Stony Brook University

ight of war and punishment to the State. Within the State, the right of war is much
reduced, although not entirely, by being managed under a just leader. 71 Leibniz does not
offer an explanation for why we would give up the right of war, but presumably it is
because the right is better managed by the State. 72 In sum, the rights and obligations of
the State are grounded in the agreements of its citizens; but the source or authorization
for the contract (or convention) itself is the moral quality of persons (rational
substances). 73 These points are emphasized in §18.
Whereby, all obligations resulting from the decisions of the legal body,
including bodily and pecuniary punishments, pertain to the source of the
contracts [my emphasis]. For, any subject of the Republic mutually
promises to respect the State’s authority in such decisions, since it is the
promise of fidelity that binds everyone to the contract. 74
The source of the contract is thus the act of promising to hand over the right of
punishment to the State. However, individuals retain their right to their own body, at least
against unjust punishment. This promise of fidelity becomes “public right” (jus publicum)
or the positive right of the public. The “end” of public right is “enforcement, which is the
realization of the moral qualities, so that one who has the right of coercion or moral
necessity, may also have the natural power.” 75 In other words, the end of public right is to
actualize one’s natural moral power by means of the rights of punishment and restitution
under the contract.
At this point, the main definitional elements of Leibniz’s “science of
jurisprudence” are in place, as he declares in §19: “Thus therefore we have deduced the
highest source of the whole of Right.” 76 As reiterated in §20, “Therefore I judge the
highest source of right to be sufficiently arranged with the most evident principles of pure
right.” 77 This source is the moral qualities of right and obligation, from which are derived
71 A.6.1.303.§17: “Sed in rebuspublicis, imo et aequitate duce ita restricta est haec licentia, ut laesus
aestimatione debeat esse contentus, reservata Reipublicae poena si damnum consulto datum est. Injuria
igitur fons est delictorum et quasi delictorum. Conventio vero promissiones acceptationesque omnes in se
continet, quo pertinet doctrina de Verborum Interpretatione, Conditionibus, etc. Quasi contractus vero ad
Jus reale pertinent. Multa vero quae ex his naturae fontibus non videntur descendere, sed ex Lege, illa
omnia eo ipso ex eorum uno, nempe ex conventione descendunt, quia populus in Legislatorem
compromisit.”
72 Leibniz provides some explanation in §73, below.
73 It is interesting to note that the State’s right to punish as grounded in the individual’s right to punish
closely follows Grotius. As Tierney claims, “Grotius maintained that, since the power of the
commonwealth came from its individual members, and since no one could confer a right he does not
possess, the individuals must have possessed the right to punish before the state was formed” (Tierney
333). Leibniz makes a similar argument in the Meditation.
74 A.6.1.304.§18: “ Quare et omnes obligationes publicorum Judiciorum, sive ad poenam corporalem sive
pecuniariam tendant, pertinent ad pactorum fontem; promisit enim quilibet subditus Reipublicae se decreta
ejus vel universalia, ut leges; vel singularia, ut sententias; rata habiturum. . . . Ex ipso igitur Pacto
promissae fidelitatis tenetur.”
75 A.6.1.304.§18: “Cujus finis est executio, quae est realisatio qualitatum moralium, seu ut qui habet
potestatem vel necessitatem moralem, habeat et naturalem.”
76 A.6.1.304.§19: “Ita igitur universi Juris summa capita deduximus.”
77 A.6.1.306.§20: “Ita igitur arbitror, summa Juris capita ex meri Juris evidentissimis principiis a me satis
digesta esse."
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