Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius

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      §38. In the same chapter 1, §29, I say that “Law is always binding, pacts are not.” Of course the consent of two or more parties produces an obligation (Scripture tells us so repeatedly and confirms that we are bound by promises). I discuss this in detail in chapter 6, book 2, on preserving faith; but I want the obligation that follows from the pact not to be the product of the consent itself, but of the will of the legislator who commands the keeping of promises. Thus I immediately subjoin that “a law is binding if there is a pact.” But I have done this in order to contradict more firmly some people who ultimately derive the power of obligation from a pact. Among these the foremost, if I am not mistaken, is Hobbes.⁴³ At the same time I contradict Grotius, who asserts that the laws of nature would be binding even if we assumed that there were no God, etc.⁴⁴ Yet, even if you preferred to replace the phrase that “law is sometimes binding because of a pact” with the statement that “a pact is binding because of a law” I will not contradict you, because I believe that these two phrases are compatible,

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      since either suggests that a law can be binding in the absence of a pact but not without a legislator.

      §39. In §31 of the same chapter I say that the eternal law is a scholastic fiction. By that I do not mean the thing denoted by that term, whether they mean divine justice or the entire order of nature established according to God’s will and decree. For who but the most blatant atheist would claim that these are the product of nothing? I declare, however, that the use of the term law by the Scholastics in explaining their concept is most improper and a fiction: Thus it follows that God does not act according to a law. You may think this is a harsh way of putting it, since what is poorly expressed is entirely different from a fiction, and fictions are not what is expressed in inappropriate words, but what does not exist outside the mind of the author of the fiction or of those who accept it. I would reply that a distinction needs to be made between different kinds of unsuitable expressions. For some of these expressions are such that they are held to be improper even by those who use them; others are such that those who use them claim that the predicate, which is applicable to the subject only in a very improper fashion, can be applied to it properly. I admit that it is not accurate to call the former inappropriate expressions fictions; but as far as the latter are concerned, these are real fictions, because the improper predication, while it is claimed to be proper, does not exist as such outside the conception of the author of the fiction, but he invents it entirely by saying that it is proper. Thus, if someone presented a portrait of somebody as the person himself, or wanted Herod to be a fox in the proper sense of the word, or the meadows to be smiling in the literal sense of the word, he would without doubt be inventing this. But it is evident that most of the Scholastics defended the idea that eternal law is a law in the proper sense of the word. On this basis they initiated wide-ranging controversies concerning the definition of this law, all in order that this general definition of law could be adapted better to God. Mr. Osiander discusses these at greater length in his Typum legis naturae.

      §40. The doctrine that beasts are without sense perception clearly does not belong to theology. And if the interest of religion is mixed up with this controversy, the argument for the lack of sense perception of animals even

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      triumphs over the contrary opinion. The words of the true and genuine critic Pierre Bayle on this matter are elegant; compare the Excerpts from the Republic of Letters, March 1684, pages 26ff.:

      Religion comes to be involved in this cause because the anti-Cartesians hope thereby to undermine the machines of Descartes; but they are not able to see the benefit which the philosophers’ followers have derived from this. For they believe they have shown that in attributing a soul capable of cognition to animals, all proofs of the natural immortality of the soul are overthrown. They have shown that their opinion has no more obstinate enemies than the godless and the Epicureans, and that there is no better way of attacking these philosophers than by robbing them of all their false arguments, when they bring up the soul of beasts and claim that there is no difference between the soul of beasts and that of men, except that the former have a little less, and the latter a little more soul. It is certain that there are no more godless people than those who say that beasts come very close to the perfection of humans. This is how the Cartesians have used religion for the purposes of their philosophy. But they are not content with this reason. They have examined divine nature to find arguments against the rationality of beasts, and one can say that they have found many good things there.⁴⁵

      And his entire, highly erudite dissertation, which he proposed on the occasion of the treatise of Darmanson, La beste transformée en machine, pages 19–34,⁴⁶ is worthy of being read by you. To put it briefly, the whole doctrine can be summarized in these few points: (1) The Peripatetics, I believe, concede that the soul of man cannot be conceived as anything other than a faculty for thought. (2) They concede that the internal senses perform acts of cognition. (3) Either it must be conceded that all cognition occurs as a result of thought, or it must be confessed that those who attribute cognition to the senses do not know what they are saying. Thus, (4) the conclusion follows naturally: Animals lack internal senses because they lack reason. Therefore animals must either be granted reason or they

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      must be deprived of both reason and sensation, or perception, or cognition, or whatever word you want to use here. But this doctrine is not so new that it has to be traced from the age of Descartes. Sturm says in the first dissertation of his Eclectic Philosophy, page 54:

      the first was Gomez Pereira, who asserted that animals lacked all cognition or perception,⁴⁷ and Willis in De anima brutorum, chapter 1, page 6, testifies that he [Pereira] was followed in the present century by Descartes and Digby.⁴⁸ Morhof in his dissertation on the paradoxes of the senses⁴⁹ says that Gomez, a Spanish philosopher and physician, devoted a lot of effort to this, and in Methyna in 1554 published a book he had worked on for thirty years, which was named the Antoniana Margarita after his parents.⁵⁰

      Add Bayle in the work cited, pages 20ff., where he shows that this opinion perished soon after Pereira, and so the glory of inventing it should not be denied to Descartes. There has even been an anonymous author who reminded Bayle that already at the time of Augustine there were debates on this matter, and to prove this he quotes the words of Augustine from De quantitate animae, chapter 30: “But it seemed to you that there was no soul in the body of living beasts, although this may seem absurd, and there has been no lack of highly learned people who adopted this opinion, and I believe there is no lack of them now.” See Bayle, Nouvelles de la République des lettres, month of August 1684, page 2,⁵¹ and Rondelius in a particular letter, a fragment of which Bayle published in the month of October of the same year, page 290,⁵² points out to him that more than three hundred

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      years before Augustine, at the time of the Caesars, the Stoics doubted whether beasts had a sensitive soul; another three hundred years before them Diogenes the Cynic did the same, even though the anonymous author soon retracted his opinion because in studying Augustine he had noticed that in the words quoted from Augustine the question did not concern the doctrine of Pereira. The learned Bayle therefore suspected that perhaps passages quoted by Rondelius did not clearly prove his intention; see the month April 1685, page 425, which is a question we perhaps will discuss in greater detail elsewhere.

      §41. The arguments which I put forward on the imputability of moral actions in chapter 1, §66, are almost all taken from the writings of Mr. Pufendorf, Of the Law of Nature and Nations, book 1, chapter 5, and On the Duty of Man and Citizen, book 1, chapter 1. Yet I believe that the Peripatetics pretty much agree with me on these rules and that they are generally taught by them in their books on ethics, especially the principle which I state in СКАЧАТЬ