Pufendorf: On the Duty of Man and Citizen: Book I Chapter I

THE FIRST BOOK ON
THE DUTY OF MAN AND CITIZEN

BY

SAMUEL VON PUFENDORF

CHAPTER I
On Human Action

1. Duty is here defined by me as man's action, duly conformed to the ordinances of the law, and in proportion to obligation. To understand this, it is necessary to treat first of the nature of human action, and also of laws in general.

2. By human action we understand not any motion proceeding from the faculties of man, but that motion only which proceeds from and is directed by those faculties which the Creator[1] has given to mankind above the brutes, — I mean that which is undertaken with intellect lighting the way, and at the bidding of the will.

3. Man has in fact been granted the power not only of knowing the different things which he meets in this universe, of comparing them and of forming new notions in regard to them, but also the ability to foresee what he is going to do, to bestir himself to accomplish it, to shape it to a certain norm and a certain end, and to infer what the result will be; and further, to judge whether things already done conform to rule. Moreover, not all the faculties of man act continually or in a uniform manner. Some of them, in fact, are excited, and then controlled and directed, by an impulse from within. Finally a man is not attracted to all objects indifferently, but seeks some and shuns others. Often too, though the object be present, he checks the impulse, and when several objects are before him, he selects one and rejects the others.

4. With regard then to the faculty of comprehending and judging things — intellect it is called — we must hold it absolutely certain that any man of mature age and sound mind has enough of natural light to be able, with training and due reflection, to comprehend properly at least those general precepts and principles which make for an honorable and a peaceful life in this world; also to appreciate the fact that they are in conformity with human nature. For if this be not admitted, at least within the competence of the human court, men would be able to shield any misdeeds of theirs by an invincible ignorance, since in the human court no one can be accused of violating a rule which it is beyond his powers to comprehend.

5. When a man's intellect has been well instructed as to what is to be done or left undone, to the point of understanding how to give certain and unmistakable reasons for its opinion, we call this a right conscience. But when a man has indeed a correct opinion as regards doing and leaving undone, without the ability to establish the same by argument, having acquired it from the general tenor of life in a community, from habit, or from the authority of superiors, and having no reason impelling him to the opposite course, we call this a probable conscience. By this the greater part of men are guided, for it has been given to few to discover the causes of things.

6. To some, however, it happens not infrequently, especially in regard to particular cases, that arguments for both sides suggest themselves, and they lack the strength of judgment to see clearly which have greater weight. This is usually called a doubtfui conscience. And here is the rule for it: So long as judgment is uncertain as to what is good, or what bad, action must be suspended. For while the doubt is unremoved, the decision to act involves an intention to do wrong, or at least neglect of the law.

7. Often too the human intellect mistakes the false for the true, and then is said to be in error. And error is usually called vincible, when a man with attention and due care can avoid falling into it; but invincible, when even by employing all the diligence which the circumstances of the common life require, one could not avoid the error. This sort, however, at least among those whose heart's desire it is to nurture the light of reason and order their lives in accordance with honor, does not usually happen in regard to the general precepts for living, but merely in connection with particular matters. For the general precepts of the natural law are clear; and then he who makes positive laws follows the custom and the duty of taking special pains that they be made known to his subjects. Hence, without supine neglect, this error does not arise. But in particular matters it is easy for error in regard to the object and other circumstances of the action to steal in against a man's will and without his fault.

8. But where there is simply an absence of knowledge, this is called ignorance. And the latter is treated in two ways, first, according as it contributes to the action; second, according as it comes about against the will, or not without blame. From the former point of view ignorance is usually divided into the effectual and the concomitant. In the absence of the former the action in question would not have been undertaken. The latter may have been absent, and still the action would have been undertaken. From the second point of view ignorance is voluntary or involuntary. The former is even knowingly affected, the means of arriving at the truth having been rejected; or, failing to employ due diligence, one has allowed it to steal in unawares. The involuntary ignorance is when one does not know what he could not know, and was not bound to know. And this again is twofold. For either a man was unable, indeed, to avoid ignorance for the present, and yet was to blame for being in that state; or else he was not only unable to conquer his ignorance for the present, but is also not to blame for having fallen into such a condition.

