The Principles of Natural and Politic Law. Jean-Jacques Burlamaqui
unjust, and indifferent.
IV. The other manner in which we may view the morality of human actions, is with regard to their conformity or opposition to the law. In this respect, actions are divided into good or just, bad or unjust, and indifferent.
An action morally good or just, is that which in itself is exactly conformable to some obligatory law, and moreover is attended with the circumstances and conditions required by the legislator.
I said, 1. A good or just action; for there is properly no difference between the goodness and justice of actions; and there is no necessity to deviate here from the common language, which confounds these two ideas.2 The distinction which Puffendorf makes between these two qualities is quite arbitrary, and even he himself afterwards confounds them.*<114>
2. I said, an action morally good; because we do not consider here the intrinsic and natural goodness of actions, by virtue of which they redound to the physical good of man; but only the relation of agreeableness they have to the law, which constitutes their moral goodness. And though these two sorts of goodness are always found inseparably united in things ordained by natural law, yet we must not confound these two different relations.
Conditions requisite to render an action morally good.
V. In fine, to distinguish the general conditions, whose concurrence is necessary in order to render an action morally good, with respect to the agent; I have added, that this action ought to be in itself exactly conformable to the law, and accompanied moreover with the circumstances and conditions required by the legislator. And firstly, it is necessary that this action should comply exactly, and through all its parts, with the tenor of what the law ordains. For as a right line is that whose points correspond to the rule without the least deviation; in like manner an action, rigorously speaking, cannot be just, good, or right, unless it agrees exactly, and in every respect with the law. But even this is not sufficient; the action must be performed also pursuant to the manner required and intended by the legislator. And in the first place, it is necessary it be done with a competent knowledge, that is, we must know that what we do is conformable to the law: otherwise the legislator would have no regard for the action, and our labour would be intirely lost. In the next place, we must act with an upright intention and for a good end, namely, to fulfill the views of the legislator, and to <115> pay a due obedience to the law: For if the agent’s intention be bad, the action, instead of being deemed good, may be imputed to him as vicious. In fine, we should act through a good motive, I mean a principle of respect for the sovereign, of submission to the law, and from a love of our duty; for plain it is, that all these conditions are required by the legislator.3
Of the nature of bad or unjust actions.
VI. What has been above affirmed concerning good actions, sufficiently shews us the nature of those which are bad or unjust. These are, in general, such as of themselves, or by their concomitant circumstances, are contrary to the disposition of an obligatory law, or to the intention of the legislator.
There are, therefore, two general springs of injustice in human actions; one proceeds from the action considered in itself, and from its manifest opposition to what is commanded or prohibited by the law. Such as, for example, the murder of an innocent person. And all these kinds of actions intrinsically bad can never become good, whatever may be in other respects the intention or motive of the agent. We cannot employ a criminal action as a lawful means to attain an end in itself good; and thus we are to understand the common maxim, evil must not be done, that good may come of it. But an action intrinsically and as to its substance good, may become bad, if it be accompanied with circumstances directly contrary to the legislator’s intention; as for instance, if it be done with a bad view, and through a vicious motive. To be liberal and generous towards our fellow-citizens, <116> is a good and commendable thing in itself; but if this generosity is practised merely with ambitious views, in order to become insensibly master of the commonwealth, and to oppress the public liberty; the perversity of the motive, and the injustice of the design, render this action criminal.4
All just actions are equally just; but unjust actions are more or less unjust.
VII. All just actions are, properly speaking, equally just; by reason that they have all an exact conformity to the law. It is not the same with unjust or bad actions; which, according as they are more or less opposite to the law, are more or less vicious; similar in this respect to curve lines, which are more or less so, in proportion as they deviate from the rule. We may therefore be several ways wanting in our duty. Sometimes people violate the law deliberately, and with malice prepense; which is undoubtedly the very highest degree of iniquity, because this kind of conduct manifestly indicates a formal and reflective contempt of the legislator and his orders; but sometimes we are apt to sin through neglect and inadvertency, which is rather a fault than a crime. Besides, it is plain that this neglect has its degrees, and may be greater or lesser, and deserving of more or less censure. And as in every thing unsusceptible of an exact and mathematical measure, we may always distinguish at least three degrees, namely, two extremes and a middle: Hence the civilians distinguish three degrees of fault or negligence; a gross fault, a slight one, and a very slight one. It is sufficient to have mentioned these principles, the explication and distinct account whereof will naturally take place, <117> when we come to the particular questions relating to them.
Essential character of unjust actions.
VIII. But we must carefully observe, that what essentially constitutes the nature of an unjust action, is its direct opposition or contrariety to the disposition of the law, or to the intention of the legislator; which produces an intrinsic defect in the matter or form of that action. For though in order to render an action morally good, it is necessary, as we have already observed, that it be intirely conformable to the law, with respect as well to the substance, as to the manner and circumstances; yet we must not from thence conclude, that the defect of some of those conditions always renders an action positively bad or criminal. To produce this effect, there must be a direct opposition, or formal contrariety between the action and the law; a simple defect of conformity being insufficient for that purpose. This defect is, indeed, sufficient to render an action not positively good or just; however, it does not become therefore bad, but only indifferent. For example, if we perform an action good in itself, without knowing for what reason, or even that it is commanded by the law; or if we act through a different motive from that prescribed by the law, but in itself innocent and not vicious; the action is reputed neither good nor bad, but merely indifferent.
Of indifferent actions.
IX. There is therefore such a thing as indifferent actions, which hold a middle rank, as it were, between just and unjust. These are such as are neither <118> commanded nor prohibited, but which the law leaves us at liberty to do or to omit, according as we think proper. That is, those actions are referred to a law of simple permission, and not to an obligatory law.
Now that such actions there are, is what no one can reasonably question. For what a number of things are there, which being neither commanded nor forbidden by any law, whether divine or human, have consequently nothing obligatory in their nature, but are left to our liberty, to do or to omit, just as we think proper? It is therefore an idle subtlety in schoolmen to pretend that an action cannot be indifferent, unless it be in an abstract consideration, as stript of all the particular circumstances of person, time, place, intention, and manner. An action divested of all these circumstances, is a mere Ens rationis; and if there be really any indifferent actions, as undoubtedly there are, they must be relative to particular circumstances of person, time, and place, &c.5
Division of good and bad actions.
X. Good or bad actions may be ranged under different classes, according to the object to which they relate. Good actions referred to God, are comprised under the name of Piety. Those which relate to ourselves, are distinguished by the words, Wisdom, Temperance, Moderation. Those which concern other men, are included under the terms of Justice and Benevolence. We only anticipate here the mentioning of this distinction, because we must return to it again when we come to treat of natural law. The same distinction is applicable to bad ac-<119>tions, which belong either to Impiety, Intemperance,