CHAP. VIII.[1]
Of Law in general.
I. IN the researches hitherto made concerning the rule of human actions, we have consulted only the nature of man, his essence, and what belongs to his internal part. This inquiry has shewn us, that man finds within himself, and in his own Reason, the rule he ought to follow; and since the counsels, which reason gives him, point out the shortest and safest road to his perfection and happiness, from thence arises a principle of obligation, or a cogent motive to square his actions by his primitive rule. But, in order to have an exact knowledge of the human system, we must not stop at these first considerations; we should likewise, pursuant to the method already pointed out in this work,[2] transfer our attention to the different states of man, and to the relations, thence arising, which must absolutely produce some particular modifications in the rules he is to follow. For, as we have already observed, these rules ought not only to be conformable to the nature of man, but they should be proportionable moreover to his state and situation.
II. Now among the primitive states of man, dependence is one of those, which merits the most attention, and ought to have the greatest influence on the rule he is to observe. In fact, a being independent of every body else has no other rule to pursue, but the counsels of his own reason; and in consequence of this independence he is freed from all subjection to another's will; in short, he is absolute master of himself and his actions. But the case is not the same with a being, who is supposed to be dependent on another, as on his superior and master. The sense of this dependence ought naturally to engage the inferior to take the will of him, on whom he depends, for the rule of his conduct; since the subjection, in which he finds himself, does not permit him to entertain the least reasonable hopes of acquiring any solid happiness, independent of the will of his superior, and of the views he may propose in relation to him.[3] Besides, this has more or less extent and effect, in proportion as the superiority of the one, and the dependence of the other, is greater or less, absolute or limited. It is obvious that all these remarks are in a particular manner applicable to man; so that, as soon as he acknowledges a superior, to whose power and authority he is naturally subject, in consequence of this state, he must acknowledge likewise the will of this superior to be the rule of his actions. This is the Right we call Law.
It is to be understood however, that this will of the superior has nothing in it contrary to reason, the primitive rule of man. For, were this the case, it would be impossible for us to obey him. In order to render a law the rule of human actions, it should be absolutely agreeable to the nature and constitution of man, and be ultimately designed for his happiness, which reason makes him necessarily pursue. These remarks, though clear enough of themselves, will receive a greater light, when we have more particularly explained the nature of law.
III. Law I define a rule, prescribed by the sovereign of a society to his subjects, either in order to lay an obligation upon them of doing or omitting certain things, under the commination of punishment, or to leave them at liberty to act or not in other things just as they think proper, and to secure to them, in this respect, the full enjoyment of their rights.
By thus defining law, we deviate a little from the definitions, given by Grotius and Puffendorf. But the definitions of these authors are, methinks, somewhat too vague, and besides do not seem to agree with law, considered in its full extent This opinion of mine will be justified by the particular explication, I am going to enter upon, provided it be compared with the passages here refered to.[4]
IV. I say that law is a rule, to signify, in the first place, what law has in common with counsel; which is, that they are both rules of conduct; and secondly, to distinguish law from the transient orders, which may be given by a superior, and, not being permanent rules of the subject's conduct, are not properly laws. The Idea of rule includes principally these two things universality and perpetuity; and both these characters being essential to rule, generally considered, help to discriminate law from any other particular will of the sovereign.
I add, that law is a rule prescribed, because a simple resolution, confined within the sovereign's mind, without manifesting itself by some external sign, can never be a law. It is requisite, that this will be notified in a proper manner to the subjects; so that they be acquainted with what the sovereign requires of them, and with the necessity of squaring thereby their conduct. But in what manner this notification is to be made, whether viva voce, by writing, or otherwise, is a matter of mere indifference. Sufficient it is, that the subjects be properly instructed concerning the will of the legislator.
V. Let us finish the explication of the principal ideas, that enter into the definition of law. Law is prescribed by the sovereign; this is what distinguishes it from counsel, which comes from a friend or equal; who, as such, has no power over us, and whose advices consequently neither have the same force, nor produce the same obligation as law, which, coming from a sovereign, has for its support the command and authority of a superior.[5] Counsels are followed by reasons, drawn from the nature of the thing; laws are obeyed, not only on account of the reasons, on which they are established, but likewise because of the authority of the sovereign, who prescribes them. The obligation arising from counsel is merely internal; that of law is both internal and external.[6]
Society, as we have already observed, is the union of several persons for a particular end, from which some common advantage arises. The end is the effect or advantage, which intelligent beings propose to themselves, and are willing to procure. The union of several persons is the concurrence of their will to procure the end, they aim at in common. But, though we make the idea of society enter into the definition of law, it must not thence be inferred, that society is a condition absolutely essential and necessary to the enacting of laws. Considering the thing exactly, we may very well form a conception of law, when the sovereign has only a single person subject to his authority; and it is only in order to enter into the actual state of things, that we suppose a sovereign commanding a society of men. We must nevertheless observe, that the relation, there is between the sovereign and the subjects, forms a society between them, but of a particular kind, which we may call a society of inequality, where the sovereign commands, and the subjects obey.
The sovereign is therefore he, who has a right to command in the last resort. To command is directing the actions of those, who are subject to us, according to our own will, and with authority or the power of constraint. I say, that the sovereign commands in the last resort, to show that, as he has the first rank in society, his will is superior to any other, and holds all the members of the society in subjection. In fine the right of commanding is nothing more, than the power of directing the actions of others with authority. And, as the power of exercising one's force and liberty is no farther a right, than as it is approved and authorised by reason, it is on this approbation of reason, as the last resort, that the right of command is established.
VI. This leads us to inquire more particularly into the natural foundation of empire or sovereignty; or, which amounts to the same thing, what is it, that confers or constitutes a right of laying an obligation on another person, and of requiring his submission and obedience. This is a very important question in itself; important also in its effects. For, the more we are convinced of the reasons, which establish on the one hand authority, and dependence on the other, the more we are inclined to make a real and voluntary submission to those, on whom we depend. Besides, the diversity of sentiments, in relation to the manner of laying the foundation of sovereignty, is a sufficient proof, that this subject requires to be treated with tare and attention.
1. See Puffendorf on the Law of Nature and Nations, book i. chap. iv.
2. See chap. iii. of this part, § 3.
3. See chap. vi. § 3.
4. See Grotius on the Rights of War and Peace, book i. chap. i. § 9. And Puffendorf on the Law of Nature and Nations, book i, chap. vi. § 4. To which we may add Mons. Barbeyrac's notes.
5. See the Law of Nature and Nations, book i, chap. vi, § 2.
6. See above, chap. vi. § 13.