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

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 God and of promoting the interests of the human race admit of no exception; they are themselves the foundation of such exception as is to be admitted in the more particular laws. This is not to be taken to mean that there is no necessity which might rightly draw us away from any particular act of divine worship, especially external worship, which otherwise would have to be performed, but that one may not in any case undertake an act which is contrary to worship, an act, that is, which would betray contempt or hatred of God. Such acts are denial of God, blasphemy, idolatrous worship, and (here the distinguished Titius vainly and wrongly resists) the giving of a promissory oath without the intention to put oneself under an obligation.⁸ I add that the positive obligation of the precept about worshiping God is so far universal that man may not in any case completely abandon direct worship of God, or suspend it for so long that he ceases to have Him habitually before his eyes, or even intermit a particular act of external worship when the intermission would be taken as a denial of God (cf. Daniel 6.10). It is quite evident that neither the precept on promoting the common interests of the human race nor the two directly subordinate to it on every man’s seeking his own innocent advantage and on furthering sociability, as we have explained them above,⁹ can admit any exception of necessity. Hence we reject the conflict between self-love and sociability which Titius so frequently teaches.¹⁰ For all the cases in which that distinguished man finds this conflict are to be explained merely on the basis of the law of sociability. For according to the variety of circumstances, this law assigns more to an individual’s own benefit in one case, more to that of others in another, and thus determines which particular precepts admit the exception of necessity, and in what cases. [I.5.18.i]

      One should say rather with Grotius (who treats this whole matter at II.II.6–10) that an extreme necessity which can be met in no other way, makes a perfect right; i.e., in this case it revives, for this purpose, the right of primitive community. However this is not in virtue of an agreement (as Grotius teaches, in conformity with his false hypothesis about the origin of ownership, on which see below),¹¹ but because of the very nature of the case and the manifest interest of human society. The arguments brought against this by our author at Of the Law of Nature and Nations, II.VI.6, are excessively weak.¹² [I.5.23.iii]

CHAPTER 8

       On Duty to Others, or Sociability ¹

      On not harming others

      [In expounding our duty not to harm others, Pufendorf raised the question of exercising due care and diligence in our activities, the obligation to make restitution, and the exemption from the duty not to harm others in various particular activities such as fighting. Carmichael briefly summarizes and comments on these points.]

      We are always bound to employ the most scrupulous diligence that the nature of the business admits, to avoid causing harm or loss to others. The different degrees of diligence which are required in different contracts concern the custody or care due to someone else’s property by virtue of these contracts. Their effect is not only that the object not be harmed by us, but that it not be harmed in any way so far as we can prevent it by use of the requisite diligence. Moreover, using the most scrupulous diligence that the nature of the business allows in order not to do harm to another does not always exempt us from the obligation of making good his loss. For sociability forbids us ever to undertake any business which threatens loss to another, unless we are prompted by a serious necessity, and even then we are obligated to compensate for the loss which may occur by that means, unless the necessity is communal, as may easily be understood from what the author himself has taught at the end of the previous paragraph. The reason therefore why a soldier is not liable, when brandishing his weapons in the heat of battle, for the harm which he does to the person who happens to be standing next to him, is not only that the nature of the business does not allow him to be more careful, but that both common and individual necessity require that it be done. We allow that the obligation for making good a loss inflicted by necessity does not arise from delict, which is assumed not to be present, but from quasi contract; or if not from quasi contract, as is sometimes the case, then from a true contract, for example by the inclusion of an express provision on the subject. [I.6.9.i]

      Natural equality

      The natural equality of men includes: (1) that each man is equally a man, and consequently is subject to a moral obligation from which no human being can exempt him; and has certain rights belonging to him, which are valid against all men; (2) that with whatever gifts of mind or body a man may by nature be endowed above other men, he may not for that reason claim by his own right any power