal and abolish it. It would be absurd and pernicious to society, to pretend that laws once enacted ought to subsist for ever, let what inconveniency soever arise.
4. This repeal may be made in two different manners, either expresly or tacitly. For when the sovereign, well acquainted with the state of things, neglects for a long time to enforce the observance of the laws, or formally permits, that affairs relating thereto be regulated in a manner contrary to his disposition; from thence a strong presumption arises of the abrogation of this law, which falls thus of itself, though the legislator has not expresly abolished it.
It is plain we have only glanced here upon the general principles. As for the application that ought to be made of them to each species of laws, it requires some modification, pursuant to their different nature. But it is not our business to enter here into those particulars.
How many sorts of laws.
XV. Law may be divided, 1. into divine or human, according as it has God or man for its author.9
2. Divine law may be subdivided into two sorts, namely, natural and positive or revealed.<110>
Natural law is that which so necessarily agrees with the nature and state of man, that without observing its maxims, the peace and happiness of society can never be preserved. As this law has an essential agreeableness with the constitution of human nature, the knowledge thereof may be attained merely by the light of reason; and hence it is called natural.
Positive or revealed law is that which is not founded on the general constitution of human nature, but only on the will of God; though in other respects this law is established on very good reasons, and procures the advantage of those who receive it.
We meet with examples of these two sorts of laws in the ordinances which God gave formerly to the Jews. It is easy to distinguish such as were natural, from those that, being merely ceremonial or political, had no other foundation than the particular will of God, accommodated to the actual state of that people.
With regard to human laws, considered strictly as such, viz. as originally proceeding from a sovereign who presides over society, they are all positive. For though some natural laws are made the subject of human laws, they do not derive their obligatory force from the human legislator; since they would oblige all the same without any intervention on his part, because they come from God.
Before we leave these definitions, we must not forget to observe, that the science or art of making and explaining laws, and of applying them to human actions, goes by the general name of Jurisprudence.<111>
Of the morality of human actions. *
In what the morality of actions consists.
I. Law being the rule of human actions, in a comparative view, we observe that the latter are either conformable or opposite to the former; and this sort of qualification of our actions in respect to the law, is called morality.
The term of morality comes from mores or manners. Manners, as we have already observed, are the free actions of man, considered as susceptible of direction and rule. Thus we call morality the relation of human actions to the law, by which they are directed; and we give the name of moral philosophy1 to the collection of those rules by which we are to square our actions.
Actions are, 1. either commanded, or forbidden, or permitted.
II. The morality of actions may be considered in two different lights: 1. in regard to the manner in which the law disposes of them; and 2. in relation to the conformity or opposition of those same actions to the law.
In the first consideration, human actions are either commanded, or forbidden, or permitted.
As we are indispensably obliged to do what is commanded, and to abstain from what is forbidden by a lawful superior, civilians consider commanded actions as necessary, and forbidden actions as im- <112> possible. Not that man is deprived of a physical power of acting contrary to law, and incapable, if he has a mind, of exercising this power. But since his acting after this manner would be opposite to right reason, and inconsistent with his actual state of dependance; it is to be presumed that a reasonable and virtuous man, continuing and acting as such, could not make so bad a use of his liberty; and this presumption is in itself too reasonable and honourable for humanity, not to meet with approbation. Whatever (say the Roman lawyers)* is injurious to piety, reputation, or modesty, and in general to good manners, ought to be presumed impossible.
Remarks on permitted actions.
III. With regard to permitted actions, they are such as the law leaves us at liberty to do, if we think proper.† Upon which we must make two or three remarks.
1. We may distinguish two sorts of permission; one full and absolute, which not only gives us a right to do certain things with impunity, but moreover is attended with a positive approbation of the legislator: The other is an imperfect permission, or a kind of toleration, which implies no approbation but a simple impunity.
2. The permission of natural laws always denotes a positive approbation of the legislator; and whatever happens in consequence thereof, is innocently <113> done, and without any violation of our duty. For it is evident, that God could not positively permit the least thing that is bad in its nature.
3. It is otherwise in respect to the permission of human laws. We may, indeed, justly and with certainty infer, that a sovereign has not thought proper to forbid or punish some particular things; but it does not always from thence follow, that he really approves those things, and much less that they may be innocently done, and without any breach of duty.
2. Actions are good or just,