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

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СКАЧАТЬ no influence over their presence or absence. But I understand all these rules to refer to the human court [forum], because in the entire Institutes I discuss jurisprudence, which has as its ultimate end the preservation of temporal peace through the execution of laws and the administration of justice, and so I do not contradict the theologians and their doctrine of the imputation of original sin in the divine court. The fact that I composed a treatise on divine jurisprudence is no hindrance, though it might lead a reader to believe, according to the laws of sound method, that these general rules are to be taken in such a wide sense that they apply not only to the human but also to the divine court. But it will be clear to anyone from what I say at the end of chapters 1 and 2 that jurisprudence, even when it is called divine and is concerned with divine laws, is not concerned with the divine court, but leaves this entirely to the theologians. I wanted, however, to add an explanation of my opinion because I wanted to avoid causing scandal to others.

      §42. In chapter 2, §2, I state that certain divine laws have the well-being of humans in this life as their purpose. And by that I mean their immediate

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      purpose, for this is what I say expressly in the same chapter, §§125 and 138. Thus I do not deny that every divine law which has eternal salvation as its purpose also simultaneously has well-being in this life as its purpose. I do deny, however, that this is its immediate purpose.

      §43. In §3 of the same chapter I said that I disapproved of the common division of divine law into moral, ceremonial, and forensic. Yet I deny that I have thereby committed an impiety or a crime against sacred theology. I have put forward my reasons for this disapproval in a public disputation On the Crime of Bigamy, §§8 and 20.⁵³ Many who use this division treat moral and natural law as identical, and argue that the Decalogue everywhere inculcates precepts of natural law, or they defend the view that outside of the Decalogue there are no moral precepts in Scripture. They do this although it is evident that the moral law is broader and comprehends within it positive universal law, and that the Decalogue also inculcates universal positive laws, for example in the ninth and tenth precepts; finally there are moral precepts outside the Decalogue, for example in Leviticus 18.⁵⁴ As far as the first point is concerned, Mr. Osiander agrees with it in his Typum legis naturae, page 117, §15, where he says lucidly that “the moral and the natural law are based on different reasons.” The late Dorscheus said in his first Disputation on Moral Theology, §10:⁵⁵

      divine positive law was superadded to natural law and communicated to humanity. It was put forward by Moses more fully and restricted to the government of the Israelite people, which was more ancient than the laws of all nations and also provided all first legislators with the origins of their laws. This is clear from the testimony of the pagans, on which Eusebius comments in book 1, Praeparatio evangelica, chapter 9;⁵⁶ from the fact that they trace the origin of all laws to Egypt, which, according to Joseph

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      Psalm 105.22, owed its habitation to the ancient pious Israelites;⁵⁷ from the comparison of Roman and Hebrew laws by Justus Calvinus in his Themis Ebraeo-Romana, William Velrot in his Parallels of Jewish and Roman Law, Molinaeus in his Comparison of Roman and Hebrew Laws, and others. Add Diodorus Siculus, book 1 of his Bibl., chapter 5, page 43.⁵⁸

      Then he [Dorscheus] adds in §11 that the written moral law, which was transmitted by Moses, was known already before the time of Moses, and he proves this, according to the order of the precepts of the Decalogue, with various scriptural passages. Finally he says in §13: “It is clear from the divine illumination of the Patriarchs and God’s proclamations in Genesis 3, 4, 6, etc., that moral laws which were known before the time of Moses were not only to be ascribed to natural reason but were also positive laws, and thus promulgated by God.” Add to these the blessed Scherzer in his System of Theology, locus 9, §9, page 266: “From this foundation emerges the distinction between the natural moral law and the positive law (which is better than the common distinction between primary and secondary natural law).”⁵⁹ On the second point, concerning the ninth and tenth precepts, we will soon say more. Concerning the third, what we have just noted from Dorscheus can suffice. Add to this what I discuss in great detail in the Institutes themselves in book 2, throughout chapter 3.

      §44. The question concerning government within marriage in the state of innocence, which I touch upon in §§29ff. of chapter 2, is, I believe, not a properly theological question, the affirmation or denial of which implies heterodoxy or breeds scandal in the church. Thus, just as I do not demand

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      that the learned esteem my opinion, so do I not believe there to be any need to search in the commentaries of our theologians to see whether one or the other supports my opinion. I confess that there are several whom I have seen embrace a different opinion from my own. However, if we have to act on the basis of authority, I oppose to all of these the words of Luther on Genesis, chapter 3:⁶⁰ “But if Eve had remained in the state of innocence, she would not have been subject to the rule of the man but would have herself been his companion in government, which is now a matter for men alone”; but if we want to argue on the basis of reason [rather than authority], I refer to those arguments which I discuss in more detail again in book 3, chapter 3, §§35ff., where I have also taken up this question.

      §45. In chapter 1, §51, I state the common axiom: “Nothing is in the intellect which was not previously in the senses,” and this I declare to be true without limitations. But in chapter 2, §39, I say that the human intellect in the state after the fall from grace is like a clean slate, which is suitable for receiving various impressions: and in the same chapter, §§66 and 67, I declare that right reason is part of man from birth as a potential faculty capable of exerting its powers once the ideas have been formed previously by the intellect from sense impressions. I consider the doctrine of the Scholastics far too subtle; they teach that even infants have certain first practical principles by nature in the form of some kind of faculty with which they are born, etc. All these I add here because one follows from the other. And first, concerning that principle “Nothing is in the intellect …” this is so trite and widespread that it is to be found in all Peripatetic works on physics, so that I need not fear that this might be an assertion that does not conform to theology; see my blessed father’s Physics, chapter 49, questions 66ff., pages 263ff., and Zeidler’s Posterior Analytics, page 231, thesis 31, and page 572, §8.⁶¹ Concerning the other argument, it must be pointed out briefly that Plato and Aristotle disagreed over the way in which cognition works in our minds: Plato claimed this is the result

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      of remembering, while Aristotle said it occurs through the reception of external sense impressions by the intellect. Plato therefore compared the human intellect to a slate that has been wiped clean, Aristotle to a bare one that has never been written on; see Zeidler, Posterior Analytics, page 391, thesis 4, and page 586, thesis 1. You should not however need to believe that when I mention a clean slate I have run over to the side of Plato. The previous principle, “Nothing is in the intellect …,” proves that this is not what I mean. This is directly opposed to Platonic philosophy, as I shall demonstrate to you elsewhere. I used the term clean [rasa] according to the common manner of speaking, in which clean [tabula rasa] and bare [nuda] are often used interchangeably. I am, however, happy for this term to be exchanged for the other in order to remove any cause for ambiguity. Finally, concerning the third point, I here have the consent of erudite men above all suspicion, and not only from other universities, but from our own. I refer again to Melchior Zeidler from Königsberg, who in his frequently cited treatise, book 2, chapter 3, §2, and in many following chapters shows in great detail that human reason from the time of birth is only a potential, and that ideas are innate only as mere possibilities, but not as actual qualities [habitus]. I also appeal to Conrad Horneius from Helmstedt, СКАЧАТЬ