Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

Чтение книги онлайн.

СКАЧАТЬ does wrong (which happens when that authority does not depend upon his own will), and it is this authority which gives the injured party ground for action in a human court against that man. War takes the place of this authority among those who are not subject to a common judge, unless one subjects oneself to the other as a supreme judge. Authority is imperfect when, if a man has been prohibited illegitimately and violently from the exercise of it, he is, indeed, inhumanely treated, in such wise, however, that he has no ground for action in a human court, unless, perchance, the accident of necessity has supplied that which is lacking to his right. Thus, for example, he who violently keeps me from entering my own land, does an injury which gives me ground for action against him; but he who denies me innocent passage through his land, a passage which must be sought somewhere else only by a troublesome, roundabout route, does, indeed, act inhumanely, yet I can by no means for that reason bring an action against him in a human court of law; except that, for example, when an enemy is attacking me from the rear, I have the right to escape even by cutting down the man who hinders me, in order to save my own life. The former can, moreover, be called the right to bring action, the latter, the aptitude.¹

2. In the second place authority is either personal or communicable. The former is that which one cannot transfer legitimately to another. In that authority itself, however, not a few differences occur. For some authorities are so closely united with a person, that their employment cannot at all be exercised properly by any other person. Such is the authority of a husband over the body of his wife, which the laws will by no means allow him to exercise through a representative. Among certain others, moreover, although they cannot be transferred from us to another, the employment can be delegated for others to exercise, <56> in such wise, however, that they have all their authority [autoritatem] from those in whom the authority [potestas] roots and rests. Finally, certain authorities can be indirectly transferred by us to another, while we abdicate from them in his favour and resign them, as it were, into his own hands; with the proviso, however, that this transfer is to be confirmed by the authority [autoritate] of a superior. Of this kind was the authority [potestas] of a father according to the ancient Roman laws, which, although it arose naturally from the fact of generation by a personal incommunicable act, a father was able to transfer to another, when, after abdicating his authority, he gives over his son to be adopted by another. This adoption, however, had to be confirmed by the authority [autoritate] of the praetor or of the people, and from this authority alone did it borrow its force.² For in a state no private citizen is able to give to another the right of life and death over a free man, except it be that he who holds the rights of majesty authorizes it.

      That authority is communicable which one can transfer to another legitimately, and, indeed, by his own proper initiative.

3. For the rest, it is permissible to reduce most authorities, from the point of view of their object, to four species primarily; for they regard either persons, or things, and both of these as either one’s own or alien. Authority over persons and actions which are one’s own is called liberty, which can be understood from what was said above, where we treated of statuses. Authority over things which are one’s own is called ownership, which likewise has been explained above. Authority over the persons of others is called sovereignty, whereby another can be enjoined legitimately and efficaciously to supply something, that is to say, so that another is under obligation not to resist my order or not to refuse the same. Now sovereignty is either absolute or restricted. It is the former, when its acts cannot be rendered void by any third person who is superior, nor be refused obedience on the part of those over whom sovereignty is exercised, upon the basis of some right which has been sought or retained by a pact entered into at the time when the sovereignty was established. It is the latter, when one or the other, or both of these, can take place. For one’s sovereignty admits of restriction in a twofold fashion, either when, by him who has a superior sovereignty, the power of the one who exercises his sovereignty is checked, or those who obey are absolved from the obligation of taking specific orders; or when those who have put themselves under some one’s sovereignty, have by a pact made for themselves the express reservation that they are unwilling to be bound by his orders in certain things. Such a restriction is not at all repugnant to nature. For, since he to whom sovereignty is given possesses otherwise no right over me, and therefore holds by my mere free will whatever authority he has over me, it is assuredly patent that it rests with me how far I care to admit his sove-<57>reignty over me. And yet these restrictions ought not to be of such a kind that they overturn the purpose of sovereignty and reduce it absolutely to nothing, or render unavailing the pact between the ruler and the ruled. And the ruled are not understood to have the authority to refuse certain commands of the sovereign, unless there be the privilege of appealing to arbitrators or to a judge, or of coming together into a council where they may have the right of considering the deed of the sovereign; on which topic I shall have more to say elsewhere.

      In the second place, sovereignty is either private or public. The former belongs to persons as private individuals for the use of each as such. Species of this sovereignty are the authority of a father, the authority of a master or owners of slaves, the authority of husbands over wives, preceptors over pupils, guardians over wards, &c. Public sovereignty is that which comes to persons in their public capacity for the use of civil society. If this sovereignty be supreme in the state it has an adjunct authority, which men call eminent, over the persons and property of subjects, an authority which is stronger than any rights whatsoever of individuals, but one to be exercised only for the public safety.

4. Finally, by authority over the property of others, we refer to those rights which have been secured by some one over the property of another, through the concession of the owner or through a pact, proprietorship over the property remaining with the owner. Here belongs usufruct, which is the right or authority to use the things of another, without doing injury to their substance. It is a matter of legal tradition that usufruct can be established in any useful things whatsoever, except those which are destroyed by the very use, or those whose use consists in abuse. Here belong the servitudes of estates in the possession of the inhabitants of cities, and of those in the possession of the inhabitants of the country-side. Among servitudes of the latter class are commonly enumerated a road, a cartway, a highway, an aqueduct, the drawing of water, the driving of cattle to water, the right of pasturage, &c.; among those of the former class, the right of setting beams in a wall, of drawing off rain-water falling from the eaves of houses, of keeping a neighbour from building his house too high, and the like. On these servitudes those whose commentaries have illuminated the Roman law are to be consulted.

5. The effect of authority is for obligation to be brought upon another to perform something, and either to admit, or not to impede, actions which are exercised by the force of the same authority, and to enable one to confer upon a second party the faculty of doing or having something, that faculty having previously been lacking. <58>

DEFINITION VIII

Right is an active moral power, belonging to a person, to receive something from another as a matter of necessity.

1. Ambiguity of the word.

2. Perfect right.

СКАЧАТЬ