Des lois auxquelles les hommes sont assujettis par leur propre nature ; des systèmes des jurisconsul

CHAP. 5: > Of the laws to which men are subject by their own nature; of the systems of jurists on natural laws; of what must be understood by the word right; and of the difference that exists between right and power or authority.

In the formation of man, as in the formation of all organized beings, nature follows a constant and invariable march; it creates them all with the same faculties, and subjects them to the same needs. If aberrations are sometimes noticed in some of them, these aberrations, produced by accidents, ordinarily disappear with the individuals on whom they have been observed, and the species is not affected by them.

Being born with the same organs, having to satisfy the same needs, and being subject to contracting the same habits, men prosper or decline by the same causes. They are numerous and strong wherever they satisfy their needs in a just measure; they are weak and rare wherever they can satisfy them only with difficulty. Hunger and thirst, cold and heat, fear and security, produce on all the same effects, when they have contracted the same habits and received the same development.

This connection that exists between a cause and the effect it produces is what is called a natural law, or simply a law. Thus, it is a law that the individual who abstains from taking food for a given time suffers a certain kind of pain, or perishes if the abstinence is too prolonged; it is another law that he who exposes his organs to the action of fire is warmed or burned, according to the distance at which he places himself; it is another law that he who is deprived of the quantity of breathable air necessary for him suffers or dies, according to the duration and extent of the privation; it is another law that the multiplication of the species results from the union of the sexes; it is another that pleasures too often repeated, or too long prolonged, weaken our organs; it is another that a moderate exercise strengthens them.

When one affirms that the human race is subject to such a law, one therefore does nothing other than indicate the relation that exists between two phenomena, one of which is constantly produced by the other. It is in the same sense that one speaks of the laws of the physical world: it is a law that such a seed germinates and multiplies, if it is deposited in the earth; that it is reduced to vapor and ashes, if it is exposed to the action of fire; that it is dissolved in another manner, if any animal feeds on it; it is another law of the physical world that such a body falls if it ceases to be supported; that such another rises, according to the manner in which it is compressed. In this sense, one can say, with Montesquieu, that all beings have their laws; that the physical world has its laws, and that celestial intelligences have theirs. All that this signifies is that, the nature of things being determined, the same causes will constantly produce the same effects; and that the effects cannot be different, unless one changes the nature of things.Taken thus in its most general sense, the word law has the same meaning as power: given two things, we consider as a law of their nature the action that one of them constantly exerts on the other in all similar cases. One observes that there is a continual action and reaction, whether between men and things, or between individuals of the same nature or species. This action and reaction are favorable or fatal to us, not as an effect of our will, but as a consequence of their own nature and of ours. It is not in our power to escape the action of things that nature has made a condition of our existence, and at the same time to escape destruction: no individual has the faculty to escape the action that atmospheric air or nutritive substances exert upon him, without immediately suffering the penalty. Every man is likewise faced with the alternative of either escaping the action of certain things, or suffering the bad effects they produce upon him: these are the laws of his nature.

To know all the laws to which the human race is subject, one would need to know the various ways in which men can be affected; the action that individuals of the same species or genus exert or can exert upon one another; the effects that are or can be produced upon them by the things that exist in nature; and the influence they can themselves exert on these things. Likewise, to know all the laws of the physical world, one would need to know what kind of action things exert or are capable of exerting upon one another.

The application of the analytical method to human habits and institutions has no other object than to investigate the laws according to which peoples prosper, decline, or remain stationary: it is the knowledge of these laws that forms the science of morality or of legislation. The affirmation that such an action or such an institution is in conformity with or contrary to the natural law of man can therefore mean nothing other than that from such a fact results such a good or bad consequence; it is a shorthand way of stating the result of a demonstration previously made, or judged useless because of the evidence of the facts. But if the demonstration has not been made, or if the facts are not recognized, the affirmation means absolutely nothing: it reduces to a begging of the question.

I have given to the words natural law the meaning generally given to them when one wishes to designate the relation of two facts, one of which is constantly produced by the other; but this is not how they are understood in jurisprudence; they serve only to designate a certain collection of maxims or principles, which the jurisconsults extend or restrict almost arbitrarily, and which they consider as the basis of all social laws.