9. The second faculty which is exclusively seen in man, as compared with the brutes, is called the will. By means of this, as from some inward impulse, a man bestirs himself to action, and chooses what especially attracts him, rejects what does not seem to him suitable. From the will, therefore, man derives the power of acting of his own accord, in other words, the fact that he is not set to act by some inward necessity, but is himself the author of his own action; also the power of acting freely, which means that, when one object is put before him, he can act or not act, and choose the same, or reject it, or if several objects are set before him, can select one and reject the rest. Moreover some human actions are undertaken on their own account, some in so far as they serve to gain another object, that is, some have the functions of an end and others of means. Hence as regards an end, the concern of the will is first to recognize and approve it, then to bestir itself effectually to gain it, with more or less earnestness of aim; then having attained, to rest in quiet enjoyment of it. As for means, they are first approved, then the most suitable, as it appears, selected, and finally put into practice.

10. And just as the chief reason for considering a man responsible for his own acts is that he undertook them of his own will, so we must especially observe that the freedom of the will is by all means to be asserted, at least in regard to the acts for which a man is commonly held to account before a human court. But where no freedom at all is left a man, there he will not himself be held responsible for an act to which he unwillingly lends his limbs and powers, but the other man, who brings constraint to bear.

11. Furthermore, although the will always chooses a generic good, and avoids a generic evil, still, as between individuals, we see a great diversity of desires and actions. And the cause is the fart that not all good and bad things appear to a man uncontaminated, but mixed together, good with bad, bad with good. And because different objects affect peculiarly different parts, so to say, of the man, — some, for example, his self-esteem, some his external senses, some his self-love, the instinct of self-preservation, — the result is that the man views these different objects as respectively becoming, agreeable, and useful. And each of these makes the man incline especially toward itself, in exact proportion to the strength of the impression it has made upon him. There is in most men a special penchant also for certain things, and aversion to others. Consequently, in almost any action different kinds of good things and bad, real or apparent, crop out together, and to distinguish these truly, some men have more, some less, of penetration. It is no wonder then that one man is carried away to that which is especially abhorrent to another.

12. Moreover, the will of man is not always found in equilibrium as regards any action, so that his inclination to this or that side comes from his own inward impulse alone, after maturely weighing everything. But most frequently the man is impelled in the one direction rather than in the other by external influences. For, not to mention the common proclivity of human beings to the bad, the origin and nature of which it is not for our court to examine, the will gains a special penchant from a peculiarly constituted nature, by which some are much inclined to a certain kind of action. And this is observed not only in individuals, but also in entire nations. It appears to be produced by the character of the atmosphere all about us, and of the soil, also the combination of humors in the body. resulting from birth itself, age, food, health, occupation, and similar causes; further by the conformation of the organs, which the mind uses in performing its functions, and so on. Here we must note that not only can a man with care repress and alter his temperament considerably; but also, no matter how much force is attributed to the latter, it must not be thought to have such strength as to force the man necessarily into violation of the natural law, in so far as it is enforced in the human court, where base desires, stopping short of the outward act, are not considered. And, in fact, no matter how much Nature, though driven out with a fork, still returns, a man can nevertheless prevent her causing external acts that are immoral. And the difficulty encountered in conquering a bent of that sort is balanced by the glory and praise which here awaits the victor. But should the mind be goaded with passions such as no reason can hold in check, there is still a way of emptying them out, as it were, without sin.

13. And then the will is strongly bent toward certain acts by frequent repetition of acts of the same sort, from which arises a proclivity which we call habit. The result of habit is that an action is undertaken willingly and lightly, so that the mind seems to be, as it were, dragged toward the object, if present, or most ardently to desire it, if absent. And one should note that there is no habit such that a man cannot with care throw it off again; and also none that can so far pervert the mind, that a man is unequal to the task of restraining here and now the outward acts, at least, toward which habit is swept. And as it is in a man's power to contract a habit of the kind, no matter how much it facilitates the act, nothing is subtracted from the value of his good deeds, nor is the guilt of his misdeeds any the less. In fact, as a good habit heightens a man's praise, so a bad habit his shame.

14. It also makes a great difference whether there is a calm tranquillity of mind, or whether it is stirred by certain special emotions, which they call passions. With regard to these this must be our opinion: however violent they may be, still by due use of reason a man can be superior to them and check their attack, at least before the ultimate act. Moreover, some of the passions are excited by the appearance of a good, others of an evil, and they spur us on to win some agreeable thing, or to avoid the disagreeable. Consequently it is in keeping with human nature that more favor and indulgence among men should go with the second class of passions, and precisely in proportion to the intolerable violence of the evil which aroused them. It is in fact thought much more tolerable to dispense with a good not very necessary to self-preservation, than to suffer an evil tending to the destruction of our nature.

