PUFENDORF AND ISTH-CENTURY SCOTTISH PHILOSOPHY 125 opposite to having a right in the sense of an active moral quality. In that case it is the right-holder himself who imposes the obligation on the other party III At first sight, Hutcheson’s writings on natural jurisprudence (i.e. the Latin and English compends and System) look very similar to Pufendorf’s De officio . . . This similarity can, however, lead astray. We shall find that Hutcheson actually omits the distinctive elements of modern natural law theory, that is, the concepts of the suum, one’s sovereign realm, the concept of a right as an active moral power, etc. An investigation of the extent to which he was preceded in this by Carmichael would be of great interest but cannot be undertaken here. It would seem, however, that the concept of an “active” right is discarded in Carmichael’s comment to 1, 2, 5. Hutcheson analyses rights in terms of right action. Right action is in turn given a utilitarian analysis: it is action tending to the promotion of the general good. That the concept of active moral qualities is dropped, is obvious fromthe following: Jus igitur est facultas homini lege concessa,-- ad aliquid agendum, habendum, aut ab alio consequendum which is rendered in English by these words: Thus we have the notion of rights as moral qualities or faculties granted by the law of nature to certain persons.-® Thus in the compend. But the same approach is also found in earlier writings: Whenever it appears to us, that a faculty of doing, demanding, or possessing any thing, universally allow’d in certain circumstances, would in the whole tend to The principle of division between active and passive moral qualities requires further analysis. There seem to be two principles. The one mentioned explicitly is in terms of ability to act versus capability to be acted upon. The other, which seems implied, is in terms of location of the source of authority. -- Cf. Carmichael’s note to 1, 2, 14: “. . . jus, sive Habilitatem lege concessam, aliquid agendi, habendi aut ab altero consequendi; . . .” Also Titius, observation 53 to 1, 2, 3: “Legis permittentis effectus est Jus, i.e. facultas moralis licite et secure aliquid habendi (hoc pertinet ad res) agendi (ad actiones proprias) vel ab aliis postulandl (ad actiones allorum).” Similarly, in observation 51 to 1, 2, 2 a permissive law is distinguished from an obliging law: it is a decree whereby the magistrate gives subjects a jus etc. But thus already in Thomasius 1, 1, 82: “Jus pro attributo personae sumtum est qualitas moralis activa ex concessione superioris personae competens ad aliquid ab altero homine cum quo in societate vivit, juste habendum vel agendum.” -’® Hutcheson (1745, 1747) 2, 2, 1.
RkJQdWJsaXNoZXIy MjYyNDk=