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

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СКАЧАТЬ which is a fiction I put forward in §31. So that you do not think I need an argument from analogy, I ask: Do you believe it to be a sin against orthodox religion, if an arithmetician speaks thus: “Let us pretend that there were twelve pots in Canaan in Galilee, of which each held three measures; it follows then necessarily that they were filled with thirty-six measures in total.” But here something is invented which Scripture revealed to us differently, namely, that there were only six pots. And I am convinced everybody will say that this fiction of the arithmetician is close to being a lie, because he invented something contrary to revealed truth. And if that is not said, this will not protect him against the accusation that his argument is absurd, even if he put forward as a proof that truth, especially divine truth, is simple, and that therefore what is contrary to it is a lie. Apart from the fact that here a moral lie is confused with a logical error, how is it possible to say that if our definition of a fiction is assumed and holds up, a fiction which neither

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      affirms nor denies anything is contrary to truth? I believe that all remaining doubts concerning my opinion and its orthodoxy will now have been lifted from your minds. I will add a few comments on its novelty. I do not fear being accused of that, because I am convinced that fictions are accepted by scholars in all faculties. I would even be prepared to bet that, even in their dreams when fantasy strays more widely, none of our people would have thought of asserting that a Christian cannot invent something that is contrary to scriptural revelation. Rather, if someone wanted to examine the writings of the theologians more closely, he would undoubtedly be able to collect several examples of such fictions. So far I have not had the leisure to do so carefully, but I will offer you one, which is very clear and based on the authority of a theologian who is absolutely orthodox, that is, our venerable Mr. Alberti. For I read in part 2 of his Compendium of Natural Law Conforming to Orthodox Theology,⁹⁵ chapter 7, §21, page 139: “Imagine the following impossible situation: that there existed at that time [when Adam distributed a part of his goods among Cain and Abel, so that the former owned all immovables, that is, the fields, the latter the movable possessions, that is, the cattle] so great a number of humans as would have been required to possess the entire globe; then Adam would have had to grant each individual some part of it, because he had received some for each person.”

      §53. In the same chapter 4, §64, I conclude that sociality is the foundation of the law of nature. I do not want to put forward any new argument to prove this assertion, but will refer to a passage from the illustrious Seckendorff, which will, so to speak, make it obvious to you that our opinion already flourished before the birth of Christ, and that it is therefore older than the doctrine of the Scholastics, who derive natural laws from divine sanctity, and older than the very recent opinion of those who look for it in the state of innocence, and that this illustrious man proved our conception of human sociality. This is contained in the Entwurff oder Versuch von dem allgemeinen oder natuerlichen Recht, which is added to his German speeches, pages 442ff., §§10 and 11:⁹⁶

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      It is not difficult to see what the real characteristic and formal nature of this right is, namely, that it instructs the nature and reason of man and regulates his sociability with other human beings, or rather presupposes it. For because all humans have a creator and are the descendants of one man (a fact which the pagans suspected, but we know as a certain truth from God’s word), and have been created by God in such a way, both in their body and soul, that one human being cannot live without another, so the entire nature of man is such that he forms societies with others, not only in the conjunction of man and woman (for this is characteristic also of animals) and not out of a pure instinct, the way herds gather, but with deliberation and rational thought. Therefore, it must be posited that not just need, but the nature and reason of man, which are derived from the divine order, demand sociality and a form and just manner of dealing with each other in such a society. This is evident from, among other things, the fact that if it occurred from mere need, a man who had everything he required for his sustenance and comfort would not desire the company of other humans. He desires it zealously, however, unless he is deprived of natural reason or corrupted by deeply rooted sinful habits or bad education. So, like others, Cicero the learned Roman proves that such a desire is inborn, general, and a work of nature. Thus he says: “Humans are born for the sake of other humans, so that they can be useful to each other and help each other.” 1. Off.⁹⁷ “Next to God it is man who can be most useful to man.” 2. Off.⁹⁸ “Nature requires that one human being advise and help another, whoever he may be, for no other reason than that he is human.” 3. Off.⁹⁹ “Nature drives us to want to help many people, especially in order to instruct them and make them wise. For this reason it is not easy to find someone who would not happily teach another what he knows. Thus we are not only eager to learn, but to teach others.” 2. De finib.¹⁰⁰ We differ from animals mainly in that we speak with each other and can communicate our opinion to each other. In another passage he provides a parable by an old philosopher and says:

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      If it were possible that a man were elevated to heaven and there saw the glories of the stars and other beautiful things, and then returned to earth, this would no longer give him any pleasure and joy, if he did not find or meet anybody with whom he could talk of the things he had seen and heard.

      It can easily be concluded from this that if God had not commanded this sociality, humans would not require any other right in this life than what we see in animals, who have an instinct for self-preservation and seek to satisfy their lust.

      And although some favor the opinion that this means of demonstrating sociality achieves little among pagan nations and barbarians, we nevertheless oppose to this the words of the illustrious author, ibidem, page 440, §6:¹⁰¹

      The fact that we who are Christians and have specific and detailed civil laws speak about, teach, and inquire after this general divine or natural law has this reason and purpose in particular, among others: (1) that we recognize all the more our beatitude which we receive from the revelation of the divine word and can judge on good and evil all the better. For this reason we also believe the law of God and nature exists in order to discipline us, to direct us to Christ. Thus we do not only realize our faults and errors more readily, but also live all the more in a holy and just manner, because we are bound to it with twofold, even threefold ties. For we are under an obligation to do what is right, on the basis of nature and reason insofar as we are human beings and inhabitants of this world, on the basis of the laws of the magistrate insofar as we are citizens and members of our fatherland, and on the basis of God’s word insofar as we are believers and Christians. (2) that God’s word may not be accepted by all nations, and our civil and territorial law is even less accepted by strangers, but the rules and general reasons of natural right are valid in all human affairs. Even infidels or those outside the church, that is, those who are strangers and not subject to our government, must conform to these, since they must understand and allow themselves to be guided by the teachings of nature and reason, right and wrong, especially in matters of peace and war and in commerce and trade, even though

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      they neither respect nor recognize either the foundations of our religion or our civil laws.

      Furthermore, Boecler in the Prolegomena to Grotius’s On the Rights of War and Peace¹⁰² pointed out that according to the most ancient philosophers the origin of law and justice had to be derived from the principle of sociality. Mr. Schilter proves this opinion in his Philosophy of Law, chapter 3, §6, page 84.¹⁰³ Add Augustine, On the City of God, book 19, chapters 5, 13, and 14.

      §54. So far I have supported those opinions that might seem either doubtful or ambiguous in the first part of the Institutes. In the remaining two books this sort of explanation did not seem necessary because there I put forward what I meant in a little more detail in order to avoid obscurity. But you should not СКАЧАТЬ