15. Finally, as there are certain diseases which quite take away the use of reason, permanently, or for a time, so among many nations it is a common thing for men actually to invite a kind of malady which soon passes away, and greatly disturbs the use of reason. By which hint I mean intoxication, arising from some beverages and some kinds of smoke. It creates in the blood and spirit a violent commotion, and gives men a proclivity to lust in particular, to anger, rashness, and excessive mirth, so that many seem to be carried out of themselves by intoxication, and to have put on an entirely different nature, as compared with their sober appearance. While it does not, however, always take away the complete use of reason, as being self-invited, it is apt to win odium, rather than favor, for the acts done in that condition.

16. Again, human actions are called voluntary, since they proceed from the will and are guided by it. In the same way whatever actions are knowingly undertaken in opposition to the will, are called involuntary, in the narrower sense of the term. For in its wider sense it also includes acts committed through ignorance. But by involuntary I here mean the same thing as compelled, that is, when a man is forced by a stronger principle from without to surrender the use of his limbs, in such wise as to show his aversion and dissent by signs, and especially by bodily resistance. Also, but less exactly, we speak of the involuntary, when under the stress of necessity one chooses as the lesser evil and undertakes a thing to which formerly, when unconstrained by necessity, one was absolutely averse. Such actions they commonly call mixed. With the voluntary they have this in common, that the will does in the emergency choose the apparently lesser evil. With the involuntary they agree to a certain extent in their effect, in that they are either not laid at all to the charge of the doer, or less severely than are the voluntary actions.

17. But human actions proceeding from and guided by intellect and will possess this particular attribute, that they can be imputed to a man, that is, that the man can rightly be regarded as their author, and held to the rendering of an account of them, and that the consequences which flow from them fall back upon himself. For there is no more intimate reason why an action can be imputed to a man, than because, directly or indirectly, it proceeded from him, knowing and willing it; or because it was in his power, whether the thing should be done or not. Hence in the moral sciences which concern the human tribunal, it is accounted a fundamental axiom, that a man can be called to account for those actions, the performance or omission of which was in his power; or, — and this amounts to the same thing, — that any action which can be directed by a man, and brought about or not at his discretion, can be laid at his own door. So too, on the other hand, no one can be reckoned the author of an action which neither in itself nor in its cause was within his power.

18. Out of these premises we shall form a number of particular propositions, from which it will be established what can be imputed to each man, that is, of what action and result each one can be regarded as the author. First, the actions which another commits, as also the workings of any other causes, and any effects, can only be imputed to a man in so far as he has the power and the duty to control them. Nothing, in fact, is more common among men than for one man to be intrusted with the direction of another's actions. In this case, then, if the other should commit any action in regard to which the first omitted to do what was in his power, that action will be imputed not only to him who immediately committed it, but also to him who neglected any part of the direction which was his duty and within his power. This, however, has its limits and bounds, so that the possible in the case is to be understood with a certain reservation and in a moral sense. By no subjection of one man to another is the freedom of the subject so far extinguished that he cannot resist the direction of the other, and have different aims, and, on the other hand, human life is not so constituted that a man continually attached to one man should be able to observe his every movement. It follows then that, if one has done everything which the nature of the direction laid upon him suggests, when, nevertheless, something has been done by the other, it will be imputed to the doer alone. Thus since men have assumed the ownership of animals, whatever has been done by them to the detriment of another will be laid to the charge of the owner, if, indeed, he has omitted any due care and watchfulness. Thus also any evils which befall another can be imputed to him who, having the power and duty, did not remove their cause and occasion. So, since men have it in their power to promote or suspend many natural operations, any advantage or loss, which they may have occasioned, will be imputed to them in proportion to their contributory pains or neglect. Also in some extraordinary cases a man is responsible for such events as are at other times beyond human control, since the Deity has in a special manner brought them about with reference to a certain man. These and similar cases aside, it is enough if a man can render account of his own actions.

19. Secondly, whatever qualities are found, or not found, in a man, when their presence or absence was not within his power, cannot be imputed to the man himself, except in so far as he failed by industry to make good his natural defect, or to second his native powers. Thus, since no one could insure himself mental penetration and bodily strength, nothing will be chargeable to any one on that account, save in so far as he availed himself of training, or failed to do so. Thus it is not the rustic, but the man of the city and the court, to whom uncouth manners are made a reproach. Hence fault-finding for qualities whose cause was not in our power is to be accounted very absurd, for example, shortness of stature, imperfection of form, and the like.

