The Elements of Law/Part I/Chapter 17

From Wikisource
Jump to navigation Jump to search

Chapter 17: Other Laws of Nature[edit]

1. The question, which is the better man, is determinable only in the estate of government and policy, though it be mistaken for a question of nature, not only by ignorant men, that think one man's blood better than another's by nature; but also by him, whose opinions are at this day, and in these parts of greater authority than any other human writings (Aristotle). For he putteth so much difference between the powers of men by nature, that he doubteth not to set down, as the ground of all his politics, that some men are by nature worthy to govern, and others by nature ought to serve. Which foundation hath not only weakened the whole frame of his politics, but hath also given men colour and pretences, whereby to disturb and hinder the peace of one another. For though there were such a difference of nature, that master and servant were not by consent of men, but by inherent virtue; yet who hath that eminency of virtue, above others, and who is so stupid as not to govern himself, shall never be agreed upon amongst men; who do every one naturally think himself as able, at the least, to govern another, as another to govern him. And when there was any contention between the finer and the coarser wits, (as there hath been often in times of sedition and civil war) for the most part these latter carried away the victory and as long as men arrogate to themselves more honour than they give to others, it cannot be imagined how they can possibly live in peace: and consequently we are to suppose, that for peace sake, nature hath ordained this law, That every man acknowledge other for his equal. And the breach of this law, is that we call PRIDE.

2. As it was necessary that a man should not retain his right to every thing, so also was it, that he should retain his right to some things: to his own body (for example) the right of defending, whereof he could not transfer. to the use of fire, water, free air, and place to live in, and to all things necessary for life. Nor doth the law of nature command any divesting of other rights, than of those only which cannot be retained without the loss of peace. Seeing then many rights are retained, when we enter into peace one with another, reason and the law of nature dictateth, Whatsoever right any man requireth to retain, he allow every other man to retain the same. For he that doth not so, alloweth not the equality mentioned in the former section. For there is no acknowledgement of the equality of worth, without attribution of the equality of benefit and respect. And this allowance of aequalia aequalibus, is the same thing with the allowing of proportionalia proportionalibus. For when a man alloweth to every man alike, the allowance he maketh will be in the same proportion, in which are the numbers of men to whom they are made. And this is it men mean by distributive justice, and is properly termed EQUITY. The breach of this law is that which the Greeks call Pleovezia, which is commonly rendered covetousness, but seemeth to be more precisely expressed by the word ENCROACHING.

3. If there pass no other covenant, the law of nature is, That such things as cannot be divided, be used in common, proportionably to the numbers of them that are to use the same, or without limitation when the quantity thereof sufficeth. For first supposing the thing to be used in common not sufficient for them that are to use it without limitation, if a few shall make more use thereof than the rest, that equality is not observed, which is required in the second section. And this is to be understood, as all the rest of the laws of nature, without any other covenant antecedent; for a man may have given away his right of common, and so the case be altered.

4. In those things which neither can be divided, nor used in common, the rule of nature must needs be one of these: lot, or alternate use; for besides these two ways, there can no other equality be imagined. And for alternate use, he that beginneth hath the advantage; and to reduce that advantage to equality, there is no other way but lot: in things, therefore, indivisible and incommunicable, it is the law of nature, That the use be alternate, or the advantage given away by lot; because there is no other way of equality'. and equality is the law of nature.

5. There be two sorts of lots: one arbitrary, made by men, and commonly known by the names of lot, chance, hazard, and the like; and there is natural lot, such as is primogeniture, which is no more but the chance, or lot of being first born; which, it seemeth, they considered, that call inheritance by the name of cleronomia, which signifieth distribution by lot. Secondly, prima occupatio, first seizing or finding of a thing, whereof no man made use before, which for the most part also is merely chance.

6. Although men agree upon these laws of nature, and endeavour to observe the same; yet considering the passions of men, that make it difficult to understand by what actions, and circumstances of actions, those laws are broken; there must needs arise many great controversies about the interpretation thereof, by which the peace must needs be dissolved, and men return again to their former estate of hostility. For the taking away of which controversies, it is necessary that there be some common arbitrator and judge, to whose sentence both the parties to the controversy ought to stand. And therefore it is a law of nature, That in every controversy, the parties thereto ought mutually to agree upon an arbitrator, whom they both trust; and mutually to covenant to stand to the sentence he shall give therein. For where every man is his own judge, there properly is no judge at all; as where every man carveth out his own right, it hath the same effect, as if there were no right at all; and where is no judge, there is no end of controversy, and therefore the right of hostility remaineth.

7. AN ARBITRATOR therefore or judge is he that is trusted by the parties to any controversy, to determine the same by the declaration of his own judgment therein. Out of which followeth: first, that the judge ought not to be concerned in the controversy he endeth; for in that case he is party, and ought by the same reason to be judged by another; secondly, that he maketh no covenant with either of the parties, to pronounce sentence for the one, more than for the other. Nor doth he covenant so much, as that his sentence shall be just; for that were to make the parties judges of the sentence, whereby the controversy would remain still undecided. Nevertheless for the trust reposed in him, and for the equality which the law of nature requireth him to consider in the parties, he violateth that law, if for favour, or hatred to either party, he give other sentence than he thinketh right. And thirdly, that no man ought to make himself judge in any controversy between others, unless they consent and agree thereto.

