Natural Rights on the Threshold of the Scottish Enlightenment

4. Law, Rights, and Justice

39 u chapter 4 u Laws, Rights, and Justice1 The author is right to point out here that it contributes to the security of the human race that men’s actions be restrained by a certain rule; he illustrates the same point more fully at Of the Law of Nature and Nations, II.I. But the assertion that man actually is subject to such a rule needs to be proved from the supreme perfections of God himself, from the rational nature of Man, and from the total dependence of man on God. Cf. the early part of Supplement I, pp. 21 ff. [I.2.1.i] [Pufendorf defines Law as “a decree by which a superior obliges one who is subject to him to conform his actions to the superior’s prescript.” Carmichael comments:] The distinguished [commentators] Titius and Barbeyrac2 object that this definition is insufficiently general, arguing that there are laws which are purely permissive as well as laws which give rise to obligation. In any case they are wrong to add in confirmation of this that all rights emerge from purely permissive laws. On the contrary, since, by the distinguished writers ’ own admission, rights and obligations go hand in hand and are correlative , since it is their special property to be imposed and cancelled together , the same law which gives someone a right which is valid against others, also by that very fact imposes on those others the corresponding obligation; cf. Grotius, I.I.9. Nor should a right to mere license which does 1. From the notes to bk. I, ch. 2, “On the Rule of Human Actions, or on Law in General.” 2. Titius, Observationes, no. 50. Barbeyrac, Discours sur la permission des loix, which is bound with Pufendorf, Les devoirs de l’homme et du citoyen. 40 natural rights not involve such an obligation, such as the Hobbesian natural right of all men to all things, be taken as a law at all, but rather as the negation of all laws. However I do not deny that an explicit act on the part of the maker of a law often intervenes to dissolve an obligation previously imposed by law; such an act simply repeals a previous law, and is also often called a law, whether rightly or wrongly is not worth arguing. [I.2.2.i] We cannot have a properly clear and distinct idea of moral rightness unless we refer it ultimately to the divine law. This is why we determined to establish the notion of divine law (as the sufficient norm and measure of all morality) at the very beginning. This is not the point to discuss law in general; for human laws can be conveniently discussed among the innumerable other circumstances, in the face of whose diversity the divine law itself requires many different duties from us. As for the obligatory force of human laws, the plan of the course requires us to delay this until much later. [I.2.3.i] A superior is one who has good reasons why he may require, under threat of penalty, that another man submit his freedom of will to his discretion. Such a one is either God, whose strength can never fail, or someone to whom God has, directly or indirectly, granted this authority. The divine power is understood to be ready to support such a one, by exacting a penalty from those who resist him, if he happens on occasion not to have suf- ficient strength in his own hands for this purpose. [I.2.5.i] [On the grounds which Pufendorf gives for obligation to a superior, Carmichael comments:] With the exception of the final argument (which is the foundation not of original but only of derived power),3 the reasons which the author gives here, whether taken separately or together, are not sufficiently powerful. (Cf. Of the Law of Nature and Nations, I.VI.12.) We will be more correct in saying that the reason for the original power which belongs to God alone is to be sought in the infinite perfection of God and in the total dependence of ourselves and of all things upon him as the first and independent 3. The “final argument” is this: “If [he] has voluntarily submitted to him and accepted his direction.” laws, rights, and justice 41 cause; and that the primary root of derived...