law, are sufficient, if I am not mistaken, to evince, that there is a primitive, original, and internal obligation, which is inseparable from reason, and ought necessarily to concur with the external obligation, in order to communicate to the latter all the necessary force for determining and bending the will, and for influencing effectually the human heart.
By distinguishing rightly these ideas, we shall find, perhaps, that this is one way of reconciling opinions, which seem to be wide from each other, only because they are misunderstood.* Sure it is at least, that the manner in which we have explained the foundation of sovereignty and dependance, coincides, in the main, with Puffendorf’s system, as will easily <98> appear by comparing it with what this author says, whether in his large work, or in his abridgment.†
Of the end of laws; of their characters, differences, &c.
Of the end of laws, either in regard to the subjects, or in respect to the sovereign.
I. Some perhaps will complain, that we have dwelt too long on the nature and foundation of sovereignty. But the importance of the subject required us to treat it with care, and to unravel properly its principles. Besides, we apprehend, that nothing could contribute better to a right knowledge of the nature of law; and we shall presently see, that whatever in fact remains for us still to say concerning this subject, is deduced from the principles just now established.
In the first place, it may be asked, what is the end and design of laws?
This question presents itself in two different lights; namely, with respect to the subject, and with regard to the sovereign: a distinction that must be carefully observed.
The relation of the sovereign to his subjects forms a kind of society between them, which the sovereign directs by the laws he establishes.* But as society <99> naturally requires there should be some provision made for the good of all those who are the constituent parts thereof, it is by this principle we must judge of the end of laws: and this end, considered with respect to the sovereign, ought to include nothing in it opposite to the end of these very laws considered with regard to the subject.
II. The end of the law in regard to the subject is, that he should conform his actions to it, and by this means acquire happiness. As for what concerns the sovereign, the end he aims at for himself, by giving laws to his subjects, is the satisfaction and glory arising from the execution of the wise designs he proposes, for the preservation1 of those who are subject to his authority. These two ends of the law should never be separated, one being naturally connected with the other; for it is the happiness of the subject that forms the satisfaction and glory of the sovereign.
The end of laws is not to lay a restraint upon liberty, but to direct it in a proper manner.
III. We should therefore take care not to imagine that laws are properly made in order to bring men under a yoke. So idle an end would be quite unworthy of a sovereign, whose goodness ought to be equal to his power and wisdom, and who should always act up to these perfections. Let us say rather, that laws are made to oblige the subject to pursue his real interest, and to chuse the surest and best way to attain the end he is designed for, which is happiness.2 With this view the sovereign is willing to direct his people better than they could themselves, and gives a check to their liberty, lest they should <100> make a bad use of it contrary to their own and the public good. In short, the sovereign commands rational beings; it is on this footing he treats with them; all his ordinances have the stamp of reason; he is willing to reign over our hearts; and if at any time he employs force, it is in order to bring back to reason those who have unhappily strayed from it, contrary to their own good and that of society.
Examen of what Puffendorf says concerning this subject.
IV. Wherefore Puffendorf, methinks, speaks somewhat loosely in the comparison he draws between law and counsel, where he says, “That counsel tends to the ends proposed by those to whom it is given, and that they themselves can judge of those ends, in order to approve or disapprove them.———Whereas law aims only at the end of the person that establishes it, and if sometimes it has views in regard to those for whom it is made, it is not their business to examine them—this depends intirely on the determination of the legislator.”* It would be a much juster way, methinks, of expressing the thing, to say, that laws have a double end, relative to the sovereign and the subject; that the intent of the sovereign in establishing them, is to consult his own satisfaction and glory, by rendering his subjects happy; that these two things are inseparable; and that it would be doing injustice to the sovereign to imagine he thinks only of himself, without any regard to the good of those who are his dependants. Puffendorf seems here, as well as in some other places, to give a little too much into Hobbes’s principles.<101>
Of the distinction of law into obligatory, and that of simple permission.
V. We defined law, a rule which lays an obligation on subjects of doing or omitting certain things, and leaves them at liberty to act or not to act in other matters, according as they judge proper, &c. This is what we must explain here in a more particular manner.
A sovereign has undoubtedly a right to direct the actions of those who are subject to him, according to the ends he has in view. In consequence of this right, he imposes a necessity on them of acting or not acting after a particular manner in certain cases; and this obligation is the first effect of the law. From thence it follows, that all actions, not positively commanded or forbidden, are left within the sphere of our natural liberty; and that the sovereign is hereby supposed to grant every body a permission to act in this respect as they think proper; and this permission is a second effect of the law. We may therefore distinguish the law, taken in its full extent, into an obligatory law, and a law of simple permission.
The opinion of Grotius and Puffendorf upon this subject.
[VI.] It is true, Grotius,* and after him Puffendorf, are of opinion, that permission is not properly, and of itself, an effect or consequence of the law, but a mere inaction of the legislator. † Whatever things, says Puffendorf, the law permits, those it neither commands nor forbids, and therefore it really doth nothing at all concerning them.<102>
But though this different manner of considering the thing be not perhaps of any great consequence, yet Barbeyrac’s opinion, such as he has explained it in his notes on the forecited passages, appears to be much more exact. A permission arising from the legislator’s silence cannot be considered as a simple inaction. The legislator does nothing but with deliberation and wisdom. If he is satisfied with imposing, only in some cases, an indispensable necessity of acting after a certain manner, and does not extend this necessity further, it is because he thinks it agreeable to the end he proposes, to leave his subjects at liberty in some cases to do as they please. Wherefore, the silence of the legislator imports a positive though tacit permission of whatsoever he has not forbidden or commanded, though he might have done it, and would certainly have done it, had he thought proper. Insomuch that as the forbidden or commanded actions are positively regulated by the law, actions permitted are likewise positively determined by the same law, though after their manner and according to the nature of the thing. In fine, whoever determines certain limits, which he declares we ought not to exceed, does hereby point out how far he permits and consents we should go. Permission therefore is as positive an effect of the law as obligation.
The rights which men enjoy in society, as founded on this permission.
VII. This will appear still more evident, if we consider, that having once supposed that we all depend on
