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

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СКАЧАТЬ easily to formulate a response to particular questions concerning the imputability and morality of human actions and the degree to which they can be subject to laws. (1) Actions that are committed by one person, as well as operations of other matters of whatever kind and events of whatever kind, cannot be imputed to another person, except insofar as he can and is obliged to influence these or insofar as he has anything to do with them.

      §67. He has something to do with the actions of others if he furthers them, commands them, consents to them, gives the persons performing the action a guarantee, or participates in their profit, gives advice, praises, assents, does not forbid, or hinder, or dissuade, and does not make known when he is obliged to do any of these things.

      §68. Thus the actions of others can be imputed to these people, although it is imputed to the former primarily, to the latter secondarily. More on that in its proper place.

      §69. (2) If it is not in the power of a particular person to determine whether what is in him or is not in him is there or is not there, this cannot be imputed

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      to him, unless he did not apply the obligatory diligence in ridding himself of defects and introducing what is free of defects instead.

      §70. (3) He who does not have an occasion to act and is not responsible for it will not be blamed for his failure to act.

      §71. (4) Those deeds that are perpetrated as a result of invincible and efficacious ignorance or error are not imputed. But where ignorance or error is only concomitant or vincible the action is imputed. One example is the ignorance of laws that have been properly published.

      §72. (5) The error of a third person, be it vincible or invincible, cannot be blamed on another who is not guilty of the error of the third person. In such a case it is more equitable for the erring person to be blamed.

      §73. (6) Those actions that are beyond the powers of a person are not imputed, except insofar as he is responsible for the fact that they are impossible actions. Here the rule applies that nobody is bound to perform impossible actions.

      §74. (7) Those actions to which a person is coerced are not imputed.

      §75. (8) The actions somebody performs under the influence of great fear, such as a promise, are sometimes imputed and sometimes not imputed, whether the action is contrary to the laws or not. This will become clear from the full discussion in the chapter on the duty of man in relation to himself and in the chapter on the duty of man concerning promises.¹⁰

      §76. (9) The actions of men lacking the use of reason are not imputed to them.

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      §77. (10) In a human court it is very rare for actions committed in sleep or in dreams to be imputed.

      §78. The author of law is either God or man. The former exercises his command by virtue of his right of creation independently of the consent of man. Man acquires the right to command either immediately through a divine concession or via the consent of another human. From this follows the first division of law into divine and human.

      §79. Opposed to laws is their modification when the command itself is abolished either wholly or in part, and dispensation when one or the other of the subjects is exempted from a law which otherwise would pertain to him and from its obligation while the law remains in force for all others.

      §80. Therefore, those people are mistaken who confuse dispensation with restrictive interpretation.

      §81. Only the person who can pass a law can change it and grant dispensation from it.

      §82. Right, understood as an attribute of a person, is an active moral quality conferred by a superior, which enables this person either rightfully to receive something from some other person with whom he or she lives in a society, or to do something.

      §83. That is called an active moral quality which extends the liberty of man, even though it is sometimes used to describe a passive physical experience, for example, the right of a beggar to receive alms. It is opposed to a passive moral quality which restricts the liberty of man, which is what an obligation does, even though this restriction often denotes a physical action, for example, the obligation of the rich man to give alms.

      §84. In explaining the origin of right the learned are either silent or disagree in strange ways; some argue that nature produces right, others say

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      that it is law; some say it is property, others consent, and others again say that it is one of these two.¹¹

      §85. We must first of all distinguish the right of God and that of humans. The former is a right only by analogy and is very different from the right of humans. For God has this from himself through Creation. But the right of humans must ultimately be derived from the will of God, and in general from the will of a superior, which produces a right insofar as it increases liberty and, insofar as it restricts it, is called a law and is the origin of obligation. Consent on both sides is only an occasional and nonessential cause. Nature considered physically is irrelevant here, as is property, which is already a form of right.

      §86. Right pertains to a person. A person here denotes a human being considered in his state [status]. A state is a quality which affects man and according to which his right varies.

      §87. A person is either simple, that is, a single human individual, although he may participate in several states, or composite and formed by the union of several individuals in a particular state. The latter is called a college, society, university, etc.

      §88. Thus, we will not discuss the right of God and of angels because that is not relevant here.

      §89. By the word something in the definition of a right I mean a corporeal creature in general, be it human or inferior to man, be it a substance or an accident, something which is traded or which is not traded. Thus, again, neither God nor angels are relevant here.

      §90. This right is demanded from another human with whom one lives in a society. For man alone is the immediate and primary object of right.

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      §91. A society is a union of several humans for a certain end.

      §92. Nevertheless, the term society is understood so broadly that it includes the society between God and humans in an analogical sense.

      §93. Society in this broad sense is divided into unequal, which is that between persons who are different in kind and one of whom commands the others; equal, which differs from unequal societies in both respects [i.e., they are between persons of the same kind, none of whom commands the others], and mixed, which exists between persons of the same kind, one of whom commands the others.

      §94. The only unequal society is that between God and man. Human societies are either equal or mixed.

      §95. Human society is either natural, toward which man is led by divine command or by the concern for the utility of all humans, or conventional, which humans enter into for the sake of a particular benefit.

      §96. Since these forms of particular benefit vary in infinite ways, conventional societies, therefore, are infinite in number. Natural societies СКАЧАТЬ