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

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СКАЧАТЬ or if I compared the study of nature with medicine, it would necessarily follow that the care of the body through the study of medicine is mediated by medicine even though the study of nature would have this care of the body as its immediate aim through the mediation of medicine.

      §50. At the end of chapter 2 I discuss the exact difference between jurisprudence and theology and the true boundaries between these two university faculties. I argue there that the explanation of divine laws concerning the duties of men toward their fellow men also belongs to jurisprudence and that this doctrine is shared by jurists and theologians; see §§137, 141, and 142 in that chapter [2]. But in order to remove any remaining doubts on that, I appealed (1) to the common practice in the territories of the Protestant princes, for it is known that in matrimonial cases (and the divine positive law, which also pertains to jurists, applies particularly in these cases) when there is any doubt concerning a prohibition in divine law, opinions are sought not only from the theologians, but from the faculties of law. And this is because the doctrine on marriage among Protestants is part of ecclesiastical jurisprudence, which Carpzov at our university and Brunnemann and the excellent Stryk in Frankfurt an der Oder have explained in greater detail in entire treatises.⁸³ And in these treatises they also cite opinions of faculties of law on matrimonial cases. Thus from the response of such a faculty of law emerged the controversy between Buch holz, Havemann, and Strauch concerning the case of a marriage with the sister of a deceased wife.⁸⁴ Bucholz listed various testimonies of our theologians to prove that matrimonial cases are a secular matter, because matrimony, according to our belief, is not held to be a sacrament; see the responses of the Rinteln jurists, etc., numbers 9 and 10, pages 27ff.⁸⁵ (2) The practice of the consistories⁸⁶ shows the same, because usually half

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      their members are theologians and half are jurists, for no other reason than that spiritual matters concerning eternal salvation pertain primarily to the theologians, while secular matters, which directly concern temporal tranquillity, are the business of the jurists. And in order to show that this is not a gratuitous comment, I appeal (3) to the principal Constitution of the Elector Augustus, the Saxon Elector, in the Regulations of the Leipzig and Wittenberg Consistories, title 1:

      Since not only cases of conscience, but also secular cases must be brought before these consistories and dealt with there, concerning matrimonial cases, the goods and salaries of church employees and schoolmasters, the life and conduct of teachers and congregation, none shall be staffed exclusively with either theologians or secular officials, but in equal measure with persons from both estates, that is, with two learned and pious, upright and honorable theologians, and with two secular officials. Title 8. The opinion or judgment, however, should be formulated and pronounced according to holy Scripture and the laws that are commonly accepted and in general use in our territories. And since a number of eminent theologians, [such as] Luther and Phillip [Melancthon], drew conclusions from Scripture, which concern cases of marriage and other similar matters but are incompatible with the common laws, so the members of our consistories shall pay heed to these, too, and insofar as these have been hitherto observed in our territories and have been accepted through the practice of the consistories, shall formulate their judgments and decisions on that basis.

      Therefore, I concluded in §140 of chapter 2 that in this respect jurisprudence is privileged in comparison to medicine and philosophy, because these two must not draw their principles of demonstration from theology. There is no doubt in the case of medicine; nor do the physicians pretend to have the right to do so. In the case of philosophy I recently gave you conclusive proof of this. That is what the venerable Faculty of Theology of our university referred to recently in the program for the ninth Sunday after Trinity this year, displayed in public, which said that “nobody in our university should be permitted to explain the mysteries put forward in Scripture, or to derive what is just and unjust from revelation, which is the duty of moral theology, or to hold classes on the fathers of the ancient church, the dogmas, heresies, rites, and whatever else ecclesiastical history

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      examines, unless he has obtained the right and the privilege of teaching these matters from us after a thorough examination.”

      §51. In chapter 3, §§65ff., I touch on the mixture of philosophy with theology, which was the worst possible thing introduced by the Scholastics, and in the following paragraphs I include Pneumatics⁸⁷ in that. This goes against the authority of many men who enjoy great respect in many matters, so in order that my opinion may not appear too harsh or new to you, I draw on the authority of the illustrious Seckendorff in his Christen-Staat,⁸⁸ book 3, chapter 7, §2, pages 514ff.: “Our Messiah did not reject the use of the Jewish schools, but rather pointed to them and called them the chair of Moses. What he did reject, however, was the abuse, that is, the mixture of God’s word with human opinions and interpretations and the formation of different sects: for it is from the disputes of the schools that the factions of the Pharisees and Sadducees developed, about which much can be read in the New Testament.” See also, in the same work, chapter 7, §4, pages 518ff.:

      One does not hear it said that Paul had a philosophical manner of speaking or arguing according to the terms of the art of logic, topical argument, metaphysics, or apodictic argument, which were already in existence by then. He was perfectly capable of forming rational and concise conclusions and using ornate expressions supplied by reason and practice without the artful books and teachings of the Greeks, and he kept the Holy Spirit as an instrument for preaching the word. These are the elements that are left over from the good light of nature and which he purged and sanctified. Thus, when he began to dispute with the sects of the Epicureans and the Stoics in Athens and could adapt himself well to people, becoming, as he himself says, all things to all people, he did not need the philosophical wisdom of the schools, but only proclaimed the gospel of Jesus and the resurrection to them [the sects], regardless

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      of how incoherent it seemed to them. And since he spoke publicly (in the Areopagus⁸⁹) on the square where executions took place, he did have a great opportunity to start talking on, for example, being as such, the divine nature, or the condition of the world, just like the philosophers who came up with these topics and could conduct nit-picking arguments over them with each other. Yet he did not do it but set aside all such art and artful words and began from a point that seemed the worst possible and made them ignorant idiots: that is, from the altar of the unknown God. He then moved on to the foundation of the word of God, without considering it worth examining or refuting their theology and idolatry in detail, or disputing de natura deorum, that is, the nature of God and his properties in metaphysical terms. Instead he began with the article of the Creation and the right knowledge and reverence for God that followed from this: he accused them of idolatry and ignorance. And, leaving aside all their countless and subtle books, he put forward the single testimony of a poet which confirmed Creation, namely, that humans were a divine race or came from God. Thus he left their whole philosophy and subtlety aside, admonished them only to convert by holding up to their eyes the threat of the last judgment and the glorious opportunity, which the judge of the world (Christ risen from the dead) offered through faith.⁹⁰ Thus it is evident how this incomparable Apostle or messenger of God, who was directly instructed by heaven, taught Christianity even among the most learned people of that age (these were in Athens which had the most famous school of philosophy). He did this without philosophical art and did not use any tools provided by the learning common at that time, unless he found something in a well-known book that conformed to the article of faith concerning Creation. One also finds that he first taught from the Old Testament in the Jewish schools and then used this to prove that Jesus of Nazareth was the Messiah prophesied in it. He directed his two dearest and best disciples and followers (who became wonderful and holy bishops), that is, Timothy and Titus, to Scripture and to reading and repeating it diligently, just as he warned them to abstain from worldly cleverness and school quarrels.⁹¹ He warned Christians in general of this, as he did in these words to the Colossians: “Beware lest

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