20. Thirdly, things done through invincible ignorance cannot be laid to one's charge. For we cannot direct an action when the light of intellect does not shine before us; and also we arc presupposing that the man was unable to gain such a light, and was not to blame for this inability. Indeed, in common life ability [to posse] is understood, in a moral sense, to be that degree of capacity, shrewdness, and caution, which is usually judged sufficient, and was based upon plausible reasons.

21. Fourthly, ignorance, as also error, in regard to laws and the duty imposed upon each man does not release one from responsibility. For he who imposes laws and duty upon a man is accustomed, and is bound, to bring these to the notice of the subject. And laws and rules of duty are usually adapted, and must be so, to the capacity of the subject; and to learn and remember them must be a care to everyone. Hence he who is the cause of others' ignorance will be held answerable for the acts also which flow from that ignorance.

22. Fifthly, if a man lacks opportunity to act without involving himself in a fault, his failure to act will not be laid to his account. And opportunity seems to include these four points: (1) that the object of the act be at hand, (2) that there be a convenient place, where we cannot be hindered by others, or suffer some harm, (3) that there be a favorable time, when we do not have more necessary business to transact, — a time which is favorable for others also who concur in the act, (4) finally that we have the natural powers for the act. Without these circumstances the action could not take place, and hence it would be absurd to hold a man accountable, when the opportunity to act was lacking. Thus a physician cannot be accused of indolence, if no one is ill; and a man who is himself in want is not permitted to be liberal. So also he cannot be charged with hiding his talent, who has been refused the position for which he made a proper request. And "unto whomsoever much is given, of him shall be much required."[2] Thus we cannot suck and blow at the same time.

23. Sixthly, it cannot be laid to a man's account either, that he did not do things which exceed his powers, and cannot be prevented by these, or brought about by them. Hence the common saying that there is no obligation for the impossible. We must, however, add the proviso that a man has not diminished or lost his power to perform by his own fault. For such a man can be treated just as if he still retained his powers; for otherwise there would be an easy way to evade any rather troublesome obligation, by electing to destroy the power to perform.

24. Seventhly, there is also no responsibility for what one suffers or does under compulsion. For to avert or escape such things is understood to be beyond the man's powers. Now compulsion is used in two senses: first, when a stronger by force employs our limbs to do or suffer something; secondly, if a more powerful person threatens some great harm at once, and has the ability to carry it out directly, unless we are ready to bestir ourselves to do something, or to refrain from action. For in that case, unless we are expressly obliged to buy off at our own cost the injury we were to inflict upon a third party, the man who imposes upon us that necessity will be considered the author of the crime; but the deed can no more be imputed to us than bloodshed to the sword or the ax.

25. Eighthly, those who are deprived of the use of their reason are not accountable for their actions. For they are unable to distinguish clearly what is being done, or to compare it with a standard. Here belong the acts of infants, before the reason begins to show itself at all dearly. As for the fact that they are scolded or whipped for certain acts, it is not done with the idea that they have strictly speaking deserved punishment in the human court; but it is by way of mere correction and discipline, that they may not make trouble for others by such actions, or may not form a bad habit. So, too, the acts of the insane, the unbalanced and dotards, if the disease has come without their fault, are not regarded as human actions.

26. Ninthly, and finally, one is not accountable for what he imagines he does in sleep, except in so far as by dwelling with pleasure upon the thought of such things by day he has deeply impressed their images upon his mind. And yet these too are very rarely considered in a human court. For in general imagination in sleep is like a boat adrift without a pilot, so that it is not in a man's power to determine what kind of images fancy is to produce.

27. With regard to responsibility for the acts of another, we should observe more closely that sometimes, to be sure, it happens that an action is not laid at all to the charge of him who directly committed it, but to another person who used him as a mere instrument. More commonly, however, an act is charged both to him who committed it, and to him who concurred by some act or omission. This happens especially in three ways: either the second party is accounted the principal cause of the act and he who committed it secondary; or they both walk pari passu; or the second party is the secondary cause, and he who committed it the principal. To the first class belong those who urged another to anything by their influence; those who gave the necessary consent, without which the other could not have acted; those who were able and bound to prevent, and did not do so. To the second class belong those who charge another, or hire him, to commit crime; those who help, harbor, or defend; those who, being able and bound to lend aid to the injured party, failed to do so. To the third class are referred those who give particular advice; those who applaud and approve before the deed; those who by their example inflame others to wrong-doing, and similar persons.


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