Ulpian had defined natural laws as those that nature has taught to all animals. Modern jurisconsults, finding this definition flawed, and not wishing to equate man with beasts, have defined these laws as those that God has promulgated to the human race through right reason [11]. Others have thought that this definition could be made more just by saying that natural laws are those that eternal reason has engraved on all hearts [12]. Montesquieu had said that law, in general, is human reason insofar as it governs all the peoples of the earth [13]. Finally, others have believed that universal consent to a maxim was an infallible sign that this maxim was a natural law.

They have agreed no better on the things defined than on the definition; what some have considered a natural law has been considered by others as merely an arbitrary or positive law. Thus, while Domat asserts that it is a natural law that fathers leave their property to their children [14], Montesquieu affirms that natural law orders fathers to feed their children, but does not oblige them to make them heirs [15].

Natural laws, in the sense that jurisconsults attach to these two words, being invariable, and eternal reason having engraved them on all hearts, it seems that there should be no dispute over the number of them that exist. Writers, however, are far from being in agreement in this regard. Some place among the natural laws the principal maxims of morality; they say, for example, that these laws forbid man to deceive his fellows, to injure them, to attack their honor, or to usurp their properties. Others, and Montesquieu is among them, claim that, to know them, one must consider a man before the establishment of societies. The laws of nature, they say, will be those he would receive in that state [16]. Starting from this principle, Montesquieu reduces the natural laws to five: the first in importance is that which, by imprinting in us the idea of a creator, draws us toward him; the second, that which leads man to peace; the third, that which leads him to seek nourishment; the fourth, that which draws one sex toward the other; the fifth, that which leads men to live in society [17]. Montesquieu thus excludes from the number of natural laws all the maxims that the jurisconsults include in it.

There is another point on which the jurisconsults are no more in agreement than on the preceding one. Some admit that natural laws can be modified by positive laws; others are of the opinion that nothing can change them. Grotius thinks that this power does not belong even to the divinity, and his opinion is shared by several writers. Blackstone, while professing a profound respect for the authority of governments, denies them the power to change the laws of nature and of revelation. One must not suffer, he says, human laws to contradict those: if a human law orders us to do something forbidden by natural or divine laws, we are bound to transgress that human law [18]. Other jurisconsults, no less devoted to power, assert that natural laws are immutable, that they depend neither on time nor on place, and that they equally regulate the past and the future. These propositions are professed publicly and without contradiction, even in countries subject to absolute governments: they are considered as self-evident truths that it is not necessary to demonstrate.

In reading what the jurisconsults and philosophers have written on natural laws, a reflection comes to mind: one asks how it can be that laws which nature teaches to all animals, which God has promulgated to the human race through right reason, which eternal reason has engraved on all hearts, which are nothing but human reason insofar as it governs all the peoples of the earth, give rise to so many contradictions! If they are engraved on all hearts, or if the divinity itself has taken care to promulgate them to men, must they not be known as well by the ignorant man who cannot read as by the scholars who take care to explain them to us? Must not everyone define them in the same way, and know their provisions exactly? Yet we see that those who are reputed to know them best do not agree among themselves; that what some take for a natural law is considered by others as merely a positive law; and that the right reason of Domat has discovered at least ten times more natural laws than the genius of Montesquieu.

Universal consent, which is the sign by which one claims to recognize them, is of little help in this; for what will be the means by which such consent can be verified? Will one consult all the individuals who populate the earth? Will one ascertain the consent of past generations and of generations to come? If, in any place and at any time, one finds men who refuse their assent, will that be enough to command the belief of the rest of the world? Perhaps it will be said that in speaking of universal consent, one means only the consent of enlightened people; but then one must not say that natural laws were promulgated to the human race by right reason. One must reproduce the sophism reported by Locke, and say: The laws that all of humankind recognizes are natural; those that people of good sense recognize are admitted by all of humankind; we and our friends are people of good sense, therefore our maxims are natural laws [19].

The men who present their thoughts to us as natural laws, and who offer universal consent as proof, hardly trouble themselves to verify the existence of such consent. If they had observed the facts a little better, they would have been convinced of the impossibility of obtaining the assent of all men on almost anything; they would have seen the same actions honored in Greece and condemned in Rome, considered indifferent in one country and proscribed in another as essentially immoral; they would have seen the Japanese, having for certain domestic animals such a profound respect that they cannot punish them, and especially not put them to death, without special authorization from their emperor, yet expose or strangle their children without being subject to any penalty [20]; they would have seen, finally, the most absurd laws and the most immoral or atrocious customs held in veneration by entire nations, and the most innocent or even the most useful actions punished as the greatest crimes [21].

