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.        SPECIFIC PREVENTION - (particular prevention) -  punishment is supposed to discourage criminal from committing a crime, stop them from committing offences AGAIN : criminal goes to prison once and do not want to come back again

3.        RESOCIALISATION - punishment should reform the character of a criminal.

Moral change, transformation in criminal conscience - punishment should make criminal realize that his behavior is unacceptable.

4.        BRINGING BACK TO JUSTICE - Most important for Pufendorf because it  reflects the principle of justice. Any crime cause moral turmoil/scandal. If criminal  benefits by committing a crime . (financially, psychologically) , punishment is supposed to take away those benefits. It should also compensate victim as far as it's possible and RESTORE MORAL ORDER IN SOCIETY.

Pufendorf  didn't consider punishment as a mild or severe but, is should be fair according to his iddeas.

 

THOMAS HOBBES   

English philosopher, theorist, Oxford lecturer

 

1.        NATURAL LAW - a general rule which can be rationally discovered and that forbids a human being from committing actions, which are harmful to his life.

->  Natural law prohibits self-distractive behavior.

-> The most important principle of natural law is self-preservation instinct.

Hobbes claimed that his definition of natural law means, that natural law includes fundamental rule that:

 

“ do not do unto others, what we do not wish to be done unto you”.

 

This is not a separate rule, it can be inferred from the definition of natural law, it is a result of it.

This rule is universal and unmutable

Hobbes go further and enumerates a set of specific rules that can be inferred from this moral rule.

 

RULES OF NATURAL LAW by Hobbes

1.        Respect for other people property

2.        Pacta sunt servanda

3.        Respect for other people

4.        Renunciation of hatred ( achievement of peace)

5.        Objectivity in settling any disputes.

These all are the actions are required by our self-preservation instinct. Violation of these rules is self-destructive.

If we violate natural law there is either a certainty or at least high probability that we will get a pay-back. Obedience of natural law is in our egoistic interest, it's beneficial to us.

 

 

2.        Hobbes vision of HUMAN NATURE AND NATURAL STATE:

 

HUMAN NATURE

 

Anthropology  (part of philosophy which deals with question of human nature)

PESIMISTIC ANTROPOLOGY - in his opinion human nature is absolutely EVIL.

We are:

-completely morally corrupted, degenerates. Human = evil : jealous, greedy, conceited, egoistical, bellicose

-greedy egoists, conceited and vain : cruel towards those who are weaker, and coward towards stronger.

-ruled by destructive passions, emotions, no reasons.- idea that human beings are evil by nature

-> ”homo homini lupus”

 

Human beings are essentially weak, easy to kill or hurt.

 

EQUALITY by Hobbes - he points one more things - human beings are essentially equal. In his opinion we are equal because everybody can kill everybody.

 

One good thing about human nature: we are reasonable, rational-thinking.

 

THE STATE OF NATURE:

o Bellum omnium contra omnes - war of everyone against everyone:

~ constant struggle

~armistice - short break between battles, during the war, no permanent peace.

o Our life in the state of nature is short, solitary, sad and animal-alike.

o Natural law in this state is not observed by anybody ever, everybody violates natural law constantly, what implicates that we violate our interest all the time.

 

 

FIRST PARADOX - All  rules of natural law  are actions which are required by our self-preservation instinct. Hobbes says if we violate the natural law there is a very high probability that they will do violate in relation with us. Respecting natural law is in our business. If violation of natural law implicates violation of our interest why do we do so?

EXPLANATIONS FOR VIOLATION OF NATURAL LAW:

1.     Our rational calculations sometimes point us to one direction while destructive emotions lead us to opposite direction

-> weak explanation because it cannot explain the situation when everyone always acts in irrational manner.

2.     People act against their interest because it is in their interest

 

SECOND PARADOX - In state of nature natural law does not exist and is not obeyed by anyone

 

->natural law can only make sense if it is universally accepted and recognized

 

->if  one person respect it, this person will be taken advantage by those who do not respect natural law

 

Rational human beings have no other choice than neglecting rules of natural law in state of nature:

Kill them before they will kill you, look for opportunities to harm somebody before he harms you

->war of all against all

 

THIRD PARADOX fundament for a “game theory” - prisoners dilemma -

under certain circumstances irrational actions are rational.

rational calculations lead to suboptimal results.

 

 

*Case of cooperation and no-cooperation suspect with policeman

	Więzień B milczy	Więzień B zeznaje
Więzień A milczy	Obaj skazani na 6 miesięcy	Więzień A: 10 lat Więzień B: wolny
Więzień A zeznaje	Więzień A: wolny Więzień B: 10 lat	Obaj skazani na 5 lat

 

*Case of obeying natural law and not obeying it. (x=benefit)

Is it better not to obey the natural law, because it can be better for us to behave irrational  (against natural law). If someone obey it  means he/she is naïve and we should use it.

This is why people do not respect natural law in state of nature

 

*No matter what opponents are going to do, there is always better to defect. Since in any situation playing defect is more beneficial than cooperating, all rational players will play defect.

 

The solution for getting out from prisoner's dilemma is setting a government.  We cannot count on our  will or good intentions. We need government as a guardian, protector, who will an institution to make sure that we obey natural law.

 

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