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

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СКАЧАТЬ expect to be held in esteem above others, the more they should be anxious to deserve that special honor by conferring exceptional benefits on their dependents, their country, and the human race; otherwise their claim to honor for themselves on the ground of birth or fortune would be empty indeed. Since therefore their own happy position gives men of superior fortune, more leisure and the other prerequisites of study than other men have, and also offers them an opportunity to perform duties of greater importance to their country (duties which cannot be properly discharged without a variety of knowledge), it cannot be doubted (provided nature has not denied them the intelligence which few will admit to not having) that such men should aspire to achieve a wide range of knowledge. See Locke, Essay, IV.XX.6.

      The right of self-defense

      [Pufendorf says: “Despite the dictum that one is not justified in resorting to killing when the danger can be averted in a milder manner, it is not usual to be scrupulous about details because of the mental turmoil caused by imminent danger.” Carmichael comments:]

      The distinguished Titius rightly observes that the doctrine of this paragraph should apparently refer especially to the civil state, which the author had been discussing in the previous paragraph.⁶ But several provisos which are introduced here for restricting the license of violent defense, may well be applied to both states, provided they are properly explained. For not even in the natural state is it right (at least by the law of charity) to rush precipitately into killing when the danger, both present and future, may be deflected by a more appropriate means. Hence in that state too it is rash to descend from a safe place to meet a challenger, when the provocation comes from a sudden attack which will perhaps soon disappear, or when there is hope that the aggression of the attacker will be checked later with less danger to ourselves or others.

      Finally, the hatefulness of duels asserted by the author at the end of this paragraph is largely valid in both states, both against the challenger and against a man who has been challenged and voluntarily stands firm and obstinately remains in the same mind. Even in the natural state a declared contest is not a completely acceptable mode of asserting one’s right and may only be excused by necessity (see Grotius, Rights of War and Peace, III.XX.43). And likewise so-called injuries, in the proper meaning of that word (injuriae), i.e., the insults which normally involve fellow citizens in duels with each other (for duels which are entered upon to settle a doubtful question, or claim an object which is not due by perfect right, are manifestly unjust); insults, I say, do not afford a just cause for extreme violence even in natural liberty. For it is utterly abhorrent to equity, to humanity, and to justice itself to attempt to repel or vindicate them in that manner. That is, the restoration of an injured reputation, which they usually say is the point of this ferocious avenging of injuries, is a pure and unadulterated fantasy in the minds of men of outrageous vanity. Such men need to learn that true reputation (which is nothing but the opinion of one’s excellence on the part of other men, particularly of good and sensible men) can be neither got nor kept except by doing good and deserving well of human society; and that it cannot be weakened by insults, except so far as they raise a suspicion that one deserved to be so badly treated; hence reputation can only be restored and renewed by measures which altogether remove that suspicion. No one but a madman could convince himself that violence leveled by private assault against the author of the insult would contribute to this one little bit. By this sacrilegious attack therefore, they deliberately profane two most sacred words: they are not ashamed to proclaim their wicked customs as laws of honor. But these customs are diametrically opposed to divine and human laws, and have been transmitted to us from barbarian peoples and centuries, to the great dishonor of human nature, to say nothing of the Christian name. [I.5.13.i]

      Apart from what the author mentions, the victim can require nothing else by his own right from the attacker. But it is a good question whether, even in the state of natural liberty and equality, physical punishment cannot be inflicted on those who have openly violated the law of nature, in the name of the human race, so to speak, as a measure pertaining to its common security. With Grotius (Rights of War and Peace, II.XX.40 ff.) and Locke (Second Treatise of Government, ch. 2), we think this question should be answered emphatically in the positive, at least in the case of the more atrocious crimes, which have been committed with malice. However great moderation should be shown here. For punishment should not be inflicted suddenly or secretly, in case greater disturbances arise in a society and make the remedy more disastrous than the disease. In particular one must be careful to prevent the injured man himself, still seething with anger, from trying to keep on punishing and using force to assert his right.

      Here the author ends his discussion of defense against unjust aggression, but prematurely; he should first have made a clear statement on the nature of human rights and on the foundations on which they rest before discussing the license permitted in their defense. This is the point that Titius (Observationes, no. 119) seems to suggest in his own way, when he points out that the precepts of self-love and sociability should be treated separately before they can be compared with each other. Thus one should add the teaching about the prosecution of one’s right to the teaching on the defense of one’s right. Pufendorf could not have referred less appropriately to this passage. For (as we said above at p. 45) we not only have a right to do something or hold it simply, but often also have a right to require something of another person. As the former right is properly asserted in resisting someone who unjustly attacks us or our property, so the latter right is no less properly asserted, in the natural state, by forcibly seizing what is ours or due to us from someone who is refusing to offer it of his own accord. Therefore in the former case a violent defense of one’s own right, in the latter case a violent prosecution of it (always assuming appropriate circumstances), is a duty which a man owes to himself. We should add a few points about this.

      It is clear in the first place that as a violent defense of right in the civil state is restricted to rather narrow limits, so a violent prosecution of it is utterly forbidden to individual citizens, as plainly repugnant to nature and the end of civil society. It is appropriate on a regular basis only in the natural state in which, when just cause requires, it is to be exercised with the same force against persons, as far as they oppose the satisfaction of our right, as Pufendorf rightly teaches that the natural state permits in its defense. Moreover, since in this case, something of ours or something which is owed to us and not freely tendered, is presumed to give grounds for war, we not only rightly take possession of our own property, if it can be done, but also appropriate something that belongs to another person; if a particular object is owed to us, we seize that; if the debt is nonspecific, we seize as much as is owed. For want of these things, we can appropriate any property belonging to the enemy in compensation for the debt. Further, since neither defensive nor offensive war can be waged without expense and multiple loss, we rightly demand from an unjust enemy restitution for this, and rightly claim in compensation for them whatever is taken from him. However, all these things ought to be understood as due without detriment to the right of the innocent. Beyond these limits (although it cannot be denied that infinite license is permitted against an enemy who perseveres in wrongdoing, of devastating his property, and of taking it away, especially if it may be useful in war), we have no right to acquire anything, however just our cause in fighting, and to retain the advantage we derive from it, after the enemy has agreed to peace terms (and we may understand from this the nature of the peace terms). See Locke, Second Treatise of Government, chapter 16. However we may retain some of the property of an enemy in our custody, as a means to guarantee against the launching of similar attacks in the future, but it must be in such a way that the fruits and profits of the property, beyond what is spent on its custody, are preserved for the owner, as long as he keeps the peace. From the point of view of bare natural right, the situation is the same, whether it is two men living in natural liberty who are in conflict with each other or two states.⁷ [I.5.17.i]

      The rights of extreme necessity

      [Pufendorf has explained that “the case of necessity is not included in the general scope of the law.” Carmichael comments:]

      But the two general laws of worshipping СКАЧАТЬ