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

Чтение книги онлайн.

СКАЧАТЬ aim and subject matter; it was the same subject, more correctly taught, and therefore better able to reach the goal which the other had sought with uncertain direction.

      For all writers on ethics had always professed that it was the science which would direct human actions to goodness, that is, to conformity with the law of nature or, as they commonly say in the schools, with the right dictates of reason.⁷ But by what means can any science direct human actions to conform with the law of nature unless it is by showing what that law prescribes, what it forbids, and what sanctions it employs to enforce its precepts, that is, what good awaits those who observe its precepts and what evil will ensue for those who neglect them? Whatever distinctions one may make between scholastic ethics⁸ and natural jurisprudence, one must not attribute them to the nature of moral science itself but to the spurious or genuine manner of teaching it. The same observation is made by the distinguished Titius in the prolegomena, section 48, to his own Observations on this treatise of Pufendorf’s.⁹

      Nor should it be objected that the subjects which form a great part of the scholastic ethics are not to be found in recent writings on the doctrine of natural law. For if one cuts out some of the things which appear too frequently in every part of scholastic philosophy, empty quibblings and arguments about words which ought to be excluded from the whole range of the sciences, if one also excises those things which can be defined only on the basis of supernatural revelation and must be left therefore to theology, if, finally, one sets aside those purely theoretical questions which are more appropriately treated today in pneumatology, what remains can easily find its place in the study of natural law, although it has been too much neglected until now by recent writers; and so it will be included in what follows.

       No one who cares sincerely about duty, and recognizes that a common rule of duty is given to all men, can doubt that every individual is obliged to seek some knowledge of this rule, and a more accurate knowledge must be sought by some in proportion to the talents they have been given and have a duty to employ in this life. But if there are any who do not think that the discipline of philosophy is necessary for this pursuit, even though it offers more complete and more accurate knowledge of this kind drawn from nature itself, it is because some have persuaded themselves that moral theology, or as it is more popularly called, casuistry, can take the place of philosophy, others think this knowledge may be found in study of the civil law, while still others suppose that they can solve the moral problems considered here without any particular training or reflection, by the sole resource of common sense. Pufendorf himself found it necessary to confront these errors in his own preface,¹⁰ and anyone will be capable of defending himself against them after a little attention to this science, so that it will not be necessary to dwell unduly on them here.

      But the need for a thorough grounding and training in moral science should be sufficiently evident when one considers the innumerable delusions which tend to creep into questions of this kind and divide men every day into parties, not without great disturbance of the public peace. Nay, one may affirm that the perverse and malignant spirit which inspires evil citizens among us to unsettle the public happiness enjoyed by these nations under the just and flourishing reign of our most Serene King, and agitates the same individuals to initiate endless rebellions in favor of the papal Pretender to the throne, has no other source (so far as this source can be imputed to opinions rather than to evil passions) than ignorance of the true principles of natural right.

      The importance of keeping moral philosophy distinct from revealed theology is acknowledged by the most acute among the theologians themselves,¹¹ who do not claim that scripture fixes or removes the boundaries of civil rights as they call them: they assume that these rights are just the same as nature or the consent of men has made them. I would add that it is not a useless exercise to derive the more general moral precepts contained in the Holy Book from the nature of things, not only for the sake of those who do not know or do not acknowledge the Divine Word but also for our own sake who embrace it. For our human frailty needs all the assistance that God has given us to discover and adhere to the truth. And finally it is an important consideration in support of the divine origin and authority of the Sacred Books that they conform with the understanding of the nature of God and the duties of men which one may gather from the nature of things by the right use of reason. This conformity can never be appreciated by those who neglect the study of moral science or confuse it with revealed theology. For these reasons I have never been able to approve of the practice of those who have insisted that what they call Christian ethics, or morals deduced from the testimony of the holy scriptures, should be taught in the schools for the moral part of philosophy. An occasion for this delusion may have been afforded by the even more serious error of those for whom ethics was nothing more than a confused assortment of doctrines, pillaged from the bookshelves of pagan philosophers, on the assumption that one should determine what can or cannot be known by the light of nature from what was or was not known to the pagan philosophers, an assumption that has been the cause of many aberrations and which is worthy only of those strangers in their own home who have never known enough to consult nature herself concerning the demands of nature.

      Nor can the place of moral philosophy be taken by the Roman or any other particular system of jurisprudence. For we are seeking a common norm for all men which will mediate the mutual duties of men who are not obliged to each other by their common subscription to any particular civil law. The same norm must also provide the source of those mutual obligations which exist between rulers and subjects in civil societies; it must supply the grounds for the obligation of the civil law and indicate how those laws are best interpreted; and it must direct us finally, to the most beautiful aspects of virtue which are not comprehended within codes of public law. From all of this it is clear that no merely human law can suffice. One does find in the books of Roman law innumerable declarations of the law of nature, in light of which Ulpian says that he and his friends aspire to true philosophy.¹² But we should not credit any man or any nation with authorship of the laws of nature; this belongs to nature alone. (Compare what is said by Titius, the distinguished scholar mentioned above, in the preface to his Observations on Lauterbach.)¹³ And just as the authority of the Roman government adds nothing to the sanctity of the laws of nature; so the mixture of natural laws with merely civil laws and things of that order prevents one from deducing the natural and genuine precepts contained in the books of Roman law from their own principles and from seeing that those precepts are connected with each other by the native genius of the Roman jurists. Those jurists, to say nothing of their interpreters, may have expounded philosophies which acquired the force of laws, but when they found some rule established by positive law or uniformly accepted customs, they did not normally trouble themselves to deduce that law from some higher source nor was it pertinent to their task to do so.

      They are therefore merely dabblers in one or in both kinds of law who persuade themselves that an accurate knowledge of natural law can be derived from the study of Roman law or of any civil law whatsoever. This is not to denigrate the study of civil jurisprudence, however; for besides the value of studying the law that is used in the courts for the authority of such law in addition to its manifest equity, I also readily acknowledge that the civil law of the Romans often illustrates the natural law, reflecting the light which it receives from it. So just as it is reasonable to teach moral science to those students of the civil law who want it, a knowledge of civil law is virtually necessary in the present state of our moral studies. Indeed the need is so great that the science of natural law will never reach perfection or be cultivated with felicity, until the philosophers know more about the civil law and the jurists know more about philosophy; until, that is, the philosophers recover, or the jurists restore, the garments borrowed from philosophy which at one time added luster to the attire of Roman jurisprudence.

      Some understanding of the nature and utility of the science expounded in this volume can be gained from the foregoing. It remains for us, Reader, to give you some account of the labors that have gone into the volume itself.

      It has been for a long time a concern of the Scottish universities to allow their students to drink СКАЧАТЬ