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

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      §118. Thus, it is evident that this divine law is mutable and admits dispensation, but only by God, not by the pope or any prince. Yet the will of God is not therefore changeable.

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      §119. Positive law is divided into universal and particular. There is no doubt concerning the latter, but the existence of the former is denied by some and defended by others. I think that the question what it is needs to be examined before the question whether it exists, if this can be done while preserving peace with the Scholastics.

      §120. We speak of universal law with respect to all of humanity, particular with respect to a certain people. This distinction can, however, be taken in a twofold sense, either in relation to publication or in relation to obligation. Either meaning is relevant here, but publication is more important.

      §121. Thus universal divine positive law is that which has been publicized to all humans or to certain persons representing all of humanity. The particular law is that which was given to the Jewish people.

      §122. The Jews not only affirm all too confidently that this universal law was given to Adam and Noah, but they also describe it in their own way, mixing as they are wont to do false statements with true and augmenting natural law with positive law, mainly from their rabbinic traditions, whose opinion Selden, that ornament of Britain, explained in more detail in a work devoted to this particular question.³¹

      §123. We have set aside all these traditions and look only toward Scripture, and so choose the middle way: we cannot deny the existence of such laws. For not only was Adam given the precept concerning the forbidden tree, and on avoiding polygamy and divorce, when marriage was first established, but Noah too was ordered to punish homicide as a capital crime and to avoid eating blood, etc.

      §124. It is clear that these are positive laws because the relevant actions do not have a necessary connection with the rational nature of man.

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      §125. We will survey the forms of this positive law in their proper place. We should only note this in advance, that these positive laws direct the duty of man either with respect to the worship of God or with respect to other humans. In the former case they have eternal beatitude as their immediate object. The latter have temporal well-being as their immediate object.

      §126. Divine particular law is either ceremonial or forensic. The former concerns the regulation of divine worship, the latter the decision of court cases among the Jews. In the forensic law God aimed at the particular temporal well-being of the Jewish people, in the ceremonial at the eternal beatitude of all of humanity.

      §127. Therefore, ceremonial law for the greatest part (that is, insofar as proselytes too were bound to its observance) binds all humans.³²

      §128. Thus, ceremonial law is, so to speak, in between forensic law and that law which we have called universal law. Universal law is such by virtue of its universal publication and obligation. Forensic law is particular in both respects. But ceremonial law is particular in its publication, universal in its obligation.

      §129. For all precepts concerning religion are universal in terms of their obligation, for there is only one religion which cares for eternal salvation. They who neglect it are punished eternally.

      §130. Nor should you be distracted by the common rule that “a law which has not been publicized is not binding.” This actually means that the (positive) law is not binding before it has been published. It does not mean that it binds only those to whom it has been actually publicized. For this would lead to many limitations, including, without doubt, the following: unless the subjects to whom it has to be publicized are at fault and do not admit the publication, for example, if they are rebels.

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      §131. Forensic law has been extinct since the Jewish commonwealth has been extinct and the Jews have been dispersed over the entire globe. Ceremonial law expired with the advent of Christ, who having first fulfilled the law introduced new sacraments and a new religious worship, either by himself or through his apostles. This obligated all humans, in the same way, as once the Jewish law did, as we have said. About this there is all the less doubt, as the apostles were ordered to preach the gospel to all nations.

      §132. However, Christ should not be called a new legislator because of that. For those who use that phrase imply that Christ also changed something in those precepts which concern the duties of humans to each other and required a more perfect obedience from Christians in the New Testament. But that would obviously contradict the infinite wisdom of God the Father, and it is also refuted at length by the theologians.

      §133. So, does the particular Mosaic law and especially the forensic law have no use today? Grotius claims it has a threefold use: one is to show that the commands of those laws are not contrary to the law of nature. Another is to show that Christian magistrates may now pass laws that are similar to those given through Moses, unless maybe they are ceremonial or Christ ordered something to the contrary. Third, [it shows] that whatever has been commanded by the Law of Moses and belongs to the virtues Christ demanded of his disciples must also be fulfilled by Christians now, perhaps even more fully than before.³³

      §134. We agree with the first of these uses, but we have already refuted the second and third uses added by Grotius. We also deny that the second use suggested by Grotius concerning forensic laws applies to other cases as well. For in these laws God had in mind the well-being of the Jewish commonwealth, but the individual Christian magistrates must have the utility of their commonwealths before their eyes, which can be different from the utility of the Jewish commonwealth.

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      §135. For example, the forensic law punishes theft by requiring the culprit to restore double or quadruple the amount stolen. This was sufficient for the punishment of thefts among the Jewish people. Thus, if in any commonwealth these punishments are sufficient, the prince will do well if he adopts them. But if he cannot obtain his end and thefts continue to multiply, the prince commits a sin if he does not increase the punishments together with the growth in crimes.

      §136. They clearly err, however, who believe that divine forensic law prescribes a norm to princes, to which they must adapt the laws of their commonwealths, and that they sin if they issue a regulation which is not determined by these forensic laws or is contrary to them. On this basis, for example, they criticize the hanging of thieves.

      §137. It is clear from the division of divine laws that divine jurisprudence has as its object natural law, and among the divine positive universal laws those that concern the duties of humans toward other humans.

      §138. For these laws, as well as natural law, have the temporal well-being and tranquillity of man as their object—not principally, I should say, but still directly.

      §139. We believe that this doctrine conforms to common practice in the territories of Protestant princes, and among us to the practice of the consistories and the regulations issued by the princes.

      §140. Thus, our jurisprudence can be called Christian with regard to its positive laws because not only is the object of demonstration here taken from sacred Scripture, but the first principle of demonstration is derived from revelation, which the other parts of jurisprudence, as well as medicine and philosophy, do not do, and indeed must not do.

      §141. Therefore, jurisprudence СКАЧАТЬ