Samuel von Pufendorf
1. Although a deeply implanted self-love constrains a man to exercise anxious care of self, and to take thought in every way for his own interests, so that it would seem superfluous to invent any obligation in this respect, still in another way man is obliged in any case to observe certain things concerning himself. For man was not born for himself alone, but equipped with such remarkable endowments by the Creator, that he may glorify Him, and become a fit member of human society. Consequently he is bound so to order himself that he do not suffer the Creator's gifts to perish from neglect, and that he contribute his due share to human society. Thus, although lack of education is a reproach and a loss chiefly to one's self, the master does well to chastise his pupil, if he neglects to learn arts of which he was capable.
2. Again, man consists of two parts, soul and body, of which the one performs the function of a ruler, the other that of a servant or instrument, so that we use the authority of the mind, the servitude of the body. Hence both must indeed be cared for, but especially the former. And the mind must first of all be molded fitly to endure the social life, and imbued with a sense and a love of duty and honor. Then, in accordance with the capacity and station of the individual, something more must be learned, that a man may not be a useless cumberer of the ground, of no profit to himself, an annoyance to others. Moreover, one must in due time choose an honorable calling in life, according to the prompting of one's bent, or as determined by bodily and mental ability, birth, fortune, parental authority, command of the civil authorities, opportunity, or necessity.
3. Furthermore, since the mind is upheld by the body, the powers of the latter must therefore be strengthened and conserved by suitable food and labors, and not injured by intemperance in eating and drinking, untimely and unnecessary labor, or any other means. Hence one must avoid gluttony, drunkenness, excess in love, and the like. And since disordered and violent passions are not only an incentive to disturb society, but also greatly injure the man himself, one must consequently take pains to restrain one's passions so far as possible. And because many dangers can be repelled, when one faces them courageously, faintness of heart must be banished, and the mind steeled against the fear of danger.
4. Besides, no man has given himself life, which must rather be accounted a gift of God. Hence it is evident that man by no means has power over his own life, to such an extent that he may at his own discretion cut it off; that, on the contrary, one must wait in any case, until one is called away by Him who stationed us at this post. However, since a man can by his efforts serve others, and is bound to do so, and since a certain kind of work, or a more intense labor, wastes his strength so much as to bring old age and the end of life upon him more promptly than if he had lived a life of ease, it seems in every way justifiable for him to choose what will probably cause a shorter life, in order that he may lavish the benefit of his talent upon others. And again, as frequently the life of many cannot be saved, unless in their behalf others expose themselves to the probable risk of death, the legitimate ruler could enjoin upon a citizen under threat of gravest punishment, not to avoid such a danger by flight. Even on one's own authority it will be permissible to run such risk, if only weightier reasons do not hold us back, and there is hope that it will bring safety to others, and these are worthy to be ransomed at such a price. For it would be foolish vainly to join company with another who is to perish, or, being an extraordinary man, to meet death for a worthless one. For the rest, however, natural law does not appear at all to enjoin that any man prefer the life of any other to his own; but other things being equal, each man is permitted to be his own nearest neighbor. But those who in weariness of the annoyances which commonly attend human life, or in protest against misdeeds which would not have made human society ashamed of them, or in fear of pains which might have been bravely endured, a helpful example for others; or those who with an empty display of loyalty or courage throw away their own lives, — all these are certainly to be thought sinners against the natural law.
5. But frequently self-preservation, which a most sensitive instinct and reason commend to man, seems to conflict with the precept of sociability; namely, when our safety is so endangered by another that either we must suffer death or some serious disadvantage, or else the other must be repelled to his hurt. Therefore we must now explain how far self-defense is to be tempered with restraint. Now self-defense takes place either without injury to him who threatens evil to us (i.e., while we let him see that an attack upon us is a dubious or a fearsome thing), or with injury to him, or even death. The former method is undoubtedly permissible and free from any guilt.
6. As for the second method, however, scruple can arise, since the human race seems to suffer an equal loss, whether my assailant is killed, or I myself perish; and because I must in any event destroy an image of myself, with whom I am bound to maintain the social life; and, once more, because a violent defense seems to cause a greater disturbance than if I either take to flight, or yield my body submissively to my assailant. But all these arguments do not make this kind of defense at all illegal. For in order that my conduct toward a man be peaceful and friendly, it is required that, in his attitude toward me, he show himself a fit person to receive attentions from me. And since the law of sociability looks to the safety of men, it must be so interpreted as not to destroy the safety of individuals. Hence when another threatens me with death, there is no law which commands me to betray my own safety, that another's malice may attack me with impunity. And whoever in such a case is hurt or killed, has reason to blame his own perversity, which put upon me that necessity. Otherwise, in fact, all the good things which nature or industry has gained for us would have been given to us for nothing, if it were not permitted to offer violence to another who unjustly descends upon them. And the good would be exposed as a ready prey to the bad, if they must never offer them violence. Hence to proscribe utterly forcible self-defense, would be the destruction of the human race.
