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u c h a p t e r x i i u Of the Special Laws of a Community, relating to the Civil Government59 It now remains, That we take a view of the respective Parts of Supreme Government, together with such Circumstances thereunto belonging , as we find are worthy to be observ’d. In the first Place, there are the Civil Laws, meaning the Acts and Constitutions of the highest Civil Authority for the Time being, ordained to direct the Subject in the Course of his Life, as to what Things he ought to do, and what to omit. These are called Civil, upon two Accounts especially: That is, Either in Regard to their Authority, or their Original.60 In the first Sense, all manner of Laws whatsoever, by the Force whereof Causes may be tried and decided in a Court of Civil Judicature, let their Original be what it will, may pass under that Denomination. In the other, we call only those Laws Civil, which derive their Original from the Will of the Supreme Civil Government, the Subjects whereof are all such Matters, concerning which neither the Laws of God or Nature have determined; yet a due Regulation and Settlement of them is found to be very conducive and advantagious to particular Commonwealths. 59. Tooke’s chapter heading is a circumlocution for Pufendorf’s “On the civil laws in particular” (De legibus civilibus in specie). Tooke has difficulty in rendering Pufendorf’s “civil law” in part because of the English identification of this with (continental ) juscivile, and in part because the notion of laws deriving from the civil sovereign is foreign to the English tradition of “judge-made” common law. 60. Their origin. I. What they are. L. N. N. l. 8. c. 1. §1. II. Why so called. 221 222 the whole duty of man As nothing therefore ought to be made the Subject of a Civil Law, but what relates to the Good of the Commonwealth that does ordain it; so it seeming in the highest Degree expedient towards the Regularity and Ease of living in a Community, That in particular the Law of Nature should be diligently observed by all People; it lies upon Supreme Governours to authenticate the said Law with the Force and Efficacy of a Civil Law.61 For since indeed the Wickedness of a great Part of Mankind is arrived to a Degree, which neither the apparent Excellency of the Law of Nature, nor the Fear of God Himself, is sufficient to restrain ; the most effectual Method remaining, to preserve the Happiness of living in a Community, is, by the Authority of the Government to inforce the Natural by the Civil Laws, and supply the Disability of the one with the Power of the other. Now the Force and Power, which is in Civil Laws, consists in this, That to the Mandatory Part of the Statute, concerning Things to be done or omitted, there is annexed a Penal Sanction, assigning the Punishment that is to be inflicted upon a Man by a Court of Justice for omitting what he ought to do, or doing what he ought to omit. Of which Kind of Sanctions, the Laws of Nature being of themselves destitute, the breaking of them does not fall under the Punishment of any Court in this World; but yet it is reserved for the Judgment of the Tribunal of GOD. 61. For Pufendorf, the civil law thus agrees with the natural law in two distinct but related ways. First, there is a broad agreement between the two because the end of the natural law, sociable existence, is achieved most fully in the state governed by the laws of a civil sovereign. Second, there is the agreement arising from the fact that the stability and tranquillity of the state are enhanced if its citizens act in accordance with the natural law (of sociability). This means that natural laws pertaining to social peace can be enacted and enforced as civil law, thereby, in effect, closing the gap between natural and positive law. Pufendorf thus neutralizes the scholastic and religious uses of natural law as a moral weapon against the civil state: first, by identifying the end of natural law with the end of the civil state (security), and, second, by subordinating natural law to positive civil law. For Barbeyrac’s different view, see his two discourses in the appendix. III. The Law of Nature to be reinforced...

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