A famous English jurisconsult, Mr. Jeremy Bentham, struck by the contradictions of the jurisconsults, the incoherence of their definitions, and especially the uselessness of their systems, has claimed that no natural law exists, at least not in the sense generally attached to that word.

“Writers,” he said, “have taken this word as if it had a meaning of its own, as if there were a code of natural laws. They appeal to these laws, they cite them, they literally oppose them to the laws of legislators, and they do not perceive that these natural laws are laws of their own invention; that they all contradict one another on this supposed code; that they are reduced to affirming without proving; that there are as many systems as there are writers; and that by reasoning in this manner, one must always start over, because, concerning imaginary laws, everyone can advance whatever he pleases, and the disputes are interminable. If there were a law of nature that directed all men toward their common good, laws would be useless. It would be to use a reed to support an oak; it would be to light a torch to add to the light of the sun [22].”

The systems of the jurisconsults on natural laws do not appear to Mr. Bentham to be vain theories; he considers them to be very dangerous errors, the greatest enemies of reason, the most terrible weapons that can be used to destroy governments. According to him, one can no longer reason with fanatics armed with a natural right, which each one understands as he pleases, applies as it suits him, from which he can cede nothing, retract nothing, which is inflexible as well as unintelligible, which is consecrated in his eyes as a dogma, and from which one cannot deviate without crime. Instead, he says, of examining laws by their effects, instead of judging them as good or bad, they consider them by their relation to this supposed natural right; that is to say, they substitute for the reasoning of experience all the chimeras of their imagination.

After having demonstrated, by examples, how the errors of the jurisconsults slip from theory into practice, and how they incite citizens to transgress the laws, the same writer adds:

“Is this not to put weapons into the hands of all fanatics against all governments? In the immense variety of ideas on natural law and divine law, will not everyone find some reason to resist all human laws? Is there a single State that could maintain itself for a day, if everyone believed himself bound in conscience to resist the laws, unless they conformed to his particular ideas on natural law and revealed law? What a horrible bloodbath between all the interpreters of the code of nature and all the religious sects [23]!”

The systems of the jurisconsults on natural laws are based on two equally inadmissible suppositions: one, that the maxims to which the name of natural laws is given are innate ideas, common to all individuals of our species; the other, that men emerged from the state of nature at an epoch that cannot be indicated, but about whose existence no doubt can be raised. There is no error, especially in morality and legislation, that does not have more or less fatal consequences, and those I have just indicated have greatly retarded the progress of the human mind. I do not believe, however, that the greatest danger they present is the one the English philosopher seems to fear. Men are so generally inclined to submission that one hardly sees them revolt against their governments to support philosophical systems. If, in revolutions, men have been seen to make weapons of a few general principles to rouse entire populations; if these principles have become rallying cries against authority, it is because there were more real causes for insurrection. They were explained badly, no doubt; men were mistaken about the means of making their interests triumph; but they did not take up arms for chimeras. Far from fearing resistance to good laws, one should rather fear a too-easy submission to vicious laws. For every one people that resists a good institution, one can find ten that submit to institutions that are, and that they know to be, malevolent. The fear of offending a nation in its moral sentiments, and of driving it to resistance, must, all things considered, produce more good than evil, since there is at least as much enlightenment and morality among peoples as among governments, and since there is a keener and more immediate interest in being subject only to good laws.

The objection drawn from the fear of resistance can have all the less force, as it can be applied to all modes of reasoning. The affirmation that such a law is contrary to natural right may not disturb anyone's security; but the affirmation that such a law will be followed by such and such evils can alarm all men who feel threatened, and dispose them to resistance. The defenders of bad laws can also say that, if everyone can judge laws by their consequences or by their utility, one will put weapons into the hands of all reasoners against all governments; that, in the immense variety of ideas on what is useful or fatal, everyone will find some reason to resist all human laws; that there is not a single State that could maintain itself for a day, if everyone believed himself bound in conscience to resist the laws, unless they conformed to his particular ideas on utility.

