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

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СКАЧАТЬ reasons than the authors of opinions. I demonstrated the sources and the origin or occasion of doctrines and the connection of conclusions with the first principles, which varied according to different hypotheses, and I took great care that in my hypotheses (mine, however, were those on which Pufendorf himself had constructed his discipline) I always proved my assertions through necessary inferences from the first practical principle, which had previously been demonstrated according to analytical rules. Then I turned to Pufendorf’s text and, following his method step by step, never ceased to recall the hypotheses of either side to you in the particular controversies and to show the connection of even the remote conclusions with them. Sometimes, though rarely, I even indicated how the difficulties of contrary opinions could be avoided

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      by other means, or which weighty reason drove me to make use of my liberty and, resting on common hypotheses, to incline toward an opinion different from that of Pufendorf.

      §19. I did not write down what I had discussed but communicated to you whatever the memory of my meditations before the individual lectures suggested to me. And as I saw some of you avidly taking notes on my lectures, I hoped that it would be possible for me to ask you for them, so that I would be able to refresh my memory later. But this did not really work. For after comparing three or four examples of your efforts with each other, I observed that few of you had fully understood my arguments, and some, whose miserable condition and lack of judgment I greatly deplored, had attributed fictitious opinions to me and very often combined contradictory opinions in one sentence. I therefore pondered how I could remedy this defect in future and assist your understanding of the material.

      §20. I had also noted already some time before that in the common division of divine laws into moral, ceremonial, and forensic, the term moral laws usually mixed divine natural law and divine positive universal law with each other, as if moral law and natural law were synonyms, and as if there were no other kind of divine positive law than the ceremonial and the forensic. Yet, in the absence of some universal law which is also positive, it would be necessary either pitifully to abandon the orthodox opinions on the turpitude of polygamy and the prohibition of incest, etc., in the face of their adversaries, or to abstain from a decision of these very grave and important controversies. And while Hugo Grotius explained this distinction within divine law clearly enough, he not only mixed several errors into his statement on universal positive law, but in some cases also confused this law with natural law. Among our people, however, as far as the gentlemen in theology are concerned, I have noticed no one who has properly set out this distinction between natural law and universal positive law, or who has explained universal positive law appropriately and said which principles were relevant here, even though I went through very many authors, especially modern ones, who published works on moral theology. As far as the jurists are concerned, there is a complete silence on

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      this matter among them, with the exception of the most learned Kulpis in his Collegium Grotianum.²⁰ There he examines the question of polygamy and promises to show in a separate treatise that there is such a universal positive law [against polygamy]. I eagerly awaited this treatise, since I hoped for many erudite insights from this famous man on the basis of my reading of his precise Collegium Grotianum, insights which could have illuminated me or helped me a lot in my meditations on this divine positive law. This most noble man, however, delayed fulfilling his promise, no doubt because of the pressure of other urgent business, and so I thought that I would not be committing a sin if I dared to drag this universal positive law, if not from darkness, at least from twilight, even though I am neither a theologian nor a jurist; I am, however, wholly devoted to divine laws and jurisprudence. I do this in the hope that, even if I do not present everything completely accurately, other equitable people will draw on my attempts and use them to examine more accurately this difficult subject, which is worthy of both theologians and jurists in equal measure.

      §21. Hence, as some of you asked me last year to repeat the course on natural law, and to communicate to them in writing in individual points what I had previously taught to others orally about the confirmation of Pufendorf’s hypotheses, and about my observations on the little book by Pufendorf On the Duty of Man and Citizen, I then took the opportunity and began to work on the present Institutes of Divine Jurisprudence. My aim was twofold: first, after presenting the general principles of jurisprudence, to explain the controversies over Pufendorf’s hypotheses, according to the method which I thought most suitable for you, and to defend these hypotheses as if they were my own, and to show clearly in chapters on the single natural law the connection of the conclusions with the hypotheses and first practical principles, according to Pufendorf’s opinion and rarely according to my own, and so to give you some introduction to reading the well-developed and learned work by this illustrious man Of the Law of

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      Nature and Nations and profiting from it, so that his adversaries and their writings can no longer cause you difficulties. Second, the aim is to show more distinctly the differences between universal positive law and natural law, and to illustrate the precepts of the former, insofar as their interpretation pertains to jurisprudence, concerning the doctrine on marriage and the chapter on punishments.

      §22. Above all, it seemed necessary to me to reason consistently and to quote no authors, especially no modern authors, in the text, not even the great Pufendorf himself. For I knew well how preconceived opinions have the habit of becoming an obstacle in the acquisition of truth, and among these opinions none does more harm than the prejudice in favor of established authority. I therefore thought that it would be very useful for you if I abolished this prejudice to make sure that you did not ignore the arguments of Pufendorf’s adversaries just because Pufendorf’s authority had already inclined you toward his opinion; alternatively, if these [arguments of the adversaries] should prove attractive, you might block the well-argued responses and reasons based on human nature. Moreover, I wanted to stimulate your industry and persuade you to read Pufendorf’s work carefully, in the belief that if I did not quote passages, you yourself would read it with all the more care and would compare it with my Institutes. And since I often had to depart from the common opinion of great men, or from the opinion of a particular man of great authority, and it was yet my intention to inquire into unadorned truth, without regard to persons, and to struggle with opinions, not people, I did not want to detract from the reverence owed to the people with whom I disagree by referring to them.

      §23. As far as other methods of teaching are concerned, I know that much is said in schools concerning the synthetic and the analytic methods, but these debates are otiose rather than useful. I believe there is only one good method, that is, to progress from the easier to the more difficult, from the known to the unknown, and that everything else depends on each individual’s judgment. It is correct to say that method must be a matter of individual judgment. And since all our erudition consists of the science

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      of demonstrating true propositions and showing the connection between them and since the truth of propositions presupposes knowledge of the terms, it seems impossible to deny that the most natural method is the so-called mathematical one, which progresses from definitions to axioms and develops observations from them. Pufendorf arranged his Elementa according to that method. But each proposition has only two terms, and it would therefore be tedious if the definitions of all terms are listed in a continuous series, and it seems that the connection between the different propositions could not be shown very clearly if many axioms were presented successively. I believed, therefore, that I would best be able to avoid these two disadvantages if I mixed definitions and axioms and prefaced the individual propositions with definitions of the subject and the predicate, or added these definitions immediately after the proposition, and if I clearly linked the axioms themselves by starting from some first principle and deriving everything else from that by way of conclusions.

      §24. I have divided СКАЧАТЬ