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

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      §97. Simple societies are the direct components of the house or the family. Several families compose a village, a district, a city, or a commonwealth. What consists of several villages is called a commonwealth or a province. Finally, a society composed of several commonwealths is a society of nations.

      §98. Among the natural societies this last one is the only equal society [in the time] after original sin. Among conventional societies there are several examples of equal and of mixed ones.

      §99. These points had to be made because of the various disagreements among the learned. Some of them clearly ignore the first division of society [into equal, unequal, and mixed]; some confuse unequal with mixed

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      societies; some consider divine society to be a form of equal society, while others deny that it is relevant for civil life. Some consider all societies to be unequal; others consider all to be equal. Some ignore the other division of societies [into natural and conventional], while others either reject natural society or do not describe it correctly. And some define the village and the commonwealth differently or say something different about the society of nations.

      §100. I return to the definition of right and put forward the following axioms: (1) Outside a society there is no right.

      §101. (2) In every society there is right.

      §102. (3) In an unequal society right lies only with the superior. In an equal or mixed society right is common to both sides.

      §103. The terms to have and to do in the definition of right are related to the division of right into perfect and imperfect, even though others are of a different opinion.

      §104. First, right¹² is of course divided into perfect, which Grotius calls a faculty, and imperfect, or an aptitude, as he has it. The former is the power by which I can coerce another who does not want to fulfill his obligation to render what is due. The latter is a different matter. Here the fulfillment of the obligation is left to the shame and conscience of the person who has the obligation corresponding to this right.

      §105. The means of enforcing a right is called war, if it takes place among those who live in the state of nature. Among those, however, who live in civil society, it is called punishment or legal action.

      §106. The point of this division, according to Grotius, is that strict justice corresponds to faculty and attributive justice to aptitude. But just as

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      this great man was wrong in presenting his strict justice as identical to commutative justice and his attributive justice as identical to distributive justice in Aristotle’s sense, so we would feel more comfortable without this Grotian division of justice [into strict and attributive], even though we could tolerate it. For it is not useful to us in any way and does not add anything to our division of right, and we would feel even happier if we could do without the Aristotelian division of justice, which is more suited to torturing minds than to educating them.¹³

      §107. We would rather like to look for the particular usefulness of perfect and imperfect right by asking what violation of a right should lead to a legal action in a civil society and above all by determining by what right the prince may take up arms against someone who is inflicting harm on him.

      §108. Therefore, we must briefly explain the signs indicating the two rights [perfect and imperfect], for Grotius does not discuss these. These signs, however, vary according to the different kinds of societies. (1) In an unequal society the only superior, that is, God, has a right over man and this right is perfect.

      §109. (2) Among those living in an equal society the right that is part of natural liberty and which gives rise to agreements, and in general every right except that concerning the duties of humanity, is perfect.

      §110. (3) In a mixed society the right of the superior over his subjects is always perfect, even with respect to the performance of the duties of humanity.

      §111. (4) On the other hand, the right of subjects over superiors as such, even if it is based on pacts, is normally imperfect.

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      §112. I said “as such” to avoid the objection that a wife, children, and servants sometimes have the right to legal action against the paterfamilias.

      §113. I also said “normally.” In extraordinary cases the prince grants his subjects the right to a legal action against himself, though these are legal actions only in an improper sense. They are certainly not coercive remedies.

      §114. Second, with respect to the source from which right is derived it can be divided into connate, which man has immediately from God without the consent of the person who is placed under an obligation (the power of parents, for example), and acquired, which belongs to him on the basis of an agreement with another, such as sovereignty.

      §115. Third, a division of right, or rather of faculty in particular, derives from the object. For the object of right is either the actions of others or the things belonging to others—actions insofar as I direct them (which is called authority [imperium]) or insofar as they do not interfere with me.

      §116. I say “insofar as they do not interfere with me.” This refers either to my personal actions and is called liberty, or to the use and disposition of my physical possessions, which is called property.

      §117. The things of others are the object of right in that either the thing itself is the principal subject of consideration and the other person the secondary subject or the person is the principal subject of consideration while the thing is the secondary subject. We will call the former a right in a thing, the latter, credit.

      §118. The thing is the principal subject of consideration when the person, whoever it is, possesses this particular thing and is under an obligation to me. The person is the principal subject of consideration when a certain individual is required to give me a thing, whether he owns it or not.

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      §119. In other cases the terms authority, liberty, etc., are understood in a different sense. For the term authority is also taken in a broad sense and is applied to property. Thus Grotius granted the authority over the sea to a commonwealth. Likewise, we speak of authority over a territory, etc.

      §120. Liberty is also understood as a natural ability of humans to do what their physical powers allow them to do, without consideration of other humans. And then it is not a form of right, but sometimes even its opposite.

      §121. It will be more appropriate to discuss the various meanings of property, right in a thing, and credit in connection with Roman jurisprudence.

      §122. Fourth, the faculty of those living in civil society is either common or eminent. The common faculty is that of the subjects, the eminent that of him who holds power in the commonwealth over the things and persons in that commonwealth.

      §123. This distinction can be applied to the above. For liberty is either eminent, which is otherwise described as liberty of the ruler and coincides with sovereignty (unless you wanted to say that liberty concerns the prince himself, sovereignty the relation of the prince СКАЧАТЬ