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

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СКАЧАТЬ longer taking the side of those who had been full of boasts as long as there was no enemy and had been the first or among the first to sound the signal for battle, but, when their veterans had at their encouragement attacked the enemy and perished miserably, and they themselves had been honestly summoned to battle and had been challenged several times, hid behind their walls and thus indicated either their fearfulness or the injustice of their cause. Finally I was horrified, because I saw that egregious injustices were committed under the pretence of Christian benediction by some whose duty it was to guide the flock of Christians. They interfered in battle, without being called to it or being equipped with appropriate arms, and, like blindfolded

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      gladiators, cut down anything which they encountered. I also noticed that they could not bear it if the smallest word of theirs had been ignored, as if a minister of the word enjoyed a privilege of inflicting injury and as if their holy office gave them immunity against enemies and allowed them [the ministers] to betray their office and provoke these enemies without a reason. Then I remembered a story which I had read, I know not where, of a beggar who had visited a bishop and had first asked for substantial alms; when these were denied he asked for a smaller amount, and when he failed to obtain these he asked for a very small amount. When all his requests had been in vain, he asked for a benediction. The bishop gave him that. The beggar, however, returned it to the bishop, saying that his benediction was not worth a penny, since he could not obtain a penny from the bishop before, in spite of his persistent requests.

      §13. From this time on, after shaking off the yoke of sectarian philosophy, I took great care to preserve the liberty I had once acquired. Thus, even though I did not consider it unbecoming to struggle for truth under an illustrious leader, even in the last ranks, I always acknowledged him as a leader, not as a ruler, although a good leader differs little from a ruler, insofar as he diverges from the truth only very rarely and then only unintentionally. Although I thought at first that once I had reduced the doctrine to some system I would be able to keep it forever, I sensed that like any other person who reduces a confused heap of things to a particular order, I too had to correct the order several times and improve it. For I continually detected new errors to be corrected, which are just an indication of human weakness.

      §14. In the meantime I perceived the rich fruits of cultivating such a noble doctrine. I ceased teaching it for a while, as soon as I sensed that the ideas I had previously believed rather than understood did not cohere with each other. Yet, when I returned home and there, having shaken off the original torpor, simultaneously devoted my efforts to civil jurisprudence, I noticed while I was teaching that with the help of natural jurisprudence I was able to explain the Pandects quite adequately. This was so although I had never previously studied them in their entirety. And, apart from other matters,

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      if there were any laws which contradicted natural jurisprudence, I tried in the preparation to see whether I could find a means of reconciling these with each other using the rules of sound interpretation drawn from Grotius and Pufendorf. I then consulted other authors and if I found them agreeing with me I was confirmed in my opinion; if they disagreed I compared them with my exposition and with each other and again applied these same rules of interpretation, always banishing the prejudice in favor of authority. Thus, I sometimes rejected a solution even if it stemmed from Bachovius¹⁶ and approved another, even if it was by Manzius.¹⁷

      §15. Natural jurisprudence, however, helped me not only in the theoretical interpretation of laws. When I turned to legal practice, to try to apply law to individual facts (without which theory is a cadaver destitute of a soul), I became aware that it was of even more use, since very often the infinite variety of circumstances, which characterizes matters of civil law, produces a case and a situation which is either not covered by civil laws at all or to which several conflicting laws apply. Thus, if someone cannot draw on common principles or the rules of extending or restricting laws, he must often laboriously use the many myriads of advisers, respondents, and people who make decisions, from Germany, France, Italy, Spain, and almost the entire world, until he finds a case at the very end, as they say.¹⁸ And even then, when an appropriate case has been found, it is still unclear whether the judges to whom the decision of the case pertains favor the same opinion as the author of the decision. He who provides a good definition of the general foundations of law inscribed on the hearts of humans can easily master this Herculean labor. At the same time he can easily avoid this danger by other means which we shall not discuss here.

      §16. Yet, after a few years I withdrew from legal practice, since I believed that I had done my part in scrutinizing the application of civil law to the

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      affairs of humans and the benefits and disadvantages of legal practice. I also knew that man was meant for civil life rather than a solitary life, and that jurists in particular had the hope, held out to them as a prize, that once they had studied Roman law and acquired experience in legal practice they would be promoted to high offices in the commonwealth. And yet I felt there to be as great a difference between the law court and the court of the prince as that between night and day. For even if I leave aside countless other matters which I could mention here, one needs a mind willing to suffer mob rule to bear patiently the tedium of the law court; but since I did not find this quality in myself (since though I very gladly bear all burdens imposed by the prince, God’s representative on earth, I am a little less patient when it comes to putting up with the tedious affairs of the general population) I sought leisure in domestic study which would bring with it the tranquillity I was hoping for. And since I was persuaded that my thoughts were now in such an order that young students would benefit from having those thoughts communicated to them, and since some asked me for my opinions, I began to devote myself to you, my dearest listeners.

      §17. Above all I made an effort to restore the universal foundations of law, derived from natural law, which students at this university have neglected for long enough. Nor were my efforts without success, thanks to the help of God. I first lectured on this most useful doctrine, according to the work of Hugo Grotius, seven years ago. Your attendance in large numbers, which I had not expected, encouraged me. But immediately after finishing the first book, you left me alone with Grotius, although I had had a full room the day before. The fear of the plague had driven you away from Leipzig. I had almost despaired (such little confidence do the minds of humans have in divine benevolence) of having another opportunity of this kind; but once the situation had improved and you returned to me without fear, I picked up the thread which had been interrupted for two years. You then attended my lessons diligently until I finally completed the task with the help of God. I then compared Grotius with Pufendorf and with all of his commentators, always following the principle of the freedom of philosophizing by adding my opinion whenever there was a controversial

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      matter. But above all I tried to clarify the ambiguities in Grotius’s text and not to leave aside a single word which could occasion obscurity.

      §18. My doctrine had not displeased you, just as your diligence could not but please me. Soon after I had completed the course on Grotius there were some who desired a repetition. I agreed, but instead of the work by Grotius I proposed that most elegant little book by Pufendorf On the Duty of Man and Citizen.¹⁹ Apart from other reasons, you yourselves realized how many hours were previously devoted to the investigation of the ideas of Grotius—time we could save by looking at a perspicuous author and which we could direct to more useful ends. Yet, because you demanded a fuller history and knowledge of the principles for which this illustrious man has been criticized and still is being criticized, I began with a more elaborate discussion of these same matters over the course of several months and presented them for teaching purposes as a consideration of jurisprudence in general. I acted openly toward you and sincerely: I put forward arguments on both sides of the controversy, and before I submitted my resolution, I took first this side, then that, in order to accustom you to paying СКАЧАТЬ