Natural Rights on the Threshold of the Scottish Enlightenment. Gershom Carmichael

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СКАЧАТЬ is insufficiently general, arguing that there are laws which are purely permissive as well as laws which give rise to obligation. In any case they are wrong to add in confirmation of this that all rights emerge from purely permissive laws. On the contrary, since, by the distinguished writers’ own admission, rights and obligations go hand in hand and are correlative, since it is their special property to be imposed and cancelled together, the same law which gives someone a right which is valid against others, also by that very fact imposes on those others the corresponding obligation; cf. Grotius, I.I.9. Nor should a right to mere license which does not involve such an obligation, such as the Hobbesian natural right of all men to all things, be taken as a law at all, but rather as the negation of all laws. However I do not deny that an explicit act on the part of the maker of a law often intervenes to dissolve an obligation previously imposed by law; such an act simply repeals a previous law, and is also often called a law, whether rightly or wrongly is not worth arguing. [I.2.2.i]

      We cannot have a properly clear and distinct idea of moral rightness unless we refer it ultimately to the divine law. This is why we determined to establish the notion of divine law (as the sufficient norm and measure of all morality) at the very beginning. This is not the point to discuss law in general; for human laws can be conveniently discussed among the innumerable other circumstances, in the face of whose diversity the divine law itself requires many different duties from us. As for the obligatory force of human laws, the plan of the course requires us to delay this until much later. [I.2.3.i]

      A superior is one who has good reasons why he may require, under threat of penalty, that another man submit his freedom of will to his discretion. Such a one is either God, whose strength can never fail, or someone to whom God has, directly or indirectly, granted this authority. The divine power is understood to be ready to support such a one, by exacting a penalty from those who resist him, if he happens on occasion not to have sufficient strength in his own hands for this purpose. [I.2.5.i]

      [On the grounds which Pufendorf gives for obligation to a superior, Carmichael comments:]

      With the exception of the final argument (which is the foundation not of original but only of derived power),³ the reasons which the author gives here, whether taken separately or together, are not sufficiently powerful. (Cf. Of the Law of Nature and Nations, I.VI.12.) We will be more correct in saying that the reason for the original power which belongs to God alone is to be sought in the infinite perfection of God and in the total dependence of ourselves and of all things upon him as the first and independent cause; and that the primary root of derived power is the Law of God, by which He gives one man the right or capacity to rule another, though often certain human acts also are a part of the process, and notably the act mentioned in the final clause of this section, that a man voluntarily submits himself to another and accepts his direction. [I.2.5.ii]

      It is a celebrated question, whether dispensation has a place in the natural laws. It cannot be doubted that God has sometimes, by a positive declaration of his will, made that just which otherwise would have been unjust by natural law, and vice versa. But many reasonably deny that in these cases God has made a dispensation from any precept of natural law. They contend that the condition of the object has been so altered by God, not as Legislator but as supreme Lord or supreme Judge of all created things, that what would have been forbidden apart from that individual case, is now enjoined by natural law, or vice versa. See Suarez, On Laws, book I.⁴ Civil rulers set the limits of right and wrong by positive laws rather differently than the law of nature does. They make use of the right which individual citizens have given them against themselves, of accommodating their own rights to the safety and security of the state. Yet they are no more to be said to be granting dispensation from the laws of nature, than a creditor in remitting a debt is said to detract in any way from the law on paying debts. [I.2.9.i]

      [Pufendorf says: “Those actions for which the law makes no provision in either way are said to be licit or permitted.” Carmichael comments:]

      In ethics these actions are commonly called indifferent. Not without reason most of the scholastics deny that any human action, taken as a whole, i.e., with all its circumstances, is indifferent. We however recognize that innumerable actions are indifferent, not only in kind, that is, in abstraction from all circumstances, but also taken in conjunction with all those circumstances which can be known and weighed by other men; and therefore no man may be convicted of wrong by another man for doing or omitting them. [I.2.11.i]

      Justice, and moral goodness (bonitas) and badness (malitia) in general, is attributed primarily to actions (on the goodness and badness of which, see Pufendorf, On the Duty of Man and Citizen, I.2.11, and our Supplement I.10, pp. 24–25) and secondarily to persons insofar as they are endowed with the habit of performing such actions. The moral goodness of a person is called virtue, and can be aptly defined as a habit tending toward obedience to the Divine Law, that is, to doing actions prescribed by the law with the intention of doing so, and to omitting forbidden actions with that intention. Likewise the moral badness of a person is called vice, which is defined as a habit tending toward transgression of the Divine Law, that is, to committing forbidden actions with whatever intention or to omitting prescribed actions.

      But justice as attributed to actions, as the author explains in the following paragraph, is simply their goodness considered with reference to a person to whom a particular act is due; and therefore justice attributed to persons, if taken in an equally broad sense, as a constant and perpetual will to perform the duties which are owed to each and every one (that is, to God, to ourselves, and to other men), covers the whole range of moral virtue.

      Yet the usual enumeration of the Cardinal Virtues as four is not completely without foundation. For the other three (so far as they are moral) are contained within the scope of justice as just defined; yet each one of them by itself is in some way a general virtue and relates to all kinds of duties. Prudence, for instance, leads to full investigation and careful judgment as to what we owe, in particular circumstances, to God, ourselves, or other men. And temperance and fortitude, if taken in a sufficiently broad sense, remove two particular obstacles to right action, i.e., an excessive grasping after the goods, and excessive fear of the ills of this life. Thus the former teaches self-restraint, the latter endurance,⁵ which, as Epictetus cleverly remarked, contain between them the sum of all moral philosophy. Cicero too put it very well at On Duties I.ii: no one can be just, who fears death, pain, exile or poverty, or who prefers their opposites to equity.⁶

       Because of that one principle from which flows all genuine obedience to law (i.e., love of God tempered with reverence, and a habitual will to show it in all one’s actions), we have defined virtue, or justice, taken broadly, in a collective rather than an indefinite sense; and so we should inquire not into the various kinds of virtue but into the various relations or parts of virtue. The best way of analyzing these is by the variety of duties which they lead one to do, or if you prefer, to the variety of precepts which they incline one to obey. The broadest division is into piety, which has regard to the duties to be offered directly to God, and probity, which has regard to the duties owed to ourselves or to other men. Goodness toward ourselves, taken in its full range, is not distinguished, so far as I know, by a single name; for temperance, even if taken in a wide sense, is only a certain part of it, and does not cover the whole range. However, probity toward other men is justice itself in the narrower sense, as our author defines it at section 14. [I.2.12.i]

      The unjust man does the just things which he does, either because of the penalty attached to the law, or for some other similar reason different from sincere respect for the divine law. By a sincere respect for that Law, we mean a respect which is founded in a habitual will to obey God in all things, or keeping conformity with the divine law always before our eyes, above all other considerations which can be opposed to it. This is the regard for law which should СКАЧАТЬ