8. It is also of the law of nature, That no man obtrude or press his advice or counsel to any man that declareth himself unwilling to hear the same. For seeing a man taketh counsel concerning what is good or hurt of himself only, and not of his counsellor; and that counsel is a voluntary action, and therefore tendeth also to the good of the counsellor: there may often be just cause to suspect the counsellor. And though there be none, yet seeing counsel unwilling heard is a needless offence to him that is not willing to hear it, and offences tend all to the breach of peace: it is therefore against the law of nature to obtrude it.

9. A man that shall see these laws of nature set down and inferred with so many words, and so much ado, may think there is yet much more difficulty and subtlety required to acknowledge and do according to the said laws in every sudden occasion, when a man hath but a little time to consider. And while we consider man in most passions, as of anger, ambition, covetousness, vain glory, and the like that tend to the excluding of natural equality, it is true; but without these passions, there is an easy rule to know upon a sudden, whether the action I be to do, be against the law of nature or not: and it is but this, That a man imagine himself in the place of the party with whom he hath to do, and reciprocally him in his; which is no more but a changing (as it were) of the scales. For every man's passion weigheth heavy in his own scale, but not in the scale of his neighbour. And this rule is very well known and expressed by this old dictate, Quod tibi fieri non vis, alteri ne feceris.

10. These laws of nature, the sum whereof consisteth in forbidding us to be our own judges, and our own carvers, and in commanding us to accommodate one another; in case they should be observed by some, and not by others, would make the observers but a prey to them that should neglect them; leaving the good, both without defence against the wicked, and also with a charge to assist them: which is against the scope of the said laws, that are made only for the protection and defence of them that keep them. Reason therefore, and the law of nature over and above all these particular laws, doth dictate this law in general, That those particular laws be so far observed, as they subject us not to any incommodity, that in our own judgments may arise, by the neglect thereof in those towards whom we observe them; and consequently requireth no more but the desire and constant intention to endeavour and be ready to observe them, unless there be cause to the contrary in other men's refusal to observe them towards us. The force therefore of the law of nature is not in foro externo, till there be security for men to obey it; but is always in foro interno, wherein the action of obedience being unsafe, the will and readiness to perform is taken for the performance.

11. Amongst the laws of nature, customs and prescriptions are not numbered. For whatsoever action is against reason, though it be reiterated never so often, or that there be never so many precedents thereof, is still against reason, and therefore not a law of nature, but contrary to it. But consent and covenant may so alter the cases, which in the law of nature may be put, by changing the circumstances, that that which was reason before, may afterwards be against it; and yet is reason still the law. For though every man be bound to allow equality to another. yet if that other shall see cause to renounce the same, and make himself inferior, then, if from thenceforth he consider him as. inferior, he breaketh not thereby that law of nature that commandeth to allow equality. In sum, a man's own consent may abridge him of the liberty which the law of nature leaveth him, but custom not; nor can either of them abrogate either these, or any other law of nature.

12. And forasmuch as law (to speak properly) is a command, and these dictates, as they proceed from nature, are not commands; they are not therefore called laws in respect of nature, but in respect of the author of nature, God Almighty.

13. And seeing the laws of nature concern the conscience, not he only breaketh them that doth any action contrary, but also he whose action is conformable to them, in case he think it contrary. For though the action chance to be right, yet in his judgment he despiseth the law.

14. Every man by natural passion, calleth that good which pleaseth him for the present, or so far forth as he can foresee; and in like manner that which displeaseth him evil. And therefore he that foreseeth the whole way to his preservation (which is the end that every one by nature aimeth at) must also call it good, and the contrary evil. And this is that good and evil, which not every man in passion calleth so, but all men by reason. And therefore the fulfilling of all these laws is good in reason; and the breaking of them evil. And so also the habit, or disposition, or intention to fulfil them good; and the neglect of them evil. And from hence cometh that distinction of malum paenae, and malum culpae; for malum paenae is any pain or molestation of mind whatsoever; but malum culpae is that action which is contrary to reason and the law of nature; as also the habit of doing according to these and other laws of nature that tend to our preservation, is that we call VIRTUE; and the habit of doing the contrary, VICE. As for example, justice is that habit by which we stand to covenants, injustice the contrary vice; equity that habit by which we allow equality of nature, arrogance the contrary vice; gratitude the habit whereby we requite the benefit and trust of others, ingratitude the contrary vice; temperance the habit by which we abstain from all things that tend to our destruction, intemperance the contrary vice; prudence, the same with virtue in general. As for the common opinion, that virtue consisteth in mediocrity, and vice in extremes, I see no ground for it, nor can find any such mediocrity. Courage may be virtue, when the daring is extreme, if the cause be good; and extreme fear no vice when the danger is extreme. To give a man more than his due, is no injustice, though it be to give him less; and in gifts it is not the sum that maketh liberality, but the reason. And so in all other virtues and vices. I know that this doctrine of mediocrity is Aristotle's, but his opinions concerning virtue and vice, are no other than those which were received then, and are still by the generality of men unstudied; and therefore not very likely to be accurate.

15. The sum of virtue is to be sociable with them that will be sociable, and formidable to them that will not. And the same is the sum of the law of nature; for in being sociable, the law of nature taketh place by the way of peace and society; and to be formidable, is the law of nature in war, where to be feared is a protection a man hath from his own power; and as the former consisteth in actions of equity and justice, the latter consisteth in actions of honour. And equity, justice, and honour, contain all virtues whatsoever.