LITMIR.BIZ

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it really doth nothing at all concerning them.<102>

      But though this different manner of considering the thing be not perhaps of any great consequence, yet Barbeyrac’s opinion, such as he has explained it in his notes on the forecited passages, appears to be much more exact. A permission arising from the legislator’s silence cannot be considered as a simple inaction. The legislator does nothing but with deliberation and wisdom. If he is satisfied with imposing, only in some cases, an indispensable necessity of acting after a certain manner, and does not extend this necessity further, it is because he thinks it agreeable to the end he proposes, to leave his subjects at liberty in some cases to do as they please. Wherefore, the silence of the legislator imports a positive though tacit permission of whatsoever he has not forbidden or commanded, though he might have done it, and would certainly have done it, had he thought proper. Insomuch that as the forbidden or commanded actions are positively regulated by the law, actions permitted are likewise positively determined by the same law, though after their manner and according to the nature of the thing. In fine, whoever determines certain limits, which he declares we ought not to exceed, does hereby point out how far he permits and consents we should go. Permission therefore is as positive an effect of the law as obligation.

      The rights which men enjoy in society, as founded on this permission.

      VII. This will appear still more evident, if we consider, that having once supposed that we all depend on a superior, whose will ought to be the universal rule of our conduct, the rights attributed to man in this state, by virtue of which he may act safely and with impunity, are founded on the express <103> or tacit permission received from the sovereign or the law. Besides, every body agrees that the permission granted by the law, and the right from thence resulting, lay other men under an obligation not to resist the person that uses his right, but rather to assist him in this respect, than do him any prejudice. Obligation, therefore, and permission are naturally connected with each other; and this is the effect of the law, which likewise authorizes those, who are disturbed in the exercise of their rights, to employ force, or to have recourse to the sovereign, in order to remove these impediments. Hence it is, that after having mentioned in the definition of law, that it leaves us in certain cases at liberty to act or not to act, we added, that it secures the subjects in the full enjoyment of their rights.^*

      The matter of laws.

      VIII. The nature and end of laws shew us their matter or object. The matter of laws in general are all human actions, internal and external; thoughts, and words, as well as deeds; those which relate to another, and those which terminate in the person itself; so far, at least, as the direction of those actions may essentially contribute to the particular good of each person, to that of society in general, and to the glory of the sovereign.

      Internal conditions of a law; that it be possible, useful, and just.

      IX. This supposes naturally the three following conditions. 1. That the things ordained by the law be possible to fulfil; for it would be folly, and even cruelty, to require of any person, under the least commination of punishment, whatever is and always has <104> been above his strength. 2. The law must be of some utility; for reason will never allow any restraint to be laid on the liberty of the subject, merely for the sake of the restraint, and without any benefit or advantage arising to him. 3. In fine, the law must be in itself just; that is, conformable to the order and nature of things, as well as to the constitution of man: this is what the very idea of rule requires, which, as we have already observed, is the same as that of law.³

      External conditions of law; that it may be made known; and accompanied with a sanction.

      X. To these three conditions, which we may call the internal characteristics of law, namely, that it be possible, just, and useful, we may add two other conditions, which in some measure are external; one, that the law be made sufficiently known; the other, that it be attended with a proper sanction.

      1. It is necessary that the laws be sufficiently notified to the subject;^* for how could he regulate his actions and motions by those laws, if he had never any knowledge of them? The sovereign ought therefore to publish his laws in a solemn, clear, and distinct manner. But, after that, it is the subject’s business to be acquainted with the will of the sovereign; and the ignorance or error he may lie under in this respect, cannot, generally speaking, be a legitimate excuse in his favour. This is what the civilians mean, when they lay down as a maxim, ^† That ignorance or error in regard to the law is blameable and hurtful. Were it not so, the laws would <105> be of no effect, but might always, under a pretext of ignorance, be eluded with impunity.⁴

      XI. 2. The next thing requisite is, that the law be attended with a proper sanction.

      Sanction is that part of the law, which includes the penalty enacted against those who transgress it. With regard to the penalty, it is an evil with which the sovereign menaces those subjects who should presume to violate his laws, and which he actually inflicts, whenever they violate them: and this with a design of procuring some good; such as to correct the culpable, and to admonish the rest; but ultimately, that his laws being respected and observed, society should enjoy a state of security, quiet, and happiness.

      All laws have therefore two essential parts: the first is the disposition of the law, which expresseth the command or prohibition; the second is the sanction, which pronounces the penalty; and it is the sanction that gives it the proper and particular force of law. For were the sovereign contented with merely ordaining or forbidding certain things, without adding any kind of menace; this would be no longer a law prescribed by authority, but merely a prudent counsel.⁵

      It is not however absolutely necessary that the nature or quality of the punishment be formally specified in the law; it is sufficient that the sovereign declares he will punish, reserving to himself the species and degree of chastisement according to his prudence.^*<106>

      We must also observe, that the evil, which constitutes the punishment properly so called, ought not to be a natural production, or a necessary consequence of the action intended to be punished. It should be, as it were, an occasional evil, and inflicted by the will of the sovereign. For whatever the action may have bad of itself and dangerous in its effects and inevitable consequences, cannot be reckoned as proceeding from the law, since it would equally happen without it. The menaces therefore of the sovereign must, in order to have some weight, be inflictive of such punishments as differ from the evil that necessarily arises from the nature of the thing.^*

      Whether the promise of recompence is equally capable, as the commination of punishment, to constitute the sanction of law.

      XII. It may be asked, in fine, whether the sanction of laws may not as well consist in the promise of a recompence, as in the commination of punishment? I answer, that this depends, in general, on the will of the sovereign, who may use either of these ways; or even employ them both, according as his prudence directs. But since the question is to know, which is the most effectual method the sovereign can use, in order to enforce the observance of his laws; and since it is certain that man is naturally more sensibly affected by evil than good,⁶ it seems more proper to establish the sanction of law <107> in the commination of punishment, than in the promise of recompence. People are seldom induced to violate the law, unless it be with the hope of procuring at least some apparent good. The best way therefore to prevent this deception, is to remove the bait that allures them, and to annex, on the contrary, a real and inevitable evil to disobedience. Suppose, for instance, two legislators, willing to establish the same law, proposed, one of them great rewards, and the other severe punishments, the latter would undoubtedly dispose men more effectually to compliance than the former. The most specious promises do not always determine the will; but the view of a rigorous punishment staggers and intimidates it.^† But if the sovereign, by a particular effect of his bounty and wisdom, is willing to join these two means, and to enforce the law by a double motive of observance; there is then nothing wanting to complete its force, since in every respect it is a perfect sanction.

      Who those are whom the law obliges. Of dispensation.

      XIII. The obligation which the laws impose,⁷ have as great an extent as the right of the sovereign; and consequently

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