Two Books of the Elements of Universal Jurisprudence

Definition 7

87 u d e f i n i t i o n v i i u Authority is an active moral power by which some person legitimately and with a moral effect is able to perform a voluntary action. 1. 2. 3. 4. 5. Perfect authority and imperfect. Personal and communicable. Division of authority on the principle of the object, where also sovereignty is treated of. Authority over alien things. The effect of authority. 1. Authority, as it here comes into consideration, is either perfect or imperfect . It is the former when he who interferes with its exercise violently and illegally does wrong (which happens when that authority does not depend upon his own will), and it is this authority which gives the injured party ground for action in a human court against that man. War takes the placeof this authorityamongthosewhoarenotsubjecttoacommonjudge, unless one subjects oneself to the other as a supreme judge. Authority is imperfect when, if a man has been prohibited illegitimately and violently from the exercise of it, he is, indeed, inhumanely treated, in such wise, however, that he has no ground for action in a human court, unless, perchance , the accident of necessity has supplied that which is lacking to his right. Thus, for example, he who violently keeps me from entering my own land, does an injury which gives me ground for action against him; but he who denies me innocent passage through his land, a passage which must be sought somewhere else only by a troublesome, roundabout route, does, indeed, act inhumanely, yet I can by no means for that reason bring an action against him in a human court of law; except that, for example,when 88 book i, definition vii an enemy is attacking me from the rear, I have the right to escape even by cutting down the man who hinders me, in order to save my own life. The former can, moreover, be called the right to bring action, the latter, the aptitude.1 2. In the second place authority is either personal or communicable. The former is that which one cannot transfer legitimately to another. In that authority itself, however, not a few differences occur. For some authorities are so closely united with a person, that their employment cannot at all be exercised properly by any other person. Such is the authority of a husband over the body of his wife, which the laws will by no means allow him to exercise through a representative. Among certain others, moreover, although they cannot be transferred from us to another, the employmentcan be delegated for others to exercise, in such wise, however, that they have all their authority [autoritatem] from those in whom the authority [potestas] roots and rests. Finally, certain authorities can be indirectlytransferredbyustoanother ,whileweabdicatefromtheminhisfavourandresign them, as it were, into his own hands; with the proviso, however, that this transfer is to be confirmed by the authority [autoritate] of a superior. Of this kind was the authority [potestas] of a father according to the ancient Roman laws, which, although it arose naturally from the fact of generation by a personal incommunicable act, a father was able to transfer to another, when, after abdicating his authority, he gives over his son to be adopted by another. This adoption, however, had to be confirmed by the authority [autoritate] of the praetor or of the people, and from this authority alone did it borrow its force.2 For in a state no private citizen is able to give to another the right of life and death over a free man, except it be that he who holds the rights of majesty authorizes it. That authority is communicable which one can transfer to another legitimately , and, indeed, by his own proper initiative. 1. The distinction originates from Grotius; see JBP, I.i.4: “a right becomes a moral quality of a person, making it possible to have or to do something lawfully. . . . When the moral quality is perfect we call it facultas, ‘faculty’; when it is not perfect, aptitudo, ‘aptitude.’ To the former, in the range of natural things, ‘act’ corresponds; to the latter, ‘potency.’” 2. Cf. Inst., I.xi.1. authority 89 3. For the rest, it is permissible to reduce most authorities,fromthepoint of view of their object, to four species primarily; for they regard either persons, or things, and both of these as either one’s own or...