The most serious disadvantage that results from the doctrines of the jurisconsults on natural laws is therefore not the resistance to which these doctrines can excite peoples against their governments; it lies in the obstacles they place in the way of the progress of our knowledge. Once one has laid down as a principle that the natural laws of man are engraved on all minds or on all hearts, there is nothing more to add: no one can claim to be more learned than the others. A man who would confess that he has something to learn would have to be considered, in a way, a monster; he would be, in the moral sphere, what an individual born deprived of the organs of sight would be in the physical.

Whenever, in a discussion, one sees on both sides an equal good faith and a sincere desire to arrive at the good, one may suspect that there is in the language some ill-defined expression that does not have the same meaning in the minds of all who use it; that the truth is perceived only in a confused manner; and that they would quickly come to an agreement if they knew how to express themselves better, that is, if the value of each word were better determined. I will endeavor here to set aside disputes over words, and to examine what is true and false in the system of the jurisconsults, and in what way this system approaches or diverges from that of the learned Englishman. To undertake this examination, it is necessary to recall some of the facts I have previously stated; because these facts can be contested neither by the defenders nor by the adversaries of what is called natural right; and because, if one wishes to agree on the language, one must begin by agreeing on the phenomena to be observed.The causes that make the human species prosper or decline produce the same results everywhere. It may sometimes depend on us to bring them into being or to destroy them; but when they exist, it is not in our power to prevent their effects. A man can indeed abstain from taking food; but he cannot prevent absolute abstinence from destroying him. He can feed himself only on unhealthy foods, but he cannot make these foods give him health and strength. He can give himself over to this or that vice, but he cannot make this vice not be followed by this or that evil. He can fail to keep the word he has given, but he cannot prevent deceit from producing mistrust. He can attack his fellow man, but he cannot prevent the attack from producing resistance, fear, malevolence. He can indeed fail to care for his children, but he cannot prevent this abandonment from being followed by a multitude of miseries, and the extinction of his line.

One can say for the causes productive of good what we say for the causes productive of evil: wherever they exist, they will be followed by the same results. It is as impossible to prevent a people that possesses good institutions from prospering as it is impossible to prevent a people that is subject to bad laws from declining. Now, these causes of prosperity or decline, producing always the same effects, being inherent in our nature, have been considered as laws from which it is impossible for the human species to escape. In this sense, it is true to say with Grotius and Blackstone that governments do not have the power to change them; they can violate them, as one can violate all laws, but they cannot prevent the violation from being followed by its penalty. If it is in human nature, for example, that the lack of security produces misery, it may be in the power of a government to give society no guarantee; it is not in its power to prevent this privation from producing the result that nature has attached to it.

But the causes that contribute to the prosperity or decadence of a people are very numerous; and it is given to few people to know them. Most men are happy or miserable without suspecting what produces their misery or their well-being; even experience does not enlighten them, because they do not know how to trace back from effects to causes, and often they do not even suspect that they could be otherwise than they are. If they happen to perceive the consequences of a certain habit or a certain institution, they lack the energy to adopt or to destroy it, according to whether it is good or bad. In general, peoples profit little from the experiments that are performed upon them; bad habits and bad laws distort judgment, at the same time that they destroy the physical faculties. It is therefore very difficult for them to perceive the good and bad consequences of human actions and institutions; to know, in a word, what are the laws according to which peoples prosper or decline.

The jurisconsults, in this regard, make all progress impossible, by seeing in the laws to which the human race is subject only maxims that are in some sense theological, whose origin and consequences must not be examined. According to some, these maxims are found in all heads; according to others, they are engraved on all hearts. To know them, it is enough to look inward, and to consult the ideas or sentiments one brings into the world; it is for this reason, say some of them, that natural laws regulate the past, while positive laws regulate only the future [24].

It is by reasoning on a false analogy that the jurisconsults have been led to think that all men had knowledge of the laws to which the human race is subject by its nature. We admit, in penal legislation, that no judge can inflict a punishment except by virtue of a previously promulgated law; we want every individual, before committing an action judged bad, to be able to have knowledge of the penalty to which he exposes himself: one would find it unjust and barbarous to punish a person for having violated a law he did not know. Now, men have been unwilling to suppose that the author of our nature possesses less justice and reason than the worst of our governments; if he has subjected the human race to invariable laws; if he has willed that misery and decadence be the inevitable consequence of a certain conduct, and that prosperity and growth be the result of a contrary conduct, must one not conclude that he has given us knowledge of the laws he has imposed on us? Could one, without offending his goodness and his justice, admit that he punishes us because we violate laws we do not know?

