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

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СКАЧАТЬ disagreed fundamentally with Pufendorf’s opinion that natural law must abstract from belief in the immortality of the soul and an afterlife. Pufendorf had said in his preface: “The greatest difference [between natural law and theology] is that the scope of the discipline of natural law is confined within the orbit of this life” (Pufendorf, On the Duty of Man and Citizen, p. 8). In a note to this preface Carmichael offered the opposite point of view.]

      We are taught by the light of nature as the fruit of acting well, to hope, and indeed to expect, not only felicity in this life in particular (although this is most closely attached to duties enjoined by natural law) but also, in general, some greater happiness or greater alleviation of misery, if not in this, at least in a future life, than evildoers will be able to attain. Furthermore, if any way of obtaining the greatest happiness after this life is left to man, [we are] to conceive of the hope of it as the more probable, the more, in the individual actions of life, we render ourselves obedient to the divine law. It is not correct, therefore, to say that the end of the discipline of natural law is confined to the scope merely of this life. [“Author’s Preface,” 6.1]

      [Carmichael also disagreed with Pufendorf’s position (“Author’s Preface,” secs. 6 and 7) that natural law, like human jurisdiction, “is concerned only with a man’s external actions and does not penetrate to what is hidden in the heart …” (Pufendorf, On the Duty of Man and Citizen, p. 9). Carmichael comments:]

       Since the law of nature has been ordered and sanctioned by God himself, we are warranted in saying that its edicts are particularly applicable in the court of God and of conscience and, just as evidently, direct the internal motions of the mind as well as external modes of behavior. But the contrary follows from the premises established by Pufendorf; although he attempts to soften the actual conclusion and seems to hint elsewhere at something else.² See the criticism of Pufendorf by the distinguished Leibniz (the so-called Anonymous) in Barbeyrac’s examination of this subject.³ [“Author’s Preface,” 6.3]

      The internal acts of the mind are themselves human, and so far as external acts depend for their direction on internal acts, they derive their qualification [as human] from that source. It is not necessary [for acts of the mind] that there be a previous dictate of the intellect and command of the will: this would involve an infinite regress. It is enough that internal conscience and self-approval be intimately and essentially involved in all those [mental actions]. Human actions therefore are those actions which above we called free and taught that they are in every case and peculiarly subject to moral rule (pp. 25–26). This is not the place to discuss whether the schools are right to call other motions that proceed from our faculties human actions.⁴ [I.1.2.i]

      It is a dispute about a word whether judgments, together with the operations which the mind performs upon ideas previously impressed upon it by objects, should be counted as acts of intellect or will. It makes no difference how we settle it, provided that we always recognize that the mind behaves actively in them, and hence freely, and that those acts therefore (contrary to what some think) are not devoid of morality. It is therefore perhaps a scholastic prejudice that all our modes of thought must be reduced to two or, as it is commonly expressed, must be attributed to one or other of two faculties; a discussion of this is more appropriate in a different forum.⁵ [I.1.4.i]

      There are two senses in which a man is said to be able to understand the natural law or certain of its precepts. In the first sense this phrase is taken in a wide sense to mean only that a faculty of reason has been implanted in man by God, and signs of the true and the good have been manifested in nature, by means of which a man might get to know the difference between what should be done and what omitted, if he used that faculty rightly. In the second sense, the phrase, taken more narrowly, means that there is such a vigor of intellect in a man and such clear signs in nature of a law which prescribes some things and forbids others, that he could understand the duty laid upon him by law, using the ordinary diligence which one who is not plainly negligent of duty is rightly expected to use. These two senses must be carefully distinguished. For in the former sense, what is asserted here is true of all men; but in the latter sense (which Pufendorf seems to have had particularly in mind),⁶ it is true only of men of mature years and sound mind. In the former sense, it should be extended to all the precepts of natural law, as each man has opportunity to observe them; in the latter sense, only to the more general and more obvious precepts. Finally, in the former sense, the law must be supposed to be knowable so that one may be condemned for violation of it even in the court of God, since not even in the court of God is one thought to be personally responsible for violating a law which was not properly declared to him, that is, a law which he was capable of understanding by his own nature but which was not clearly signified to him; but in the latter sense, the necessity of supposing the law to be knowable is restricted to the human court. [I.1.4.ii]

      [Pufendorf had defined right conscience (conscientia recta) as a well-informed understanding of “what is to be done or not done,” which is supported by “certain and incontrovertible reasons.” He acknowledged that most persons do not act upon such an understanding; they are guided rather by “probable conscience.”⁷ Carmichael observed:]

       The distinguished Gerhard Titius, Observations, no. 17, seems to criticize this term [“right conscience”] unnecessarily, contending that conscience as here defined ought to be called certain conscience, inasmuch as probable conscience is also right. But against this one must say that merely probable conscience, even though it is sometimes true (which is all that the author admits) yet falls short of rectitude precisely insofar as it fails to achieve certainty. For inasmuch as there are sure indications of promulgated law exhibited to men, one should permit as little latitude as possible in the court of God to a kind of culpable weakness when men claim that they do not know with certainty the provisions of the law. Besides, the distinguished commentator admits at Observations, no. 19.4, that probable conscience is not sound, but requires a remedy. [I.1.5.iii]

      If it is a question of what is required in the divine court, without a doubt conscience must be rightly instructed, and one must embrace what is supported by sound reasons. But secondly, if it is a question of choosing the [course of action] which is merely less dangerous, then one must adopt the rule proposed by Pufendorf,⁸ provided that it is only a question of whether to undertake or omit some action. Sometimes, however, it is clear that one or the other of two things must be done; that in fact it is less harmful that one of them be done than that both be omitted. Then, and even though it is doubtful whether either course of action is right, we must still exempt such cases from the rule proposed by Pufendorf, as Grotius correctly taught,⁹ and which Pufendorf and Barbeyrac improperly reject.¹⁰ [I.1.6.i]

       It is not without justification that the distinguished Titius here reproaches the author for treating spontaneity and liberty as different conditions of the will or of its acts, despite the fact that by the definitions of both given here, he makes the former a part of the latter. For he places spontaneity in an indifference to act or not to act; but he places liberty both in that indifference to act or not to act which is called contradiction, and in the indifference to doing this [particular] thing or its contrary, which is called contrariety.¹¹ But it is of greater importance to observe that neither the indifference of contradiction nor that of contrariety belongs to the genuine spontaneity or liberty of the will or of its acts. Man does indeed experience that he is an agent who is not only spontaneous but free, i.e., that he acts from a principle which is not only internal but rational, by means of a determination of the will, and the fact itself proclaims that this condition is requisite to the morality and imputability of human actions. But neither reason nor experience suggests that absolute indifference opposed to all previous determination is necessary for this effect, or that it is actually found in our freest actions.¹² On the contrary, that hypothesis not only derogates from the absolute power of the Supreme Deity over created things, but also is opposed to the very nature СКАЧАТЬ