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

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СКАЧАТЬ better. Apart from that, he warned me to beware of the heterodox opinions of Grotius, and at the same time introduced me to the moral philosophy of the Scholastics.

      §6. Then appeared the books on the law of nature and nations by the illustrious and incomparable Samuel Pufendorf.⁶ I read these avidly, not only because his Elements⁷ had given me a certain foretaste, though I had only inspected them cursorily, but also because I was very taken by his clear and perspicuous style. I noticed there that most of the subjects which Grotius had neglected were explained very lucidly, and that he also clarified many of Grotius’s more obscure passages. And yet, I was not pleased with some of his opinions which contradicted the common belief in God’s eternal law, its conformity to divine sanctity, the existence of a standard of morality prior to the divine will, and similar matters. At that time I did not know how to separate theological questions from philosophical ones, and there was nobody who could teach me these things. I had also realized that in Osiander’s commentary on Grotius⁸ and especially in another

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      book by that author titled Typum legis naturae⁹ these doctrines were defended strenuously. Thus I thought that he who even dared to doubt their truth was in danger of eternal damnation. Although it was not clear to me how Pufendorf’s objections could be met, and the replies of the learned, with whom I discussed this when there was an opportunity to do so, were entirely unsatisfactory, nevertheless the authority of so many venerable men prevailed. I therefore blamed the dullness of my own mind, rather than suspecting there to be anything wrong with the common doctrine.

      §7. In the meantime my love of natural law had led me, with the consent of my father, to choose jurisprudence among the three higher faculties. My intention was to remedy the shortcomings of philosophy in that area [i.e., natural law]. For among other things, the commentary of the learned Boecler on Grotius¹⁰ showed that they who attempted to define and explain natural law without jurisprudence found it very difficult to do so only on the basis of the philosophy that is taught at the universities. Thus, I developed a basic understanding of it as well as I could and, since I had no guide who prescribed a method to me, I did the usual thing and listened now to one person, now to another, and thus acquired some understanding of it, which was, however, confused, fragmented, and incoherent, rather than true wisdom. Matters did not improve when I was sent by my family to Frankfurt an der Oder to complete my study of jurisprudence. This was not the fault of my teachers, who were excellent men and each of whom was highly deserving of praise. It was rather the widespread method of learning, according to which young students were usually taught by several doctors, who often disagreed among each other and drew on diverse principles. This was hardly suitable for producing anything solid. Also, as tends to happen, friends and conversations with fellow students wasted many hours which could have been spent on studies and attending lectures.

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      §8. I rapidly became aware of this, however, and, putting that common proverb “we learn by teaching” into practice, I tried to fill the gaps and connect my different studies, which had often been interrupted. Thus, once I had graciously been granted a license to teach by the university authorities, I lectured a little on the Institutes of Justinian¹¹ to some of my fellow students. To others I explained the questions of Jan Klenck on the books of Grotius¹² in order to make an attempt at understanding this most noble discipline, to see what I could manage and what progress I would make by reading Grotius and Pufendorf.

      §9. Until then I had been an assiduous defender of the doctrines of the Moralists,¹³ and though in all other respects I liked Pufendorf very much, I set aside those aspects that were considered heterodox. In this opinion I was strongly confirmed by the “index of novelties,” a highly dangerous document, especially as it was received with applause by numerous people.¹⁴ There were further writings like this, which attacked Pufendorf as a common enemy. I was extremely pleased about their appearance, because I hoped that I would be able to learn from them how to reply to Pufendorf’s arguments. I noticed many arguments which begged the principle or were circular, yet I selected some with which I believed I would be able to strike or avert the blows for the sake of the common cause. I profusely thanked those authors, who were inspired by the love of orthodox truth to take up arms; and at the same time the multitude of syllogisms, which were often prolix and difficult to understand, excited my admiration. I believed that if Pufendorf were confronted with these arguments he would succumb to their enormous weight, and would not even dare to open his mouth to contradict such great men.

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      §10. I was, however, mistaken, for soon afterward the apologia of Pufendorf became available to us.¹⁵ When I read this I sensed that my weapons were inadequate to ward off his blow. At about that time I was beginning to dispel some of the clouds which had until then shrouded my understanding. For I had previously imagined that everything defended by the common opinion of the theologians was a proper part of theology, and that a good man should beware of listening to any heretic or innovator, two terms which were considered synonymous at the time. Yet, more careful meditation on the difference between theology and philosophy and a more diligent examination of the writings of authors on politics and public law had taught me that many views were upheld by the unanimous opinion of theologians and were generally held to be theological matters, although they did not belong to theology but to moral philosophy or jurisprudence. This was so because philosophers were content with their Aristotelian catalogue of eleven virtues and jurists with their glossators and so gave the theologians, first the papal theologians and then ours, the opportunity to seize the noblest part of wisdom, which was neglected and without a guide. This scrutiny had also taught me that the power to declare someone a heretic did not pertain to private persons, even though they might enjoy a lot of authority, but to the prince. And finally, it had taught me that the accusation of heresy did not necessarily imply the crime of heresy, and that this and the term heretic were very widely abused. I saw, however, that Pufendorf had demonstrated precisely these opinions to his adversaries and that their hopes of victory had rested to no very little degree on their erroneous principles.

      §11. Thus I began to doubt the moral doctrines of the Scholastics. For I had never been disposed to adhere to preconceived opinions so rigidly that I could not be torn away from them when the truth became evident. I saw more than once my father setting a laudable example by abandoning his earlier opinions, if the following day showed him something else to be

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      closer to the truth. But what had held me up in my pursuit of the truth had been above all the education in sectarian philosophy and the vain and unjust fear of suffering from a bad reputation if I diverged from the common opinion. When I noticed, therefore, that my judgment had gradually matured, and I reminded myself that I was a rational being like other humans, I became aware at the same time that I was sinning against the benignity of the Creator if I allowed myself to be led wherever it pleased others, like cattle wearing a muzzle. Therefore I closed the eyes of the mind, so that the brightness of human authority would not blind them, and cast aside all consideration of who or how great a person had written what I was reading. I examined only the arguments on either side and considered what this person asserted, that person criticized, another proved, and yet another replied. But above all I firmly impressed on myself the state of the controversy and noted how tenacious one person was, how another twisted and turned like an eel in order to elude his adversary and confuse him, until I concluded that I had to unlearn a lot and sensed that I had known nothing and that my knowledge was nothing but a confused chaos and a heap of many things, which were mixed with each other without any order.

      §12. But when I had thought about this carefully and managed to reduce the chaos to some order, I unintentionally became a deserter, in the sense of someone who having fled from a tyrant invading the liberty of a commonwealth takes up arms in defence of liberty against this tyrant. For clear reasons had triumphed over the otiose subtleties of scholastic moral philosophy. I was also СКАЧАТЬ