It is quite ordinary for men to lend to providence their own way of thinking and acting, and then to substitute suppositions for facts so as not to find it at fault. However, this manner of proceeding is unscientific; and, if one were to make use of it in the study of the physical sciences, it is probable that one would not make a great number of discoveries. The laws that govern plants and celestial bodies are as ancient, as invariable as those according to which a people prospers or declines. Ignorance of the former can be as fatal to us as ignorance of the latter, and we find advantages in the knowledge of the one, as in the knowledge of the other. But must one say, for that reason, that astronomical laws are those that God has promulgated to the human race through right reason? Must one conclude from this that eternal reason has engraved the knowledge of botany on all hearts? God has not promulgated the laws to which our nature is subject otherwise than he has promulgated the laws of the physical world. He has no more engraved them on our hearts or in our minds than he has engraved there the knowledge of surgery or of medicine.

The idea that providence could not have proceeded otherwise than governments, in determining the laws to which human nature would be subject, is not the only one that has served as a basis for the systems of modern jurisconsults on natural laws. The Roman jurisconsults having admitted a similar system, and their decisions having become laws, they have been admitted as the very expression of truth. It was believed that the respect owed to these decisions did not permit them to be examined, and it was not even supposed that, among them, some could be found to be false. The science of legislation thus became a kind of theology that had its dogmas and its creed, and before which human reason had to bow. It was easier, moreover, to adopt a ready-made system and to believe it on its word, than to examine things in themselves, and to seek the truth through observation. On the other hand, the habit of seeing the foundations of morality elsewhere than in the very nature of man was bound to lead minds astray in the search for the principles of legislation. It was natural that he who found an action good or bad only for the reason that it was commanded or forbidden by the fundamental book of his religion, should imagine that in legislation there was nothing true or false but what a certain code had admitted or rejected.

There are, however, in a law, things that must be clearly distinguished. First, the power that belongs to it, whether it commands or prohibits; this is generally the least contested and least contestable part. The power of a law is a fact that manifests itself through acts against those who refuse to recognize it. There are, in the second place, the good or bad consequences it produces: these are again facts to which one can be forced to submit, but which everyone has the faculty to judge. Finally, there can be, in the description of a law, declarations about what things are. These declarations change nothing in the nature of things; they are opinions similar to those that persons without authority could publish; they are incapable of either creating anything or destroying anything. All the governments of the world could unite to declare that blood does not circulate in our veins, or that the earth does not turn around the sun, and nature would nonetheless follow its course: what is true would continue to be so, what is false would always be so. Now, the opinions of the Roman jurisconsults on the laws of our nature are opinions of the same kind; it matters little that they have been inserted into a code of written laws, it matters little that they have been reproduced by a multitude of writers; these circumstances cannot give them a truth they would not have by themselves.

Montesquieu, in adopting a system of his own, was carried away by two errors; he first admitted innate ideas, and he thought that at some epoch, man had left his natural state, to pass into a state that is not that of his own nature. “To know the natural laws well,” he says, “one must consider a man before the establishment of societies. The laws of nature are those he would receive in such a state.”

Nations have passed through various states; they have started from the most complete ignorance to arrive at the point where we see them; they have, little by little, become more enlightened, better provided with things necessary for their existence, and consequently much more numerous. But it is not by violating the laws of their own nature that they have made progress; it is, on the contrary, by learning to know them, and by conforming to them more and more each day; it is by studying the causes that can make them prosper or decline; it is by multiplying the one and setting aside the other.

Man does not change his nature by passing from a state of ignorance and destitution to a state where he knows his interests better, and where he can more easily satisfy his needs. Moderate work, the abundance of things necessary for life, peace, security, moderation in enjoyments, would produce on a tribe of savages exactly the same effects as on a civilized people. Likewise, excessive work or absolute idleness, the scarcity and poor quality of sustenance, the fear of being attacked at any moment by enemies, a continual state of war, would produce on the most civilized people the same effects as on the most barbarous peoples. A nation tending by its own nature toward its prosperity, it ceases to be in its natural state only when some force impresses upon it a retrograde movement, and makes it decline.

