The Whole Duty of Man, According to the Law of Nature

Discourse on What is Permitted by the Laws

307 Discourse on What Is Permitted by the Laws In which it is shown that what is permitted by the laws is not always just and moral Magnificent and most honored Lord Bailiff, most honored Lords of the Council of this City, learned and respected members of the Academy, my most honored colleagues, listeners of no matter what rank, sex and age. The subject I have chosen will be for many a great paradox, both in itself and coming from me. It is usual to set the probity and the duties of a good citizen squarely within the frame of what the [438] laws of the land require.1 It is an equally common assumption to imagine that knowledge and observation of the laws must constitute the entire scope, indeed the non plus ultra, of the studies of a jurisconsult, a man of law, an advocate and, in general, all who are involved in work that has some relation to the laws. But the great masters of the art, the wise inventors of the most famous and the most widely received laws, in other words the jurisconsults of Ancient Rome, were of a different mind. They professed a substantial philosophy that embraced the whole extent of justice and equity; they proposed to turn men into good persons, not only through fear of punishment but also through love of virtue, which car1 . Vir bonus est quis? Qui consulta Patrum, qui Leges Juraque servat Sed videt hunc omnis domus & vicinia tota Introrsus turpem, speciosum pelle decora. Horace, Book I, Epist. xvi, line 40 et seq. 308 what is permitted by the laws ries its own reward;2 they drew a careful distinction between the rules of law, that determine the findings of the judge (see Monsieur Noodt, Julius Paulus, chap. x), and the precepts of right, that determine the conduct of a good man. As their maxim, they proposed: “Not everything that the laws permit is just and moral.”3 It is this same maxim that I want to set down and develop. If, on an occasion such as this, one can discuss matters more appealing to those whose only wish is for amusement, there is [439] scarcely any matter that could be more useful for everyone. After all, why should discourses of this sort not be designed in such a way that each person can take from them something amusing and something that can be put to profitable use? So let us try to convince those who either do not know, or who do not pay adequate heed to the fact, that, setting aside even the imperatives of Christianity, for something to be judged innocent, it is not enough that it is permitted or authorized by the laws. There are two different ideas here, each of which opens up a vast field for our considerations : the idea of a tacit permission, and the idea of an explicit entitlement . Sometimes the laws pass in silence over certain bad actions that they consequently permit; and sometimes the laws positively authorize performance of such actions. Today, we shall limit ourselves to the first of these two headings. The question reduces to knowing whether the civil laws are the sole rule of citizens’ conduct. For if they are not, if there is another rule, prior and higher, it is clear that something is in no way rendered innocent by the mere fact that the laws of the land do not forbid it, either directly or indirectly, either expressly or by implication. Now, as to there being another rule, prior to and thus the very measure of all civil laws, [440] this is what the wisest and most enlightened 2. Jus est ars boni & aequi. Cujus merito quis nos Sacerdotes adpollet. Justitiam namque colimus, & boni & aequi notitiam profitemur: aequum ab iniquo separantes, licitum ab illicito discernentes: bonos non solum metu poenarum, verum etiam praemiorum quoque exhortatione efficere cupientes: veram, nisi fallor, Philosophiam, non simulatam adsectantes. Digest Book I, title I, De Justitia & Jure, Leg. I, §.i. 3. Non omne, quod licet, honestum est, Digest, Book L, title 17, De diversis Regulis Juris, Leg. CXLIV, princ. what is permitted by the laws 309 persons among the civilized peoples have always agreed.4 There have always been ideas—more or less distinct, more or less far-reaching, more or less accurate—of a law founded in men’s very nature, taught by reason , and fitting the...