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

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СКАЧАТЬ or justice, or if there is any, it will be supreme foolishness, because by taking care of the well-being of others, one’s own utility will suffer. If this is not introducing the poison of atheism by deceit, what is?

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      §96. Yet I cannot imagine anyone would be so impudent as to accuse us of such a belief when we have tried so strenuously to prove the existence of this very law and of natural justice and its differences from other laws. This is so especially since the utility of individual humans, which the above-mentioned philosophers turn into the origin of universal law, is quite different from the utility of all of humanity. Thus, just as public utility is the proper norm of private utility in a commonwealth, so too is common utility the norm of particular utility in the society of humanity as a whole. To put it briefly: not everything that is useful is honest, but everything that is honest is also useful.

      §97. Thus natural law is divine law inscribed on the hearts of all men, obliging them to do what necessarily conforms to the rational nature of man and to omit that which is contrary to it.

      §98. We will inquire in more detail into this conformity with the rational nature of man in the following sections,²⁹ but the main feature of natural law, its immutability and the impossibility of dispensation, follows automatically from our definition, because the rationality of man is indeed immutable and does not allow for dispensation.

      §99. There are various well-known objections, especially with regard to dispensation. One example concerns the removal of the Egyptians’ silver vessels commanded to the Israelites by God, the killing of Isaac, the lie of the Egyptian midwives, etc.³⁰ Jurists have come up with an almost infinite variety of distinctions, which are all unnecessary, since clearly no dispensation took place there: these acts were commanded or recommended by God and thus were not theft, homicide, or lying, as prohibited by natural law. And so those who disagree with us confuse the change of the subject matter with a change in the law.

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      §100. Yet you might argue that the very fact that these actions are not theft, homicide, etc., means God gave dispensation from the law of nature, since dispensation is a declaration by the superior that a law does not apply to a particular action. I would then respond that this confuses restrictive interpretation with dispensation, which is precisely what we warned against.

      §101. Natural law can be divided quite conveniently with respect to natural human societies. Some precepts of natural law concern the common society of all humans, living among themselves in a state of nature, or, as we have said above, in a state of equality. Now that commonwealths have been introduced this is called the society of nations; others direct the duties of humans living in a commonwealth and in societies that form part of a commonwealth, such as households.

      §102. The former is usually called the law of nations. You could, therefore, call the former natural law in the strict sense, for the sake of distinguishing it from the latter.

      §103. Elsewhere the term law of nations is understood in different ways, either (1) as an attribute of a person or a faculty, which nations exercise with the permission of nature; (2) as the moral customs of several nations, when they tend to make use of their right unanimously and in the same manner (in this sense, possessions, wars, servitudes, commercial ties, etc., are said to be matters of the law of nations); (3) as a law, and in fact as natural law in general, because this does obligate all nations; (4) as the civil law of many nations (here private persons’ means of acquisition, which are said to be of the law of nations, are relevant); or (5) as the law of nations in the proper sense, which describes the duties of nations qua nations toward each other.

      §104. It will, however, be quite apparent that in the controversy whether the law of nations is a species of divine law or of human law, it is necessary to pay attention to the ultimate meaning. If we take this into account we can easily respond to those people who join Grotius in turning the law of nations into a form of conventional and human law. For they are talking

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      either of the moral customs of nations or of right understood as the attribute of a person.

      §105. In sum: The nations are equal among each other, and they do not acknowledge a superior among men. Therefore they cannot be under an obligation from human law.

      §106. But, you say, they are bound by a lawful agreement; that is, they are bound by their own will. I repeat, however, that an agreement is not a law, nor is the agreement itself binding, but in every case a law binds via an agreement. We have already said this above.

      §107. Thus the nations are (all) under no obligation to each other from an agreement. For where and when was an agreement of this kind established?

      §108. The notion of a tacit agreement will not help you out, as if nations bound themselves by imitating each other and by continuing to use certain actions which were initially undertaken by a few. I do not admit the existence of such a universal and continued imitation of this kind and I deny that imitation alone implies a tacit pact.

      §109. Perhaps the manners and customs of those who use this law mean that the law of nations is unwritten. But perhaps they do not. There is no unwritten law outside of a commonwealth. For custom is law because of the tacit approbation of the prince. When that is lacking, the custom is called de facto. Yet where among nations do we find the tacit approbation of a prince?

      §110. The Scholastics, moreover, divide precepts of natural law into affirmative and negative. That is easy to understand and applies to all laws, but the usefulness of this distinction is exiguous.

      §111. “No,” says the Scholastic; “it is a hugely useful distinction. Affirmative precepts are always binding, negative precepts always and at all times.”

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      §112. “Nonsense,” I reply; “what poppycock. Let us speak in such a way that we understand each other.”

      §113. Both types of precepts are always binding; that is, they are eternally true. But affirmative precepts are not binding at all times; that is, they do not bind all humans, nor do they bind in every single moment. Examples are the command to honor your parents, give alms, etc. But the negative precepts bind everyone and at all times. An example is the command not to insult anyone.

      §114. So do the precepts “Obey a superior,” “Live honestly,” “Render everyone his due” not bind all humans at every time? And does the command “Do not commit a crime of lèse majesté” bind all humans and, for example, the princes and sovereigns themselves?

      §115. You see that these effects do not depend on the affirmation or the negation, but are to be derived from elsewhere. The laws of nature either impose duties on humans living in any society whatsoever, or they impose duties that are peculiar to particular societies. Likewise, man can omit a thousand entirely different actions in one and the same moment, but he cannot perform these several different actions in one moment.

      §116. Those are the subtleties which anyone can understand without pretty formulae. Moreover, we do not believe it is right to use this distinction to say that affirmative precepts of natural law always allow for an exception in cases of supreme necessity, and negative precepts do not. That will be clear from what is to be said in its proper place.

      §117. Divine positive law is divine law publicized to humans through divine revelation and directs those actions that СКАЧАТЬ