Mr. Bentham, after having refuted the system of the jurisconsults on natural laws, exposes his own ideas on the same subject. He first distinguishes in us two kinds of inclinations: those that appear to exist independently of human societies, and which must have preceded the establishment of political and civil laws, and those that could have arisen only after the establishment of societies. He gives exclusively to the former the name of natural laws: “There,” he says, “is the true sense of this word.” But this is the error that I have already pointed out, and which consists in believing that the human race leaves its natural state when it follows a progressive march. The inclinations or sentiments of man develop and are rectified as the intellectual faculties extend, and it would be difficult to see why the inclinations of an ignorant and deceived individual should take the name of natural, rather than the inclinations of a man who is enlightened and who has given his sentiments a good direction. The qualification would be much more suitable, it seems, to the latter than to the former, since, in effect, the one is more favorable than the other to the prosperity of the human race.

“What is natural in man,” adds Mr. Bentham, “are sentiments of pain or pleasure, inclinations: but to call these sentiments and these inclinations laws is to introduce a false and dangerous idea; it is to put language in opposition with itself: for one must make laws precisely to repress these inclinations. Instead of regarding them as laws, one must submit them to laws. It is against the strongest natural inclinations that one must make the most repressive laws. If there were a law of nature that directed all men toward their common good, laws would be useless. It would be to use a reed to support an oak; it would be to light a torch to add to the light of the sun.”

After having reported a passage from Blackstone who, relying on the authority of Montesquieu, says that nature imposes on parents the obligation to provide for the maintenance of their children, and that it is this obligation that has caused marriage to be established, Mr. Bentham adds:

“Parents are disposed to raise their children, parents ought to raise their children: these are two different propositions. The first does not suppose the second; the second does not suppose the first. There are doubtless very strong reasons for imposing on parents the obligation to feed their children. Why do Blackstone and Montesquieu not give them? Why do they refer to what they call the law of nature? What is this law of nature that needs a secondary law from another legislator? If this natural obligation existed, as Montesquieu says, far from serving as the foundation of marriage, it would prove its uselessness, at least for the purpose he assigns. One of the objects of marriage is precisely to supplement the insufficiency of natural affection. It is destined to convert into obligation this inclination of parents which would not always be strong enough to overcome the pains and troubles of education [25].”

I have said, and I am obliged to repeat, that men do not prosper under all conditions. There exist for them causes of prosperity and causes of decline, which constantly produce the same effects. These causes or these conditions being in the nature of things, we can call them natural laws, since the goods or the evils that result from them are infallible. From the fact that these laws are not known to us, or that it is possible for us to violate them, one must not conclude that they do not exist. It is with human actions as with all things that exist; they act independently of the knowledge we may have of their effects. A man who takes poison believing he is taking a remedy, or a remedy believing he is taking poison, will experience the action of what he has taken, as if he had acted in full knowledge of the cause. It is the same with him who gives himself over to a vicious or virtuous habit; these habits act upon him and upon the beings of his species, independently of the knowledge he may have of the effects they produce. Doubtless, men who know the laws to which human nature is subject can violate them like those who do not know them; but that does not prove their non-existence. There is no one who cannot commit some of the crimes that the laws punish; is that enough to contest the existence or the efficacy of these laws? Blackstone and Montesquieu, instead of vaguely citing the natural law as the basis of the obligation imposed on parents to raise their children, would have done better, no doubt, to make known the causes that determine parents to care for them; but it is precisely these causes that are the laws of our nature, since they exist independently of our will, and their effects are inevitable [26].It is not accurate to say that the most repressive laws must be made against the strongest natural inclinations, and that if there were a law of nature that directed all men toward their common good, laws would be useless. If that were true, laws would have to be made against the tendency that carries men toward their preservation and their prosperity. Men who make laws, if they are neither tyrants nor unsound minds, examine the way things happen in the world; they calculate the goods and evils that result from a certain way of being or acting, and if they see that, by the nature of things, a certain fact always produces baneful consequences, they signal it as harmful; and, so that no one may be tempted to perform it, they add a new penalty to the one that the fact might have produced for its author; they make the punishment stronger, or more regular, or more inevitable. If they find, on the contrary, that a certain fact produces more good than evil, they signal it again; they sometimes add a reward to the reward that nature itself had attached to it, or else they increase, for him who omits it, the evil that would have resulted for him from the omission. But the action that these men prescribe or prohibit is not favorable or baneful for the reason that it has pleased them to declare it so, and to reward or punish it; it is so by the consequences that result from it independently of their will. It is not the physician who causes a certain way of life to produce a certain illness, or a certain plant to cure a certain malady; his science is confined to showing what things are, and to demonstrating the connection of effects and causes. It is the same with the men who describe or make laws; they do not make actions good or bad; they make known what they are; they favor some and diminish the number of others. The only difference consists in the greater or lesser degree of authority.

