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

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СКАЧАТЬ partly because of its object, but properly because of its end. Indeed, only jurisprudence is concerned with human laws, because these are accommodated to the temporal well-being of man. The precepts of religion pertain to the theologians,

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      and the doctrine concerning these bears the name theology in the strict sense, which explains the articles of faith.

      §142. The divine laws, however, which regulate the duties of humans toward humans are common to theologians and jurists. They belong to the former insofar as they are, according to the intention of the legislator, subordinated to eternal salvation, or insofar as the gospel cannot be explained properly without the law. They are relevant to the latter insofar as God in them has immediate regard for the tranquillity and decorous order of this life.

      §143. And therefore, when the theologians interpret these precepts, they do not simply call their treatises theology, but moral theology, which explains what actions are to be performed.

      §144. You could also draw the following distinction between moral theology and divine jurisprudence. Moral theology inculcates the moral law [i.e., the Ten Commandments], which binds all humans without distinguishing between natural law and positive universal law; moral theology always uses sacred Scripture as its foundation, which is why moral theologians generally treat the moral law and natural law as synonyms. Divine jurisprudence, however, separates natural law from divine, and proves the former from the dictate of right reason, according to the doctrine of the Apostle Paul, but seeks the latter from revelation alone. This distinction is immensely useful in controversies, which are otherwise extremely difficult, concerning the obligation of the prince with respect to precepts of this kind and his power of granting dispensation and of legislation, etc.

      §145. Therefore, it is correct to divide divine jurisprudence into natural and the divine positive universal law that inculcates the duties of humans toward each other. The latter we shall from now on for the sake of brevity simply call divine, and the laws with which it is concerned, divine laws. We will make an effort to do what has not been done before, that is, to keep them apart in the individual chapters, though we do not consider these two species in isolation from each other.

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CHAPTER III

       On the Interpretation of Divine Laws in General and on Practical Principles

      §1. Every variety of jurisprudence teaches the interpretation and application of laws. For these are the means of introducing general tranquillity. And if jurisprudence neglected to teach the means of implementing the laws and remained content with saying what they are, it would not deserve the name of prudence.

      §2. Interpretation must precede application, according to the rules of good teaching.

      §3. Interpretation is the explanation of the will of another person when the intention is not clear. For the kind of interpretation that is called authentic is, properly speaking, no interpretation, but either a new law or a new agreement. That is not relevant here.

      §4. This will is either that of a superior or that of an equal. Therefore, interpretation is either that of laws or of agreements, similarly of last wills, scholarly arguments, etc.

      §5. Laws, however, are either inscribed in the hearts of men or are published through revelation. In the former case, interpretation uses demonstrations. In the latter, interpretation makes use of conjectures or probable arguments.

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      §6. Either interpretation rests on certain rules and axioms, which are derived from first principles.

      §7. First principles, however, are propositions formed by the intellect, beyond which the intellect cannot go in its reasoning.

      §8. For since the intellect of man is finite, it cannot in its demonstrations ascend to the infinite, but is forced to stop at some point.

      §9. According to the difference between theoretical and practical intellectual faculties [habitus], however, the first principles are divided into theoretical and practical.

      §10. Many have written a lot on the theoretical principles. The practical have clearly been neglected, or taught in a confused fashion, or are even now sought for laboriously.

      §11. Our only aim, after the glory of God, is the zeal for truth, and so we will contemplate the matter objectively, as it is, without looking for approval from anyone or flattering anyone, because we will not slavishly follow any particular author. Nor will we fear anybody’s hate, because we will not mention those we disagree with, nor will we fight with insults, but by reasoning.

      §12. But we shall have to examine the matter in a little more depth. I presuppose (1) that the intellect, whichever way you define it, is one thing, and that the theoretical and practical intellects in reality are identical.

      §13. (2) Our intellect either contemplates the essence of things, or their nature, character, accidents, or whatever you want to call this, or it contemplates the proper actions of humans.

      §14. (3) All things are distinct from each other, but there are also shared characteristics, so that there is no being which does not have something in common with another in relation to a third term.

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      §15. (4) When the intellect, therefore, contemplates the nature of things, it either contemplates their shared characteristics or their differences. Thus, every definition is based on this twofold concept, that is, of similarity in the genus and dissimilarity in the specific difference.

      §16. (5) He who is able to draw out the similarities of things is said to have a powerful mind; he who accurately discerns differences has judgment.

      §17. (6) Moreover, by contemplating the essence of things and their nature the intellect either conceives them as they really are or combines them with each other by some fiction, as they are not. And this act of the intellect is called imagination.

      §18. By comparing all those things we have surveyed so far with each other we arrive at the supreme and first proposition, that is, the one to which all others can be referred, but which itself cannot be derived by means of demonstrative proof: anything either is or is not. Or, it is impossible for something to be and not to be at the same time. Or finally, mutually contradictory things cannot be true simultaneously. For these all mean the same. And this is generally called the first theoretical principle.

      §19. Among those things, however, that are proper subjects for contemplation, man also finds himself. And when he contemplates his nature he sees that he was created not only for the sake of speculation, but for action as well.

      §20. But when he compares his actions with his essence, he realizes that his nature does not allow him to be free of law and to regulate his actions without any norm.

      §21. From this follows the definition of law. It also leads to the concept of a ruler and that of СКАЧАТЬ