SAMUEL PUFENDORF
XVIIth thinker, German lawyer
To become Familiar with natural law you have to investigate human nature first. Pufendorf also Believed in dualistic human nature that consists of two separate components
Components of DUALISTIC HUMAN NATURE:
1. Entia physica – biological nature
2. Entia moralia – spiritual nature, social nature
Human being is the only being that possesses both natures : physica & moralia. Animals possess only biological whilst God and angels possess only entia moralia.
LEGAL SYSTEM OF NATURAL LAW – HIERACHY OF VALUES:
1. HUMAN DIGNITY – we are exceptional and other from the rest of reality. It`s a source of rights if individual
2. EQUALITY – every human being possess the same nature so it means that we are similar one to another. It also means that is shouldn`t be unjustified privileges and discrimination
3. INDIVIDUAL FREEDOM
4. DISTINCTION BETWEEN MRALLY CORREST AND MORALLY EVIL
5. TOLLERANCE
DIFFERENCES BETWEEN ANIMALS AND HUMANS – comparing entia moralica to entia physica we are comparing human beings to animals
each enables us to discover a separate value of natural law:
1. determinism (physica) and freedom (moralia)
determinism – animals are determined in their activities in a sense that they are subject to cause ad effect mechanism. They can no go beyond it. They are bound by mechanism.
CAUSE AND EFFECT MECHANISM
If cause A appears, the result B will inevitably follow. Hunger-> finding food sexual verges -> copulation – that is how animals operate regardless that fact the pressure are internal or external.
Animals are causally oriented – they act because there is a cause of action.
Freedom (liberty) – human being act independently of any cause and effect mechanism – there aren’t enslaved by its rules. Whereas animals have no choice, people always possess certain choice – we are free to resist any internal or external pressure/feeling. Human being are the only one entity that is able to go/play against SELF-PRESERVATION INSTINCT. As a consequence human is only being that is capable to consciously commit suicide. Human being are not causally oriented but we are teleologically oriented – we act because we want to achieve certain purpose not because of certain internal or external caus. Human acts because he want to, not has to. We eat/copulate/live because of our will. Every voluntary action it a due to our free choice.
There is only one situation when human being doesn’t have free choice: overwhelming physical force – exercise against us.
INDIVIDUAL FREEDOM is third value of natural law
2. Opposition between amorality(immorality) and morality.
Animal behavior can not be evaluated (judged) from a moral standard- from a standpoint of right and wrong – it is pointless to judge – animal behavior is not subjected to moral standpoint.
World of enthia moralia is different – it is possible to formulate moral evaluation.
Pufendorf believes that the same physical action can evoke different moral judgment depends on the context - circumstances of action.
Only knowledge of circumstances enables us to judge the action.
There is a necessity to distinguish between good and evil .
God can, we can , statutory law has to permit morally good action and prohibit and punish evil action.
DISTINCTION BETWEEN MORALLY CORRECT AND MORALLY EVIL THINGS is fourth value of natural law.
3. Uniformity and difference
Animals are almost identical in their behavioral patterns. They act similarly in similar circumstances. This in world of sameness – uniformity, similarity.
Final decision is determined by circumstances.
No Boundary of species – when face to danger they operate similarly
In human world operate word is “difference”. It is almost imposible to remove it. We have different values, personalities, role models, conditions of living – it is inevitable element of our existence
TOLERANCE – next (fifth) value of natural law as a result of differences .
We shouldn’t attempt to eliminate those differences – DIFFERENCES make us indistinguishable because we are individuals. Tolerance is always limited –
LIMITS OF TOLERANCE: tolerance and acceptance is not the same. Tolerance is bearing with something stupid, wrong or unpleasant, but we don’t have to accept it.
Values of natural law are generally placed in the sphere of enthia moralia as they are results of it - not in the sphere of enthia physica. It has to be learned – it doesn’t come natural.
Our natural instinct is behaving in evil way - in this sense natural law is unnatural.
VALITY OF NATUAL LAW - when natural law becomes valid
MODES OF EXISTENCE OF HUMAN BEINGS (ways in which human beings can live):
1. Inbecilitas State– this is face of solitary life (alone life). State of caveman existence.
Features:
- no stable communities.
- simplicity of human relationships
- no long term plans
- no complicated social institutions
In this state natural law does not exist in a sense that it is not observed by anyone – nobody respect it but validates it.
2. Socialitas State – state of social existence.
-stable communities appears : families, political communities, nations itd
-net of social relationships gets more complicated – more complexed. Relations are deapper and stronger
-long-term planning is possible.
-new social institution (like market/ religion/ money) appears
Natural law is obligatory and it is valid but it is not universally observed. Everybody at some point violate rules of it L but we can judge our behavior from natural law standpoint.
3. Humanitas State – this is ideal state which is impossible to achieve but we should aspire to formulate such a state. It is UTOPIA. Natural law exist, is valid and is universally respected. As Pufendorf elaborated that in state of humanitas everybody treats others in a manner he/she wishes to be treated.
CONCEPTS OF NATURE OF STATES
1. STATE NATURE – NATURAL STATE –
This is a situation that existed before the immerge of governments or would exist if there was no governments.
State of nature is another name of state of state of inbecilitas – people lives short and unhappy life. At some point people get tired with their mode of existence and that is why they decide to sign the social contract.
2. SOCIAL CONTRACT
Agreement concerning the establish of government that includes basic rules and principles of political system.
STAGES IN WHICH SOCIAL CONTRACT HAPPENS
1. PEOPLE CREATE A SOCIETY - the moment when political society is formed. People constitutes a part of larger community – individuals become also member of biggest whole
2.THE ADOPTION OF CONSTITUTIONAL RULES – moment when people form basic rules of political system
3.TRANSFERE OF POWER INTO THE HANDS OF SOVEREIGN. - the moment in accordance to basic rules of political system when society surrender execution of its powers and hand it over on sovereign
As a consequence of those 3 stages of contract:
- Giving power to certain sovereign does not brings us back to state of nature - we go back to second stage – to constitutional rules (when they were adopted )
- it is not true that we have no alternative if we overthrow government - it will not bring us to state of nature even if we change constitutional rules. If we overthrow government we are still a society.
- If we eliminate constitutional law we will go back to first stage no to zero level – natural state.
ISSUE OF RESISTENCE
Human being have no right to resist and overthrow government that breaks natural law. No right to resistance.
Government is obligated to guarantee peace and order, because it is bounded with social contract, whereas society is obliged to observe the rules without any civil disobedience
PUFENDORF’S THEORY OF PUNISHEMNT
Pufendorf focused on issues like why do we punish criminals and what is the purpose of punishment. Today we use those 4 purposes he indicated but with different terminology.
GENERAL PURPOSES OF PUNISHMENT
1. GENERAL PREVENTION - (deterrence) - punishment is supposed to threaten society from committing a crime so they wouldn’t follow footsteps of criminals
2. ...