Two Books of the Elements of Universal Jurisprudence. Samuel Pufendorf

Status is a suppositive moral entity in which positive moral objects, and, above all, persons, are said to be.

1. Analogy of status with space.

2. Natural status of place.

3. When it begins.

4. Can an irrevocable right be sought for him who does not yet exist in nature?

5. Peace.

6. War.

7. Liberty, Servitude.

8. Adventitious particular statuses.

9. Status from location.

10. Admonition concerning expressions for statuses.

11. Obligations accompanying a definite kind of status can be derived from different principles.

12. Status of time.

1. STATUS is called a suppositive entity because it is made the basis, as it were, of positive moral affairs, so that on it they rest such moral existence as they have, and erect their actions and their effects. And thus it has a certain analogy with space, because space is likewise made the basis, as it were, of things natural, so that in it they rest such natural existence as they have and exercise their own physical motions.¹ And yet it differs from space in this respect, that space is a certain kind of substance, immovable and extended from the beginning and of itself, which exists even though things natural be removed; but status (as do also all moral affairs considered under their form and as such) possesses only the characteristic of quality and attribute, so that if physical things be removed, it can by no means preserve its existence.

2. Now status can be divided according to the analogy of space into status of place and status of time. The former is status which involves respect to some moral position, and it can be considered either indeterminately or determinately. Indeterminately considered, status is either natural or adventitious. The natural status of man, since it has no special designation, we shall for the time being call humanity, or human life. It is that condition in which every man whatsoever, by virtue of the very fact that he is a man, is constituted. It also involves the obligation of observing the law of nature both towards himself and towards other men, and of living with them on terms of social intercourse; as, further, the right of enjoying from any and every man the offices due by the law of nature, and of exercising other privileges which universally attend human life; as also the capacity of acquiring special rights for himself among men. To this is opposed the status or life of brutes which are united by no mutual bond of right, so that <9> they inflict upon one another whatever they can or will, even by violence, yet do no wrong thereby.²

3. Therefore, inasmuch as that obligation of which we have spoken, as also the rights, attend the natural status of man, it is not inappropriate in this place to inquire into the limits of this status, that is to say, when it takes its beginning, and when its end. The former seems to be placed rightly at the moment when an individual can be properly called a human being, even though there be still lacking those perfections which come to man only after some passage of time; and so, when he begins to live and feel, although he has not yet left his mother’s womb. Obligation, furthermore, since it requires for its consummation the recognition both of itself and of that which is being done, displays its efficacy only when a man knows how to compare his actions with a given norm and to distinguish them from one another. Rights, however, which cause to arise in others who already rejoice in the use of reason the obligation of performing something, and can profit those who are even ignorant of what is done, are in full force the instant a human being begins to exist.³ Wherefore, without doubt he does a wrong who takes away from one who is still in the womb that which was left him by testament or assigned him by some other title, even though it may happen that this right has accrued to him within the very first days of conception; and so, when he comes of age afterwards, he will be justified in vindicating that right.⁴ Moreover, it is sufficient for him to testify, at the time when his age enables him to do so properly, that wrong was done him against his will, especially as his dissent always ought to be presumed; just as he who has taken away or ruined my property in my absence has immediately done me a wrong, although I may find out about the damage only after an interval upon my return. A wrong, however, cannot be done to the body of an infant unless it actually has a body, or has its material so disposed, that, from an injury done to it in the process of formation, harm comes to the body. Therefore, if one has wrongfully violated a mother, so that her offspring is thereby born disabled in some member, we think that this offspring on reaching maturity can bring an action for injury against that individual, unless the latter can establish effective ignorance. However, since the shapeless seed within the first few days of conception can be called properly neither a man nor a human body, we are of the opinion that, if any one compass its corruption or abortion, it cannot be said that a wrong has been done against that seed; although, in fact, the individual in question is sinning against the law of nature by depriving human society of a member, and is doing a wrong both to the state, which he is despoiling of a citizen, and to the parents, whom he is despoiling of a hoped-for offspring. <10>

4. But the further question is raised, namely, whether a right can be acquired by one person for another even before he exists at all in nature; and with this effect, namely, that, if this right be alienated from him by another, or in any manner whatsoever diverted, he may, upon his birth in after time, be able to complain of a wrong, as it were, done to himself, and to demand complete restitution. Laying aside the fictions of the civil law, by which in certain cases the law sustains the person of those who are not yet in existence, we are of the opinion that no right can be claimed by one who is not yet in existence, except indirectly through the person of one who is now in existence, through whom that right will be transmitted to the one who is to be born thereafter; in such wise, however, that this right will not have its effect with regard to the one to be born, until after he has been born.⁵ And this situation arises when something is acquired by some one or is handed down to some one, to be kept in such a mode of possession that he lets it pass on down to his successors also. Here, however, a certain difference is found; for some things are conferred upon another in such wise that it makes no difference to the donor whether the property goes to the other’s descendants or not, although the recipient, so far as he is concerned, has the power to transmit it to his descendants. But some things are conferred in such wise that the donor retains for himself a certain right