7. Yet, when injury is threatened, one may not always fly to extreme measures; but the safer must first be tried, for instance, allowing my assailant no access to me, shutting myself up behind walls, warning him to desist from his madness. So too it is the part of prudence, to practice patience in a slight injury, if it can conveniently be done, and to waive some of one's rights, rather than expose one's self to a greater danger by untimely resistance to force, especially when the thing attacked is one which can easily be repaired or made good. But when my safety cannot be secured by this or any such method, it will be permissible to try even extreme measures to that end.
8. But to decide clearly whether a man has kept within the bounds of blameless defense, we have first to consider whether he lives in natural freedom, not subject to any mortal, or on the other hand is responsible to civil authority. In the former condition, when another insists upon inflicting an injury, and is unwilling to be moved to repentance for his base attempt, and to be at peace with me as before, then I shall be able to repel him even with bloodshed; and this not only if he attack my life, but also if he attempt to wound or merely to hurt me, or even to steal, without injury of person. For I have no security that he will not pass from these to greater injuries; and he who shows himself a public enemy is protected by no further rights from being repelled by me in any way whatever. And life would indeed be unsocial, if it were not permitted to employ extreme measures against him who does not cease to pile up moderate injuries. For on that basis the most inoffensive would be the perpetual mockery of the worst. Furthermore, in this condition of natural liberty, I cannot only repel a danger threatened for the present, but also, that averted, I can pursue the assailant until I have secured myself against him for the future. With regard to this security, we must hold that, if a man after inflicting an injury is moved to spontaneous repentance, asks pardon, and offers compensation for the loss, I am bound to accept his word and be reconciled to him. For to repent of one's own motion and ask pardon, is a strong indication of a change of character. But if a man shows penitence only when his powers of resistance fail, it seems unsafe to trust his bare promise. Therefore from such a man the power to injure must be taken away, or some other bond must be imposed upon him, that henceforth he may not be formidable to us.
9. On the other hand, those who are subjected to civil authority employ a forcible self-defense lawfully only when time and place do not permit of imploring the aid of a magistrate in repelling an injury by which life, or a blessing as valuable as life, or irreparable, is brought into immediate danger. That the danger may be averted, I say, and that only, whereas vengeance and security against future offense shall be left to the discretion of the magistrate.
10. Moreover I may undertake my defense as well against him who threatens my life with malice aforethought, as against him who does so by mistake; for example, if a man assaults me while insane or because he thought me another, with whom he has a quarrel. For it is enough that the other have no right to attack or kill me, and there be on my side no obligation to die in vain.
11. As for the time within which defense is right and proper, this view is to be held: where both parties live in natural liberty, even though they could presume, and ought to presume, that others would observe toward them the duties of natural law, still, on account of the wickedness of human nature, they are bound never to be so free from concern as not to surround themselves with timely and legitimate defenses; for example, by blocking the approach of those who have hostile designs, by getting together arms and men, by winning allies, by closely watching the attempts of the others, and by like measures. But that suspicion, arising from the common wickedness of men, does not suffice to enable me, under pretext of self-defense, actually to surprise my enemy by an armed attack, not even if I see his power growing unduly, especially where he has increased it by harmless industry, or by the favor of fortune, without oppressing others. More than that if a man show, besides the ability also the wish to harm, and this not indeed against me, but against a third party, I cannot for that reason at once venture to attack him on my own account, unless I am bound by an agreement to aid the other, who is being unjustly attacked by a more powerful man. It is expedient to do this all the more promptly, if it be probable that, after overpowering the other, he will turn to me also, and will use his former victory as a means to the next. But where it is quite clear that the other is already planning an attack upon me, even though he has not yet fully revealed his intentions, it will be permitted at once to begin forcible self-defense, and to anticipate him who is preparing mischief, provided there be no hope that, when admonished in a friendly spirit, he may put off his hostile temper; or if such admonition be likely to injure our cause Hence he is to be regarded as the aggressor, who first conceived the wish to injure, and prepared himself to carry it out. But the excuse of self-defense will be his, who by quickness shall overpower his slower assailant. And for defense it is not required that one receive the first blow, or merely avoid and parry those aimed at him.
