Jean Jacques Burlamaqui and the Theory of Social Contract

AutorRaúl Pérez Johnston
CargoProfesor titular de la cátedra de Derechos Humanos de la Universidad Anáhuac
Páginas331-374

Raul Perez Johnston

    Profesor titular de la cátedra de Derechos Humanos de la Universidad Anáhuac, Profesor adjunto de la cátedra de Derecho Constitucional Mexicano de la Universidad Anáhuac, Profesor invitado de Derecho Constitucional y de Historia del Derecho Constitucional en la Universidad de la Sabana y en la Universidad Anáhuac.

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I Introduction
  1. Jean Jacques Burlamaqui (1696-1748), a Swiss legal scholar, is one of the most interesting enigmas of political science and the law: while some others recollected undeserved fame, he, deserving at least some, has fallen into oblivion. This, despite having developed an original and revolutionary line of thoughts that comprised not only most of the great institutions of XVIII and XIX century constitutionalism, but also, more contemporary ideas like that of social rights, to give but an example. Scholarship doesn't seem to give much credit to this author, and has concentrated in studying other "more traditional" authors of the time like Hobbes, Locke, Montesquieu or Rousseau, who none of them seem to have had a system of political ideas as complete as Burlamaqui did.

  2. And yet, paradoxically, Burlamaqui is a member of that group of natural law thinkers that fascinated constitution makers, not only in continental Europe, but most importantly, in the United States, influencing directly some of the mostPage 332 prominent framers of the American Constitution.1 This being so, the understanding of Burlamaqui's ideas, particularly on the social contract, becomes fundamental, since it not only does provide us with a taste of the original understanding of the early texts and debates surrounding the American Constitution, but also, perhaps, how they ought to be interpreted then, and now, if we can show that Burlamaqui's ideas are still at the hart of the debate around contemporary constitutions.2

  3. This having been said, it is important to realize that Burlamaqui came from a patrician background of protestants that had taken the refuge in Geneva after escaping religious persecutions in Italy and France; his grandfather was a protestant pastor in Grenoble and Geneva, as well as a writer, and his father, who undertook partially the education of his son, was a professor of law, Counselor and Secretary of State in his natal Geneva. Also, the young Jean Jacques studied law in one of the major law schools of his time: the University of Geneva. Founded in 1559 by Jean Calvin, this university became the shelter of every brilliant mind in the continent who suffered from political or religious persecution in catholic countries. This would definitely shape the mind of young Burlamaqui into forming a very particular line of thought, deeply influenced by the political ideas of the Reformation.

  4. Let us remember also that Burlamaqui was a very studious person, a habit which led him to read and comment on all the major authors in political theory of his time. Among the ones he mastered with particularity and special interest were Grotius and Pufendorf, which came to his knowledge thanks to the friendship he developed with his contemporary, Jean Barbeyrac, a FrenchPage 333 Huguenot living in Holland, highly known in the XVII century for his translations and commentaries on the works of these two authors.3

  5. Furthermore, as a follow up to being a brilliant student, at the age of twenty five, Burlamaqui followed his father's footsteps and became professor of law at his alma matter, holding the chairs of Civil and Natural Law; positions he held until his health obliged him to withdraw from them. As a consequence of that, and as a reward to his academic merits and achievements, he was appointed to the position of Counselor of State, presumably to do something related to the patronage of the arts to which he was very fond of, until he died in 1748.4 A sign of undoubted recognition to someone thought to be a highly influential person in the community.

  6. Through his classroom, people like Prince Friedrich of Hesse-Cassel and Emmerich de Vattel are believed to have passed, the similarity of their thought, in a certain way acknowledges this circumstance; in addition to these celebrities, Burlamaqui was thought to be a very popular and highly esteemed teacher.5 This led to the inevitable spread of his class notes and outlines, and out of fear of them being misused or even inappropriately construed, especially after his death, he decided to put them into writing. Burlamaqui, thus, left three works, The Principles of Natural Law, published in 1747, The Principles of Politic Law, and the Elements of Natural Law, published posthumously, the first in 1751 and the second in 1774, all assembled by him from his own notes for lectures delivered at the University of Geneva between 1723 and 1740.6 HisPage 334 works propound a theory of law founded on the nature of mankind and regulated by mutual obligations of society. His rational utilitarianism stressed the law of nature as furnishing the doctrine of the common good. In this sense "Burlamaqui ... represents a position on self-love, duty, rights, happiness, freedom, virtue, religion, civil society, civil authority and civil obligation typical of the orthodox, Protestant school of Enlightenment natural law doctrine".7

  7. Influence from Grotius, Pufendorf and Barbeyrac are evident in his writings; notwithstanding this fact, his work is not a mere reproduction of the ideas of these authors: it mixes them, simplifies them,8 and aware of the problems of his time, with a lucid and didactical style, he made important contributions of his own to the fields of political theory, natural law and international law. But the early and inevitable success of his works may not have been due only to the clarity of his style, against the heavy and difficult styles of Grotius and Pufendorf,9 but to the fact that he was a true academic that sought noPage 335 partisanship nor favor from any political group through his writings, like many others did in the past, and have done ever since.10

  8. On this matter, we can say that his major work, the Principles of Natural and Politic Law accounts for a well balanced system that describes the different stages of men and their relations11 through different social contracts, all different in nature, content and parties from the others. Within those stages, one can see the existence of a state of nature, of a state of society, i.e. a nation, and finally, of a set of relations between political communities through the law of nations. Each set with its own and particular rules.

  9. Despite the existence of three different stages, for the purposes of this work, we will concentrate only in the first two of these stages: the state of nature and the formation of a political community with the consequences of such association, leaving the international component out of the equation.12 For that purpose, we will analyze in first instance how men are bound by natural law in the state of nature, how the nature and constitution of men leads them towards abandoning this primitive stage to form a society and a government. The abandonment of this "savage" state, to reuse a term minted by Rousseau, is made in Burlamaqui through compacts of different natures. This will lead us to explain his theory of multiple compacts and the different stages they represent. That being done, we will then concentrate on the consequences of this compact structure and how it affects the form and the way in which government ought to be exercised, forwarding principles like popular sovereignty, limited representative government, separation of powers, constitutional supremacy, and even, the review of unconstitutional acts, to finally put Burlamaqui's contribution into perspective and determine the usefulness of its study in contemporary circumstances.

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II The state of nature. Primitive society bound by natural law
  1. The first stage of which Burlamaqui speaks of, is the state of nature. But unlike many of his predecessors and contemporaries, the state of nature is not a state of licentiousness or of perpetual war of every human being against each other in the pursuance of his own and basest interests: it is a state of natural society.

  2. Men are born to be sociable, it is their natural state. By natural impulse, man looks for the company of his fellows, and that leads him to interact with members of his own species.13 To put it in Aristotelian terms, man would be a Zoon Politikon.14 Instead of having fear as a motivation to associate with each other, Burlamaqui sees it as a state of fact and necessity driven by the motivation of assistance for the survival of each member of the human race; sociability is seen as something translating in a common advantage that will procure men with the tools for...

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