A Methodical System of Universal Law. Johann Gottlieb Heineccius

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СКАЧАТЬ is absolute, when it cannot be avoided by any means but by violating a law; and it is relative, when another might avoid it, but not the person now in the circumstances.^*

      SECTION CLVIII

      Where necessity merits favour.

      Now every one may easily perceive, that not only extreme necessity, but even necessity in which life is not in danger, comes here into the account. For because some calamities are bitterer than death, who can doubt but such may strike terror into the most <111> intrepid breast; such as being deprived of one’s eyes, and other such like distresses. Besides, since of two physical evils the least is to be chosen, the consequence must be, that not only absolute necessity deserves favour, but even relative necessity, if one had no hand in bringing himself into the strait.^*

      SECTION CLIX

      Affirmative laws, divine and human, admit the exception of necessity.

      Law being either divine or human, and both being either affirmative or negative (§64); because even a sovereign cannot oblige one to suffer death without a fault, the consequence is, that all human laws ought regularly to be understood, with the exception of necessity. And the same is true of divine affirmative laws, because the omission of an action cannot be imputed to one, if the occasion for performing it was wanting (§114), unless the omission be of such a nature and kind, that it tends directly to reflect dishonour on God; in <112> which case, the negative law, forbidding all such actions likewise concurs (§131). And to this case belongs the action of Daniel, Dan. vi. 10.^*

      SECTION CLX

      But not divine negative laws relative to our duties to God or ourselves.

      Divine negative laws bind us either to duties towards God, towards our selves, or towards other men (§90 & 124). Those which respect our duties towards God are of such a nature, that they cannot be intermitted without dishonouring God. But we are strictly bound to avoid whatever tends to dishonour God; the consequence of which is, that no necessity can excuse the violation of the negative laws relating to our duties towards God.^† On the other hand, in a collision of two duties respecting ourselves, the safest course is to choose the least of two physical evils. <113>

      SECTION CLXI

      Divine affirmative laws respecting our duties to others admit of favour in the case of necessity.

      As to our duties towards other men, affirmative laws, ’tis certain, admit of favour in the case of necessity; partly because an omission cannot be imputed when the occasion of performing a duty was wanting (§114); partly because the law of benevolence does not oblige us to delight in the happiness of others more than our own, or to love others better than ourselves (§94); and so far the maxim holds just, “Every one is nearest to himself.”^*

      SECTION CLXII

      What is the case with regard to negative laws.

      Moreover negative laws, relative to our social duties, in the case of providential necessity, interfere either with the duty of self-preservation, or with the duty of defending and increasing our perfection and happiness. Now in the former situation, since we are not obliged to love others more than ourselves, (§94), without doubt, in the case of necessity, every way of preserving ourselves is allowable, when a man hath not fallen under that necessity by his own neglect or default; or if the condition of the persons be equal; for equality leaves no room to <114> favour or privilege. In the latter case, it is better for us to want some perfection, or some particular kind or degree of happiness, than that another should perish that we may have it.^†

      SECTION CLXIII

      What if the necessity proceeds from human malice?

      All this holds true, if the necessity we are under be merely providential (§142); but if it proceeds from the malice of men, they do it either that we may perish, or that they may lay us under the necessity of acting wrong. And in the former case, since we are not bound to love any other better than ourselves, much less a bad person (§94); he is justly excusable who suffers another to perish rather than himself. In the latter case, the cruelest things ought to be submitted to, rather than do any thing dishonourable to God (§131).^* <115>

      SECTION CLXIV

      An admonition with regard to the application of these rules to particular cases.

      Having mentioned these rules, most of which have been fully explained by others,^† it will not be difficult to determine the cases proposed by Pufendorff and others. Indeed, if we attend narrowly to the matter, we will find that many proposed on this subject are such as very rarely happen, and many others are of such a nature, that all is transacted in an instant, so that there is hardly time or room for calling in reason to give its judgment of the justice, or injustice of an action; to which cases, we may not improperly apply what Terence says,

      Facile omnes, quum valemus, recta consilia aegrotis damus,

      Tu, si hic esses, aliter sentires. Andr. 1. 1. v. 9.¹

      For which reason, it is better to leave many of these cases to the mercy of God, than to enter into too severe a discussion of them.

      SECTION CLXV

      Whether it be lawful to cut off a member.

      Thus none can doubt but necessity will excuse a person who must let a member be cut off to prevent his perishing; or that the other parts may not be endangered by it. For tho’ we owe both these duties to ourselves, viz. to preserve our life, and to preserve every member intire, yet the least of two physical evils is to be chosen (§160); and it is certainly a lesser evil to be deprived of a member than to lose life. It is therefore a lawful <116> mean of saving life to do it by the loss of a member.^*

      SECTION CLXVI

      Whether it be lawful to eat human flesh in extreme necessity?

      There is no doubt but that they are excusable, who in extreme hunger and want have recourse to any food, even to the flesh of dead men: for since here there is a contest between two duties towards ourselves; of two physical evils, death and detestable food, the least ought to be chosen (§160). But he is by no means excusable who kills another, that he may prolong a little his own miserable life by eating his flesh; for however direful and imperious the necessity of long hunger may be, it does not give us a right to another’s life that we ourselves may be saved, because here the condition and necessity^* of both persons are equal (§162). <117>

      SECTION CLXVII

      Whether in shipwreck?

      The case is not the same, when one in shipwreck, having got upon a plank only sufficient to save himself, keeps others from it with all his force; or with those who leaping first into a boat, will not allow others, whom it cannot contain with safety, to come into it, but precipitate them into the sea; because in these cases, he who first seized the plank, or they who first got into the boat, are in possession, and therefore others have no right to deprive them of it, tho’ they be in the same danger. And who will not own, that it is a less evil that a few, than that all should perish, or a greater good that a few, than that none should be saved?^† <118>

      SECTION CLXVIII

      Whether СКАЧАТЬ