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

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СКАЧАТЬ natural jurisprudence toward this greater emphasis on the passions and the broader development of moral thought in early-eighteenth-century Europe. A member of the St. Petersburg academy of sciences, Frédéric-Henri Strube de Piermont, commented that natural law was based on “the passions insofar as they conform to nature.”⁵¹

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      There is a very similar emphasis on passions and sentiments in the moral philosophical literature of the Scottish Enlightenment, ranging from Francis Hutcheson’s Essay on the Nature and Conduct of the Passions and Affections (1728) to David Hume’s Treatise of Human Nature (1739–40) and Adam Smith’s Theory of Moral Sentiments (1759). Thomasius does not seem to have directly influenced these later debates in the Scottish Enlightenment; the similarities are, however, remarkable, and they strongly suggest that the changes in Thomasius’s natural law theory between the Institutes and the Foundations exemplify a more general development in the natural jurisprudence of the early European Enlightenments: a transition from a focus on laws and commands, which had been characteristic of Pufendorf’s voluntarist natural jurisprudence, to a moral psychological emphasis on passions and sentiments as the true springs of virtue.

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NOTE ON THE TEXT

      The translation of the Institutes is based on the 1688 Leipzig Latin edition. The translation was then compared to the seventh Latin edition of 1730 (reprinted by Scientia Verlag, Aalen, in 1994) and the contemporary German translation (not by Thomasius himself) of 1709, reprinted by Olms Verlag, Hildesheim, in 2001. The translation of the chapters from the Foundations is based on the text of the first Latin edition of 1705. The fourth Latin edition, published in 1718 and reprinted by Scientia Verlag, Aalen, in 1979, has also been used. This later Latin edition contains some additions to the 1705 text, which have not been included in the translation, though some of the information in the additions has been incorporated into the footnotes. The translation was then checked against the contemporary German translation of 1709 (reprinted by Olms Verlag in 2003). The aim here has been to produce a usable and accessible text, not a full critical edition; the few significant discrepancies between the different editions used for translation have been pointed out in the footnotes. Complete reference information is given in the bibliography.

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ACKNOWLEDGMENTS

      I am especially grateful to Knud Haakonssen for inviting me to contribute this translation and edition to the Natural Law and Enlightenment Classics series. I should also like to thank Michael Lurie in Edinburgh for helping me to identify the sources of some Latin quotations. Finally, I should also like to record my gratitude to Diana Francoeur and her colleagues at Liberty Fund for their superb work in preparing the manuscript for publication.

      Some final changes to the text were made during a period of research at the Institute for Advanced Study in Princeton in 2010–11. My membership at the Institute was funded by Rosanna and Charles Jaffin, Friends of the Institute for Advanced Study, and the Herodotus Fund. I am deeply grateful for their support. Any inaccuracies or other shortcomings that remain are my responsibility.

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INSTITUTES OF DIVINE JURISPRUDENCE

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Introductory Dissertation, Addressed to My Audience

      §1. It is customary for the authors of books to preface the treatises they publish with a discourse in which they either recommend the work or discuss various other matters for the reader. I will not inquire here whether these discourses are useful or irrelevant, nor am I concerned with their title, whether they are more properly called a prooemium, a praefatio, or an antefatio, which is a term I have seen some people prefer. I believe that this should be left to the judgment of each individual and that the common proverb “everybody prefers his own way” is very appropriate here.

      §2. I have various reasons for prefacing my Institutes with an introductory dissertation. First, I want you to have a clearer idea of my intention; second, I want to defend myself against the accusation of literary plagiarism and render the authors I have used in this work their proper due; third, to clarify certain opinions, which have been expressed a little obscurely and could expose me to slander, and to fortify them against objections; and finally, to say something about amendments to some passages.

      §3. But I address you, my beloved audience, not only because I produced these Institutes of public law for your sake, and it is thus your immediate concern to know what is relevant to understanding them. It also seemed to some extent to be in my interest to justify my teaching and my studies to you, you whose fees and love by the grace of God sustain me, and who have encouraged me to be diligent and to contemplate true philosophy, since I had no opportunity to abuse public funds in order to

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      be lazy or to profess a false wisdom, which rests on authority rather than reason.¹

      §4. So, I would have wasted my time and my efforts, if I had seized my quill to refute those who examine my writings insidiously and anxiously, not for the sake of learning, but with the intention of putting obstacles in the way of my honest endeavors, and of ensnaring my words. Yet I live under an obligation to those people who are free from passion when they read my Institutes or the present dissertation and believe that I, too, can put forward opinions which may not always and directly discover the truth, but which can nevertheless be of some use in inquiring about it and finding it, and who believe that one should not ask who says something, but what is said, and that often even the vegetable gardener makes appropriate comments.

      §5. Thus, when I moved from school to university, I did not immediately enter one of the higher faculties, as our young people, unfortunately, often do. Instead, I first spent a number of years studying philosophy.² There I had the opportunity to hear my blessed father³ lecturing on Grotius’s books On the Rights of War and Peace; and even though I did not understand very much at that time, nevertheless the dignity and elegance of the doctrine captivated me. Soon I was seriously devoting myself to understanding it better than others and of absorbing it into my very flesh and blood. I also remembered that my father had in his lectures often referred his audience to the theologians, who drew attention to Grotius’s errors in religion, and to the jurists. It was to the latter that Grotius’s work was mainly relevant. My father himself declared in his prolegomena that he had chosen this treatise to support the noblest part of jurisprudence.

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      I therefore thought it necessary in my private studies to add two of Grotius’s commentators to my reading of him. One of them is a jurist, who is very learned in divine and human affairs and is the ornament of the University of Wittenberg, Caspar Ziegler;⁴ the other is a theologian in Tübingen, whose many publications have made him well known, Johann Adam Osiander.⁵ Of these two the first dispelled in short but succinct observations on Grotius the clouds of obscurity on many points. The other has repeated most of what Ziegler has said, even though he does not mention him, thereby helping СКАЧАТЬ