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

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СКАЧАТЬ we have pointed out in our discussion of honest and permitted actions.

      §151. An unjust action is also described as an injury, but an action tends to be described as unjust with reference to the legislator and as an injury with reference to the victim. This is the origin of the rule that “a person does not suffer an injury if he agrees to it.” And an action can be unjust even if there is no injury.

      §152. In other cases the term injury is either understood very broadly as anything that is not done rightfully, even by those who have no intention of harming, or broadly as the denial of any right, either perfect or imperfect, or it is understood strictly as the denial of a perfect right, or very strictly as a personal insult.

      §153. Finally, not only the action but also the human being is called just and unjust. An action is called just or unjust depending on whether the external actions of a person conform to law. A person, however, is characterized as just or unjust depending on the intentions behind his actions.

      §154. Which of these many meanings of right is relevant to jurisprudence? All of them, in some sense. Jurisprudence not only instructs us how laws are to be passed, explained, and applied, but also explains the nature of the

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      faculty belonging to any particular person by right and provides means of protecting and preserving it. It also gives advice on how actions are to be undertaken according to law so that they turn out just, and it judges those that have been undertaken to determine whether they are just or not. And it does all this with the intention that men may become just.

      §155. At the same time it is evident from what has been said that the principal object of jurisprudence is the laws and that the other meanings are applicable only secondarily and with reference to the laws.

      §156. Thus jurisprudence in its widest sense is nothing other than an understanding of the laws.

      §157. When laws are to be passed, or actions to be initiated according to them, jurisprudence is described as legislative or advisory. But when laws are to be applied to past actions, it is called judicial. Giving advice on actions which are to be directed according to laws and judging on actions that happened in the past presuppose the interpretation and understanding of laws.

      §158. Legislative jurisprudence is not relevant to our purpose. Advisory jurisprudence bears some relation to our aim, but we will mainly discuss judicial jurisprudence since this also presupposes the advisory variety.

      §159. Judicial jurisprudence, therefore, is the prudence required in explaining laws concerning the well-being of man in this life and applying them to the actions of humans.

      §160. This definition is clear from the above, but you must note that jurisprudence, which is an intellectual faculty [habitus], must not be confused with the actual explanation and application of laws. If these actions are based on prudence, they are classified as habits of the will and are to be considered partly skills and partly moral virtues. They may even be considered a vice when they are used to harm other people.

      §161. There are, therefore, two parts of judicial jurisprudence: the interpretation of laws, which you could for the sake of distinguishing it term the

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      jurisprudence of professors and doctors of law; and the application of laws, which is the jurisprudence of advocates and judges. Here we are referring to both, but in these Institutes we are concerned primarily with the former. The latter we will examine when discussing the resolution of controversies that are taken from ancient and modern history.

      §162. There will, however, undoubtedly be as many kinds of jurisprudence as there are kinds of law. Therefore, we will be correct in dividing jurisprudence into divine and human. The former tells us how to explain and apply divine laws, the latter how to do so with human laws.

      §163. To avoid meddling in holy theology, we added a limitation to the definition of jurisprudence, saying that it pertained to the laws concerning the temporal well-being of man. We need to expand on this in a little more detail.

      §164. I am assuming that our academies at present are usually divided into four faculties, that is, theology, law, medicine, and philosophy, though a fifth or even sixth faculty has been added to this in some places.

      §165. I assume, moreover, that philosophy, which now constitutes a separate faculty, is understood in a far narrower sense than it once was among the Greeks and Romans. There it was indeed the knowledge of divine and human affairs, that is, the contemplation of all those things which could be derived from sound reason, which meant that it embraced medicine, jurisprudence, and a large part of pagan theology.

      §166. The point of this observation is mainly that we should not confuse the properties of ancient philosophy, which acted as the queen, with present-day philosophy, which is left with nothing but the function of an honest servant. See, for example, that well-known phrase of Plato that commonwealths will be happy when philosophers rule or rulers philosophize, etc.¹⁴

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      §167. Thus it seems most appropriate to explain the distinctions between these four faculties as follows. The faculties are either subordinate [instrumentales], that is, philosophy, or principal [principales], that is, the remaining three.

      §168. The principal faculties either have as their object the body of man and aim for its health, which is what medicine does, or they strive to care for the human soul and its happiness.

      §169. That is, its temporal happiness, which is the object of jurisprudence, and its eternal happiness, which is that of theology.

      §170. Yet, the main means of obtaining human happiness, as the philosophers generally admit, are laws. It is, therefore, obvious that the explanation of laws, depending on the kind of happiness which they serve, pertains sometimes to the jurist, sometimes to the theologian. This will be discussed more clearly in the following chapter.

      §171. From this follow the order and the ranking of the four faculties, as this has been accepted among us and defended in published writings. Hence it will be easy to respond to those who want to start a controversy with jurisprudence on that account.

      §172. Those who are competent at jurisprudence are called jurisprudents or jurisconsults. Whether there is a difference between them and the jurisperiti¹⁵ is the subject of acrimonious debate,¹⁶ but that debate does not seem important enough to detain us.

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CHAPTER II

       On Divine Jurisprudence

      §1. Divine jurisprudence is the prudence that is required for explaining the divine laws concerning the well-being of humans in this life and for applying them to the actions of humans.

      §2. All of this is obvious, as long as we explain which divine laws have the temporal well-being of man СКАЧАТЬ