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

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СКАЧАТЬ beasts also after the fall from grace, namely, that they are able to reason and to acknowledge a supreme legislator and direct their external actions according to his precepts. This state is opposed to the life and condition of beasts or to the life of humans abusing this state and following the dictates of their corrupt reason in every way.

      §51. This natural state can, second, be subdivided conveniently into a natural state and a social state, the former understood as the condition of humans that would obtain if man, after the fall, from birth had been

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      left to his own devices and not enjoyed the help of other humans; and the latter, the social state, understood as the condition of humans living a life that is improved by the efforts of others.

      §52. And this natural state and social state are not to be confused with the natural state and the social state of Hobbes. Even though we may be using the same terms, the substance is very different. For in his theory of the natural state Hobbes considers man to be in opposition to other humans, and he wants this to be a state of war of all against all, none of which fits with our natural state.

      §53. The social state is, third, either natural, that is, the condition of humans living in an equal society who do not have a common lord and in which no one is subject to another, or civil, which is the state of those who live in a civil society and in the other minor societies comprehended within a civil society.

      §54. The natural state in this sense must not be confused with that of Hobbes. Hobbes’s state is one of war and opposed to the social; ours is peaceful and social.

      §55. And, fourth and finally, the civil state is either natural, that is, a condition which man has by nature and without any human action (for example, being a man, being an infant, etc.) or it is adventitious, that is, a condition which man has as a result of human imposition (for example, being a consul, a nobleman, a peasant, etc.).

      §56. Yet we believe that it is justified to apply the term natural state to all these meanings. In the first meaning the term is based on the essence of man, in the second on the misery accompanying the nature of postlapsarian man, insofar as he is left to himself; in the third it rests on the natural liberty and equality of humans, and in the fourth on the properties, mainly the physical properties, which man has by nature.

      §57. Yet if someone wanted to call the first type of a state of nature the state of humanity, that of the second the condition of solitary life, and that

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      of the third the state of equality, we will accept that, since we do not want to argue over words.

      §58. These four natural states can be compared with each other with respect to their actual existence. The first exists or at least should exist in all humans. The second is not common, but it can exist, for example, if a single man is cast ashore on an uninhabited island after surviving a shipwreck; and it exists, for example, in the case of infants exposed by parents. The third is very common, for example, among nations in their mutual relations. About the existence of the fourth, however, there can be no doubt.

      §59. Thus, those people err who believe that the state of nature of the second kind is a fictitious state or that the misery which we said accompanies that state is fictitious.

      §60. But we had a reason for presenting this fourfold meaning of the natural state. The first will be useful in deriving the duties of man toward God, the second in demonstrating the need for a society, the third in comparing diverse precepts of natural law with each other and elsewhere. The fourth belongs to jurisprudence, especially human jurisprudence.

      §61. We now return to the argument. We have said that in either state of man, that of innocence and that after original sin, both forms of divine law, natural and positive, had a place. Concerning natural law, perhaps, there is no doubt. Positive, revealed law in the state of innocence was that which prohibited eating from the forbidden tree, as well as the prohibition of polygamy and divorce when marriage was originally established. In the state after the fall from grace there are various positive laws, about which more will be said later.

      §62. We are, however, trying to explain the divine laws to the extent that they are relevant to jurisprudence. I therefore believe it is evident that we are primarily concerned with those laws which govern the postlapsarian state. For jurisprudence must explain the laws which are to be applied to

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      human actions subsequently [to the state of innocence]. We are not, I believe, judging our first ancestors [that is, Adam and Eve], we are not their lawyers, and we are not concerned with their actions, but with humans of this age who retain only remnants of the original felicity. If only they can preserve these, that is enough for tranquillity in this life.

      §63. Now let us see the differences between these two laws. Usually authors look for the difference in the fact that natural law binds all humans, while positive law binds only the Jewish people. But it will be clear from the following that this is not sufficient.

      §64. (1) For a start natural law and divine positive law differ in their principles of knowledge: in natural law this is right reason; in divine positive law it is divine revelation.

      §65. The proof of this difference is derived from the second difference. The Apostle Paul recognized this difference exactly, and this is clear in part when he said that those nations that did not have the positive law did by nature what was according to natural law, and in part because he declared that he would not have known from reason alone that concupiscence is a sin, unless the divine positive law had said, “Thou shalt not covet.”²⁴

      §66. By right reason I here mean a natural faculty of reasoning or deriving true conclusions from true first principles. But as is obvious to anyone, man has this faculty from birth as a potential. This is suitable for exercising his powers if, with the input from the senses, the ideas have first been formed by the intellect and the same potential has later been exercised in human society.

      §67. Therefore, we cannot but laugh at the excessively subtle meditations of the Scholastics, who teach that infants have certain practical principles by nature that have the form of a kind of innate faculty, and these tell them what is to be done or omitted according to the law of nature.

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      §68. Each practical principle is a proposition. Every proposition indicates whether a predicate does or does not conform to the subject. Yet infants are destitute of the knowledge of terms, especially moral terms, since even adult, erudite humans barely agree on their meaning. Who would, therefore, believe that infants, for example, know that murder is to be shunned and that agreements are to be kept, since they do not know what an agreement is, what murder is, etc.

      §69. The Scholastics themselves are unsure whether this innate faculty is only a potential in infants or is already present in them. Some have reached the point of saying that this faculty is neither of the two, but is somewhere between being actually and potentially present. Thus, we have a particularly felicitous solution whereby something is put forward which can both be and not be at the same time.

      §70. Even if positive law is derived from divine revelation, it is not permissible to argue as follows: This act, which is commanded or prohibited in Scripture, is recognized as honest or despicable by pagans, too. Therefore, it is part of natural law. For these pagans are either Greeks or Romans. The Romans took their laws from the Greeks. The philosophers of the Greeks borrowed much from Moses. Solon similarly introduced many laws from Egypt to Athens. The Egyptians, however, took the rudiments СКАЧАТЬ