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

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      §71. (2) These laws differ in that natural law is concerned with actions that either conform necessarily to the common rational nature of man or are contrary to it; positive law is concerned with actions that are neither.

      §72. For since it is apparent from natural reason that God wanted man to be rational and also for his actions to be subject to a particular kind of norm, it follows necessarily—to avoid contradiction—that God wanted to command the actions which necessarily further the rational nature of man and to forbid those which are contrary to it. But since there are many actions by which, when they are committed or omitted, the essence

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      of man is neither violated nor furthered as such, man will not be able to know how these are regulated. Here the promulgation of a whole other law is required.

      §73. I speak of a necessary conformity of an action with reason whenever the omission of an action by humankind would necessarily cause it to perish, and of repugnance to reason whenever humanity would perish as a result of this action being committed.

      §74. This difference is interpreted differently by the Scholastics and indeed in various ways. For sometimes they say that what pertains to natural law is actions that are in themselves and by their nature, even antecedently to the divine will, honest or despicable, while indifferent actions pertain to positive law.

      §75. Sometimes they say that obligation in natural law flows from the object to the precept; in positive law, however, from the precept to the object.

      §76. Yet none of these definitions are that good. You could say that actions determined by natural law are honest or despicable as such [per se] with regard to their immutability. But they apply this expression “as such” to imply that this is antecedent to the act of commanding natural law.

      §77. However, they contradict themselves when they say that certain acts are by their nature honest or despicable. In a human action you can consider either its nature or its morality in relation to a law: its nature insofar as it is abstracted from moral circumstances, and morality insofar as the moral circumstances are examined.

      §78. Moral circumstances are covered in the common phrase who, what, where, etc.²⁵

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      §79. But beware of thinking that, where one or another of these circumstances is present, there is immediately a moral circumstance.

      §80. For otherwise you would have the absurd consequence that no action could be considered as a natural phenomenon, since every action certainly involves one of these circumstances.

      §81. Thus these circumstances are called moral insofar as a law commands or prohibits a particular action because of these.

      §82. And so he who calls certain actions honest or despicable by their very nature says that certain actions are by their nature moral. But he who says so does in fact declare that certain actions, if abstracted from their moral circumstances, by virtue of this abstraction involve moral circumstances.

      §83. Further, an honest action is one which is commanded by a law, a despicable action one which is prohibited by a law. A law, however, is the will of the legislator, and the source of all laws is the divine will.

      §84. So they who want certain actions to be honest or despicable antecedently to the divine will also want certain actions to be commanded or prohibited by a law that is prior to law.

      §85. I know indeed that a distinction is made between honest actions considered materially and formally; they claim that laws are defined materially by us, but that those actions are honest or despicable formally which conform to the dictate of right reason.

      §86. Yet I also know that the distinction between material and formal, when applied to moral affairs, is either obscure or superfluous, and in most cases unsuitable. I know that in this respect good in the sense of useful is confused with good in the sense of honest. I know that they define law as a dictate of reason and stick to that error. I know finally that the

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      Apostle who defined sin as the transgression of the law knew very well the formal characteristics of a despicable action.²⁶

      §87. Finally, how, without contradiction, could obligation diffuse itself from the object to the precept, since the efficacy of every obligation depends on reverence and fear of the legislator?

      §88. Thus, are not all actions by their nature indifferent? They are indeed; that is, all physical actions abstracted from their moral circumstances are neither commanded nor prohibited.

      §89. Yet you will say that blasphemy and theft, for example, by their nature are not indifferent. I say, however, that these are not terms for action considered with respect to their nature. For blasphemy involves a concept of deliberate choice, that somebody utters certain words expressing disrespect for God. Theft involves the concept of fraudulent removal. And because of these circumstances blasphemy and theft are already prohibited by an eternal law.

      §90. If you abstract from these circumstances these actions will no longer be despicable. They will not even be blasphemy or theft. The physical action in blasphemy is the uttering of words which are blasphemous. A witness, for example, when he repeats these words in giving evidence, does not commit blasphemy. In theft physical action is seizing something that belongs to someone else, etc.

      §91. Thus, in order to explain briefly what I mean: the Scholastics confuse the natural aspect of an action, that is, an action considered physically, with the moral nature of an action, that is, an action considered morally.

      §92. But perhaps we are contradicting ourselves by refuting others. Is it not the same whether you say that the object of natural law is an action which

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      is honest or despicable antecedently to the divine will, or you say that there are actions which have a necessary connection with or are repugnant to the rational nature of man? For if we declare that God commanded or prohibited these actions because of such a conformity or repugnance, do we not by that very fact concede that these actions are honest or despicable prior to the divine will? Do we not admit that obligation flows from the object to the precept?

      §93. There is, however, no danger of that. It can indeed be inferred from our assertion that those actions that are the object of natural law are by their nature good or bad.²⁷ Yet it cannot be inferred that they are honest or despicable. These actions harm or promote the utility of humankind, even if you abstract from the divine will, but as long as you remain with that abstraction, they are not commanded or prohibited by law, and they do not obligate humanity to anything.

      §94. Thus it is certain that particular medicines are very useful for ill people, and some foods on the other hand are highly harmful to them. Yet these medicines or foods do not obligate the sick person to do anything, if you abstract from the will of the legislator. Remove the legislator and it will be true without exception that every person is the sole guardian of his own utility.

      §95. Ah, you will cry, I have caught you! When fools avoid one vice they fall into another. According to your opinion, therefore, utility itself is the mother of justice and equity; nor does nature know just from unjust.²⁸ And this is what Carneades declared, what the herd of Epicurean swine has taught, and Hobbes, the Epicurean, СКАЧАТЬ