12. But in states no such ample room is allowed for self-defense. For here, though one knows that a citizen is preparing to attack him, or else scattering fierce threats, it will by no means be permitted to anticipate him, but he must be reported to their common ruler, and security sought from the same. But when a man is already being attacked by another, and reduced to such straits that there is no opportunity to call for the aid of a magistrate or other citizens, then only will it be permitted to repel violence by employing extreme measures against the assailant; not indeed with the intention of exacting vengeance for the wrong by bloodshed, but because without such bloodshed life cannot be rescued from immediate danger. Moreover, the beginning of the time within which one can kill another in self-defense with impunity, is reckoned from the moment when the aggressor, manifesting his wish to make an attack upon my life, and furnished with the bodily powers and the instruments necessary to injure, is now on the spot from which he can actually injure me, reckoning also that space which is needed, if I prefer to anticipate, rather than to be anticipated. And yet, on account of the mental excitement which such danger occasions, exceeding the limits slightly is disregarded in the human court. Further, the time of blameless self-defense lasts until the aggressor has been repelled, or has of himself retired (whether because he was touched by penitence in the very moment of his crime, or because his attempt met with no success), so that for the present he can no longer injure, and we have the opportunity to withdraw to a place of safety. For vengeance for an assault, and security for the future, concern the responsibility and power of the civil authority.
13. But although it has been said that it is not right to rush into bloodshed when the danger can be repelled in a more convenient way, still on account of the excitement which imminent danger commonly produces, it is not usual to be over-particular. For one in the flutter of such danger may not be so careful in surveying all the ways of escape, as the man who is considering the subject with a mind unperturbed. And then, just as it is rash to venture down from a safe place, to meet the challenger, so, if he attacks me in an exposed situation, I am not expressly obliged to flee, except perhaps when there is near by a refuge, to which I may betake myself without danger. And I am not always obliged to retreat backwards. For then one must expose his back, and the danger of a fall is both before and behind; and once you have been forced from your position, it is difficult to recover it again. Moreover, one is not excluded from the privilege of self-defense by the fact that he has gone abroad to attend to his business, whereas he would have been safe from all danger, if he had remained at home. Yet the same privilege is not enjoyed by him who has been challenged by another to a duel, and, upon presenting himself, is so hard put to it that, unless he run the other through, he must himself perish. For since the laws forbid one to run into that danger, no account is made of it to excuse bloodshed.
14. The same concession is made for the defense of members of the body, as for that of life. Consequently he too is held innocent who has killed an assailant using force with the intention perhaps of mutilating merely a member, or inflicting a serious wound. For we naturally shrink very much from mutilation and a serious wound; and mutilation of a member, especially one of the nobler, is at times appraised as nearly equal to loss of life itself. In fact one cannot tell in advance, but death may be the result of mutilation or wound; and such long-suffering goes beyond the common self-possession of men, — a patience to which the laws do not regularly bind us, especially in favor of a wicked man.
15. Further, what is conceded in defense of life, is also accounted permissible in behalf of chastity. For no greater insult can be offered a respectable woman, than to attempt to take away against her will that virtue whose preservation brings the highest esteem to her sex, and reduce her to the necessity of rearing her offspring for a public enemy.
16. Again, the defense of property, at least among those who live in natural liberty, can go so far as the death of the assailant, provided the possessions are not such as to be contemptible. For certainly without possessions our life cannot he preserved, and he who attacks our possessions shows as hostile a spirit as he who assaults our life. But in states, where stolen goods can be recovered by the help of a magistrate, this is not regularly permitted, except in case the man who has come to steal our goods cannot be brought to court. For this reason it is lawful to slay pirates and burglars.
17. So much for self-defense in the case of those who are assaulted by others without provocation. But the aggressor can rightly defend himself, and in so doing injure the other a second time, if, after he has been moved to repentance and has offered reparation and security against injury for the future, the injured man in a harsh spirit rejects his offer and endeavors to avenge himself with his own hand.