In acting thus, the men invested with power do not repress the strongest natural inclinations of the human race; on the contrary, they obey them, they support them, and they make their effects more infallible. If legislators wished to impress upon peoples a movement contrary to the strongest inclinations of man, to those that are most in his nature, where would they find their point of support? Would they place themselves outside of human nature? Would their instruments not also be men? In employing such instruments, would they not be conducting themselves like children who, finding themselves enclosed in a vessel, would want to make it go against the current by pushing it with their hands [27]? One must not say, therefore, that if there existed in the human species a force or a law that directed men toward their common good, all laws would be useless. It would be truer to say, on the contrary, that if this force did not exist, all laws would be powerless, or that only bad laws would exist. Peoples would march toward their ruin despite all the efforts one might make to hold them back, or, to put it better, no one would make such efforts, and peoples would never have existed, for the human race would have perished at its formation. The men who describe or publish laws and those who compose books are not of a different nature from those for whom these laws and books are made: all are carried along by the same movement. It would be senseless to believe that the governing or legislative part of nations tends, by its own nature, toward the perfection of peoples, while the governed part tends naturally toward its ruin. The contrary proposition would be much easier to establish, at least in countries where the population exercises no influence on public affairs.

There is an illusion that I must point out here, because it exercises a great influence on ideas, and because it is often reproduced, whether in legislation or in morality. When one speaks of legislators and of peoples, it seems that these are beings so distinct that they are not of the same nature; the former are presented as a kind of gods, who give movement and life to all that is placed beneath them; the latter appear, on the contrary, as beings deprived of action, or having only an irregular or disordered action; laws then seem to be powers placed outside of human nature, and show themselves as a power that is in some way supernatural. But, if one does not let oneself be deceived by the word, one will see, in legislators and in peoples, only beings of the same nature, subject to the same needs, the same passions, the same prejudices; one will see, in the formation of certain laws, one part of the human race acting upon another part, at the same time that it acts upon itself. This action of a people or a part of a people, upon itself or upon a part of itself, is just as simple as that which an individual exercises upon his own person. If its effect is to make him prosper, one can say that it is natural or in conformity with his nature; if, on the contrary, it tends to degrade him or to make him miserable, one can say that it is contrary to his nature, or that it is not natural to him. The savage who pursues with vengeance the murderer of his son, his father, or his friend, obeys, it is said, the law of his own nature: one must consider as a natural sanction the punishment he inflicts on the one who has offended him. But why should one not equally consider as natural actions the punishments that collections of men establish or inflict for the common security, and the precautions they take to make the punishment more just, more certain, and more exemplary? Did it depend on one part of the human race to place itself outside of its own nature?

The systems of the jurisconsults on natural laws consecrate a certain number of maxims whose observance is generally useful for the human race: but these maxims, presented as they are, carry no light with them. Thus, when we are assured that natural law orders the father to care for his children, spouses to be faithful to one another, debtors to fulfill their commitments, no one learns anything. For the teaching to be profitable, it would be necessary to expound the general facts that gave rise to these maxims, and then to present all the consequences to which one is necessarily led by violating or observing them: one would then see what are the laws to which human nature is subject. On the other hand, by laying down as a principle that there are no other natural laws than those that each person finds in his mind or in his heart, one authorizes any individual who has received a vicious education to give himself over to all the disorders that he has not been taught to detest; and one makes all progress in morality or in legislation impossible, since no one can believe himself less instructed than another.

