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Jean Barbeyrac on the need to disobey unjust laws (1715)

The French jurist Jean Barbeyrac (1674-1744) argues that it “absolutely necessary” for a good man to disobey just civil laws when they conflict with the natural laws which are “written in our heart”:

For in the end, the instant that the most genuine laws of the most legitimate sovereign conflict in any way whatsoever with these immutable laws written in our heart, there is no question of seeking a balance, because it is absolutely necessary, cost what it may, to disobey the former in order not to do damage to the latter. Men’s submission to civil government does not extend, and never could extend even when they wished it, to the point where a human legislator is set higher than God, the author of nature, the creator and supreme legislator of men.

That, I think, is more than enough of what is needed to indicate the extent to which civil laws are liable directly to contradict the clearest laws of nature. And to indicate, in consequence, how very insecure it is to consider civil laws as infallible interpreters of the laws of nature, or as embodying all that is required to provide a model of conduct. In truth, one must not lightly tax with injustice the laws established in the country where one lives; indeed, it is the case that, where doubt arises, the presumption must be in their favor. But meanwhile one must be alert, one must always be open as far as is possible to the ideas of justice and equity, ideas of which we each carry the seeds within us. For in the end, the instant that the most genuine laws of the most legitimate sovereign conflict in any way whatsoever with these immutable laws written in our heart, there is no question of seeking a balance, because it is absolutely necessary, cost what it may, to disobey the former in order not to do damage to the latter. Men’s submission to civil government does not extend, and never could extend even when they wished it, to the point where a human legislator is set higher than God, the author of nature, the creator and supreme legislator of men. As for things indifferent, it is entirely reasonable if, beyond the mountain or the river, something is considered just, while as a result of the contrary wills of the legislators of two different states, on this side it is considered unjust. But when it is a question of that which is clearly commanded or forbidden by the universal law of humankind, all the laws in the world can no more render just what is unjust than they can render healthy what is toxic for our bodies. Thus in relation to such things, the conduct of the good man is everywhere the same. He never believes himself bound to obey manifestly unjust laws, and even less does he believe himself authorized to exploit the most explicit permission in the world when it conflicts with moral good.

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The French jurist and translator of Grotius and Pufendorf, Jean Barbeyrac (1674-1744), also expressed his own interpretations of natural law in very lengthy footnotes and appendices to his translations, thus meriting being taken seriously as a legal theorist in his own right. The two addresses he gave in 1715 and 1716 to the law students as the Rector of the Lausanne Academy in Switzerland are a case in point. They deal with the tricky of problem of unjust laws and what good men should do about them. The problem arose because in many instances the civil law violates “the clearest laws of nature” (either by omission or commission). As examples of “thoroughly inhumane and utterly unjust” laws he gives the activities of the Inquisition in torturing and killing heretics (he was a Protestant himself). As far as he was concerned, it was not a matter of “balance” or making a compromise, since civil laws which violated natural law had to abolished “cost what it may.” He concluded that “the good man” was never “bound to obey manifestly unjust laws.” In his second address he even toys with the idea that one day a “golden age” will come when “we should close the law courts and demolish the tribunals of justice” and have “no more of those whose only occupation is to exploit the freedom people still believe is theirs.” It is hard to imagine a commencement address like this being given a law school today, in French or in English.

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