18. Finally self-preservation is so highly regarded, that, if it cannot be obtained otherwise, in very many cases it is thought to exempt from the obligation of the general laws. On this account necessity is said to know no law. Naturally, since a man is impelled with such ardor to self-preservation, it is difficult to assume that so strong an obligation has been imposed upon him, that his own safety must give way before it. For, though not only God, but also, if the seriousness of the matter requires, the civil authority may be able to impose upon us so rigid an obligation that death should be suffered rather than yield a hair's breadth therefrom, we do not always assume that the obligation of the laws is so rigid. For those who have promulgated these, or have introduced certain institutions among men, wishing of course thereby to promote the safety or advantage of men, are believed to have had regularly before their eyes the condition also of human nature, and how impossible it is for man not to avoid and avert whatever tends to his destruction. Hence regularly the laws, especially the positive sort, and all human institutions, are considered to except the case of necessity, in other words, not to oblige, when observance of them would be attended by an evil destructive of human nature, or exceeding the common endurance of men; unless even the case of necessity was included, either expressly, or on account of the nature of the affair. Therefore necessity does not indeed have the effect of making it possible for the law to be directly violated and sin committed; but from the benevolence of lawgivers, and also from a regard for human nature, it is presumed that the case of necessity is not included under a law conceived in general terms. The matter must be made dear by one or two examples.
19. Although otherwise a man has no right over his own members, to mutilate or destroy them at discretion, he will however be permitted to cut off a member attacked by an incurable disease, that the whole body may not perish, or that parts still sound may not be involved, or that the use of other members may not be hampered by a useless appendage.
20. If in case of shipwreck more persons have leaped into a boat than it can carry, and the boat does not belong to one man by a particular right, it seems that they must draw lots to see who shall be thrown overboard. And if anyone shall refuse the hazard of the lot, he can be thrown into the water, without casting his lot, as one who seeks the destruction of all.
21. If two fall into imminent danger of death, in which both must perish, it is permitted one of them, in order to save himself, to do anything which may hasten the death of the other, who would perish in any case. For example, if I, a skilled swimmer, had fallen into deep water with another who was not, and he threw his arms about me and held me, and I had not the strength to carry him out of the water with me, I could get rid of him by force, in order not to be drowned with him, even though I could hold him up somehow for a short time. So in a shipwreck, when I have seized a plank that will not hold two, if a man swimming up tries to throw himself on the same plank, and is likely to destroy us both, I shall be able to push him off by any force. So when an enemy threatens instant death to two fugitives, one can leave the other in danger for his life, by closing a gate behind himself, or by throwing down a bridge, if both cannot be saved together.
22. Necessity also gives us the right to expose another indirectly to the danger of death or serious injury, it being no purpose of ours to harm him, but only in the interest of self-preservation to undertake an act from which harm probably can come to him; provided we prefer, however, to meet the necessity of our case in any other way, and mitigate the injury itself so far as in us lies. Thus, if a stronger pursues me, with designs upon my life, and somebody happens to meet me in a narrow street, my necessary way of escape, if, though admonished, he does not give way, or the limitations of time or space do not admit of his doing so, I shall have a right to knock him down, and continue my flight over his fallen body, even though it may seem probable that he will be seriously hurt by the blow. All this, unless I am bound to the man by special obligation, so that I ought actually to take the risk for his sake. But if he who stands in the way of flight, is unable, though admonished, to get out of the road, for example an infant or a lame man, it will be at least excusable, if one tries to leap over him, rather than expose one's own body to the enemy by delaying. On the contrary, if a man insolently and inhumanly blocks me, and refuses to make way for me in my flight, he can even be directly pushed and thrown down.
For the rest, those who suffer injury in such cases ought to bear the misfortune as their destiny.
23. If a man, without fault of his own, is in extreme want of food and clothing necessary against the cold, and has been unable, by prayers, or purchase, or offer of service, to prevail upon others, who are richer and in abundance, to let him have those things willingly, he may without the charge of theft or robbery take them away by force or secretly; especially if he shall have the intention of paying their estimated value, when occasion shall offer. For the rich man ought, out of humanity, to succor one placed in such straits. And although in general what is owed on the score of humanity cannot be taken away forcibly, still extreme necessity has this effect, that such things can be claimed no less than those due on the basis of a perfect obligation. It is, however, required that the poor man first try every means to meet his necessities with the consent of the owner; also that the owner be not in the same straits, or likely soon to be reduced to them. Further, there must be restitution, especially when the fortunes of the other do not permit him to make any such free gift.
24. Finally the necessity which presides over our fortunes seems to bestow upon us the permission to destroy the property of others; but with these restrictions: that the danger to our property must have come about without our fault; that it cannot be removed in a more convenient way; that we do not destroy a more valuable thing belonging to another, to save ours, being less precious; that we make good the value, if indeed the thing would not otherwise have perished; or else we should share in the loss, if the other's property would otherwise have perished along with ours, but now by its sacrifice preserves ours. This principle of equity is usually followed by admiralty law. So too, when a fire has broken out and is threatening my house, it will be permissible to tear down my neighbor's house. provided those whose houses have been thus saved make good their neighbor's loss pro rata.
Contents | Next Chapter | Political Economy Archive