But the system that admits the existence of no natural law, or that considers legislation as a work that is in some way artificial, is not exempt from disadvantages. It is clear, first, that if the human race were not subject to invariable rules of prosperity or decline; if, its organization being given, the same causes did not constantly produce on it the same effects, no science would be possible. The knowledge one might acquire would be fruitless, since no rule of conduct could result from it. By presenting laws as the work of a certain number of individuals, and not as consequences of the very nature of man, one opens a vast field to arbitrariness, since the spirit of system ceases to have any bounds. Finally, by laying down as a principle that the strongest tendency of the human race does not carry men toward their perfection, and that the purpose of laws is to repress their most natural and most energetic sentiments, one is obliged to consider the individuals by whom laws are made, declared, or described, as a particular species, whose natural tendency carries them toward the good, while the general tendency of peoples is toward evil.

The method of reasoning used by the illustrious scholar who did not fear to attack the ideas of his predecessors repels, it is true, such consequences; but the inaccuracies that escaped him can be used to combat the great truths he established. He may recognize with us that the human race is invariable in its nature; that the same causes always produce on it the same effects; that it declines or prospers according to immutable rules; it will be enough that he has refused the name of natural laws to this necessary chain of effects and causes, to raise against him a multitude of sentiments and prejudices, and to cause the most clearly demonstrated truths to be rejected.

I have said that the human race does not leave its natural state when it follows a progressive march, and that, perfectibility being in its nature, the more it perfects itself, the more natural to it is the state in which it places itself. It follows from this that one falls into a self-contradiction when one places in opposition the laws that are called natural with the laws that are called positive. If a people follows the march that is natural to it when it makes progress, it obeys the laws of its own nature when it adopts a good institution or destroys a bad one. One can place in opposition a law that produces good effects with a law that produces bad ones; a good law with a bad law; a natural law with a law contrary to the nature of man; one then knows what that means. But to oppose natural laws to social laws, the laws of nature to positive laws, is to put oneself in contradiction with oneself, or to suppose that man leaves his natural state as he rids himself of his errors, his vices, and his miseries.

Having examined the principal systems that have been made on natural laws, I will end this chapter with a few observations on what is called natural right; it is exactly the same subject given by a different expression.

There is no one, having some knowledge of our language, who does not know the meaning of the adjective droit, droite, when it is applied to a material object; no one needs to have defined for him what a ligne droite [straight line] or an arbre droit [straight tree] is. The same word, used in a figurative or moral sense, has a similar meaning. Thus, admitting that the human race tends naturally toward its perfection or its prosperity, one will consider as right any action that tends toward this goal by the shortest path. One will say that such a man naturally has the right to do such a thing, to indicate that it is useful to the human race that this thing can be freely done by him and by all men who find themselves in the same position as he. One will say that such an act is contrary to natural right, to indicate that it places an obstacle to actions useful to men, or that it causes baneful actions to be executed. This is again a shorthand expression that supposes a demonstration has been made, or judged useless because of the evidence of the facts; but this expression means nothing whenever no demonstration has taken place, and the facts are not established.

When one speaks of natural right as a science, one can designate by that only the knowledge of the laws according to which the human race prospers or declines: it is the science of legislation. For most jurisconsults, it is quite simply the knowledge of a certain number of maxims, whose causes and consequences are not investigated.

The name positive right is given to the laws particular to each nation, abstracting from the good and evil they produce; it is the science of the jurisconsults.

The word right is often confused with the words faculty, power, authority: these words are far, however, from having the same meaning. Taking the word right in the sense it naturally has, nothing that is right can be baneful to men, considered from a general point of view; but one cannot equally say that no act of power or authority can be malevolent. A father has the faculty or the power to have his children raised as he judges suitable; if he has them badly raised, he abuses his power, but he does not use a right. A magistrate on his bench has the power or the faculty to pronounce a judgment against his conscience; but if, after having rigorously observed the external forms prescribed to him, he sends an innocent man to the scaffold, no one will dare to say that he has made use of his rights. Authority and power suppose, in those who are invested with them, duties to fulfill: a right, in one individual, places in others the duty or the obligation [28].

Giving to the words natural laws the meaning we have attached to them, what is the most natural state for man? It is evidently that in which he prospers best, that in which all his moral, intellectual, and physical faculties develop with the most freedom. The state that is most against his nature is that in which he suffers most, that which presents to the perfection and growth of his species the most numerous and strongest obstacles.