The Principles of Natural and Politic Law. Jean-Jacques Burlamaqui
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Monsieur Barbeyrac’s opinion concerning this subject.
XII. Most civilians are of a different opinion from that of Dr. Clark. “*They establish as a principle of obligation, properly so called, the will of a superior being, on whom dependance is acknowledged. They pretend there is nothing but this will, or the orders of a being of this kind, that can bridle our liberty, or prescribe particular rules to our actions. They add, that neither the relations of proportion nor disagreement which we acknow-<65>ledge in the things themselves, nor the approbation they receive from reason, lay us under an indispensable necessity of following those ideas, as the rules of our conduct. That our reason being in reality nothing else but ourselves, no body, properly speaking, can lay himself under an obligation. From whence they conclude, that the maxims of reason, considered in themselves, and independent of the will of a superior, have nothing obligatory in their nature.”
This manner of explaining the nature, and laying the foundation of obligation, appears to me insufficient, because it does not ascend to the original source, and real principles. True it is, that the will of a superior obliges those who are his dependants; yet this will cannot have such an effect, but inasmuch as it meets with the approbation of our reason. For this purpose, it is not only necessary that the superior’s will should contain nothing in itself opposite to the nature of man; but moreover it ought to be proportioned in such a manner to his constitution and ultimate end, that we cannot help acknowledging it as the rule of our actions; insomuch that there is no neglecting it without falling into a dangerous error; and, on the contrary, the only means of attaining our end is to be directed by it. Otherwise, it is inconceivable how man can voluntarily submit to the orders of a superior, or determine willingly to obey him. Own indeed I must, that, according to the language of civilians, the idea of a superior who commands, must intervene to establish an obligation, such as is commonly considered. But unless we trace things higher, by grounding even the authority of this <66> superior on the approbation he receives from reason, it will produce only an external constraint, very different from obligation, which hath of itself a power of penetrating the will, and moving it by an inward sense; insomuch that man is of his own accord, and without any restraint or violence, inclined to obey.3
Two sorts of obligations; internal and external.
XIII. From all these remarks we may conclude, that the differences between the principal systems concerning the nature and origin of obligation, are not so great as they appear at first sight. Were we to make a closer inquiry into these opinions, by ascending to their primitive sources, we should find that these different ideas, reduced to their exact value, far from being opposite, agree very well together, and ought even to concur, in order to form a system connected properly with all its essential parts, in relation to the nature and state of man. This is what we intend more particularly to perform hereafter.* It is proper at present to observe, that there are two sorts of obligations, one internal, and the other external. By internal obligation, I understand that which is produced only by our own reason, considered as the primitive rule of conduct, and in consequence of the good or evil the action in itself contains. By external obligation, we mean that which arises from the will of a being, on whom we allow ourselves dependent, and who commands or prohibits some particular things, under a commination of punishment. Whereto we must add, that these two obligations, far from being opposite to each other, have, on the contrary, a perfect agreement. For as the external obligation <67> is capable of giving a new force to the internal, so the whole force of the external obligation ultimately depends on the internal; and it is from the agreement and concurrence of these two obligations that the highest degree of moral necessity arises, as also4 the strongest tie, or the properest motive to make impression on man, in order to determine him to pursue steadily and never to deviate from some fixt rules of conduct; in a word, by this it is that the most perfect obligation is formed.
Of right considered as a faculty, and of the obligation thereto corresponding.
The word right is taken in several particular senses, which are all derived from the general notion.
I. Besides the general idea of right, such as has been now explained, considering it as the primitive rule of human actions; this term is taken in several particular significations, which we must here point out.
But, previous to every thing else, we should not forget the primitive and general notion we have given of right. For since it is from this notion, as from its principle, that the subject of this and the following chapters is deduced; if our reasonings are exact in themselves, and have a necessary connexion with the principle, this will furnish us with a new argument in its favour. But if, unexpectedly, it should turn out otherwise, we shall have at least the advantage of detecting the error in its very source, and of being better able to correct it. Such is the effect of a just method: we are convinced that a general idea is exact, <68> when the particular ideas are reducible to it as different branches to their trunk.
Definition of right, considered as a faculty.
II. In the first place, Right is frequently taken for a personal quality, for a power of acting or faculty. It is thus we say, that every man has a right to attend to his own preservation; that a parent has a right to bring up his children; that a sovereign has a right to levy troops for the defence of the state, &c.
In this sense we must define Right, a power that man hath to make use of his liberty and natural strength in a particular manner, either in regard to himself, or in respect to other men, so far as this exercise of his strength and liberty is approved by reason.
Thus, when we say that a father has a right to bring up his children, all that is meant hereby is, that reason allows a father to make use of his liberty and natural force in a manner suitable to the preservation of his children, and proper to cultivate their understandings, and to train them up in the principles of virtue. In like manner, as reason gives its approbation to the sovereign in whatever is necessary for the preservation and welfare of the state, it particularly authorises him to raise troops and bring armies into the field, in order to oppose an enemy; and in consequence hereof we say he has a right to do it. But, on the contrary, we affirm, that a prince has no right, without a particular necessity, to drag the peasant from the plough, or to force poor tradesmen from their families; that a father has no right to expose his children, or to put them to death, &c. because these things, far from being approved, are expresly condemned by reason.<69>
We must take care to distinguish between simple power and right.
III. We must