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

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СКАЧАТЬ books. In the first of them I have presented a definition of divine jurisprudence and the doctrine of the first practical principle, as well as the first principle of natural law and universal divine positive law. To that I have added a proof that the duty of man toward God is not part of divine jurisprudence. In the second book I list the precepts of natural law that concern humans living in any kind of society. In the third, however, I list those precepts of natural law which direct the duties of man with respect to particular societies, that is, conjugal, paternal, domestic, civil, those based on treaties, and the society of nations. The beginnings of the chapters will show their connection with each other, and in the second and third books I mostly followed the order adopted by Pufendorf in his book On the Duty of Man and Citizen. I say mostly, for a look at these will easily show what I have changed here and there.

      §25. Since I had Pufendorf’s work and the other writings published in his defense in mind throughout the Institutes, you will not be surprised at finding that often entire points have been borrowed from him and have not been changed by a single word. For my project, which I have explained

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      to you, required me to do so. But there are in these Institutes some arguments of my own, which I continually mixed with the ideas of others. Thus, inevitably the incomparable man himself was linked to me without his intending to be. I do not know whether he will accept this with equanimity. He may rather desire his possessions to be clearly separated from mine. Yet he will not need to do so, since I am prepared, without the intervention of a judge, to divide my Institutes so that I leave to him only what is well said, even if it is mine, because his writings and hypotheses led me to investigate them. Those arguments, however, that are found to be incoherent and improper I shall take upon myself.

      §26. Yet I will happily admit that I have sometimes borrowed the ideas of other learned men to whom must be rendered what is due to them, and I must indicate to you those authors whom you should add to the reading of my Institutes. For book 2, chapters 6, 7, and 8, I carefully examined Uffelmann’s Treatise on the Obligation of Man, which is the result of an oration that was held not many years ago in the Academia Julia;²¹ from this I transferred to chapter 6, “On the Duty of Persons Forming an Agreement,” §64, some arguments criticizing Pufendorf’s opinion on the lack of obligation in an agreement with highwaymen. In the following passages, however, I have showed how easy it is to defend Pufendorf’s opinion. But in chapter 7, “On the Duty of Man Concerning Speech,” and similarly in chapter 8, “On the Duty of Those Taking an Oath,” I have adopted many arguments from the said book by Uffelmann, though I reserved the freedom of presenting them differently and disagreeing with them. In the final chapter of the same book, “On the Interpretation of Divine and Human Will,” I also found most helpful the very accurate discussion of the interpretation of obscure law which was publicly presented under the most learned Rebhahn as praeses at the Academy in Strasbourg in 1671.²² In book 3, in the second chapter on the duties in marriage, an

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      occasion for more profound meditation was often provided by the studies of Lambert Velthuysen on natural modesty and human dignity and on the principles of justice and propriety. These treatises are to be found in his works, published in 1680 in Rotterdam.²³ These are to be compared especially with my comments in the said chapter 2, §153 following. The third chapter of book 3 was based on my recollection of the famous controversies which were conducted in the writings of various people concerning divine law on conjugal duties, that is, on polygamy, the works of Sincerus Warenberg, Theophilus Alethaeus, Athanasius Vincentius, and Daphnaeus Arcuarius, who wrote in favor of polygamy; for writings against polygamy, see Musaeus, Christian Vigilis, Sluter, Feltmann, Brunsmann, Diecmann, etc.²⁴ For the various legal opinions concerning the marriage of eunuchs, see the collection published by Hieronymus Delphinus two

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      years ago;²⁵ on divorces, see Selden The Jewish Wife, book 3, chapter 18 and the following chapters,²⁶ and Strauchius in the fragment on the Institutes of Public Law, title 35;²⁷ on incest with the sister of the deceased wife, see the work by Havemann, Tabor, Strauchius, Buchholz, and the editor of the Acta Oettingensia; there are also works by Samuel Bohlius and his adversaries on the incest of stepchildren, etc.²⁸ My blessed father’s disputation on paternal power needs to be read together with the fourth chapter of the third book §§14ff., because there I intended to defend the opinion of my father that paternal society cannot be derived from consent. Chapters 9 and 10, on the duties toward legates and toward the dead, should be compared with Grotius, book 2, chapters 18 and 19, and his commentators, and with my father’s disputation on the inviolability of legates.²⁹

      §27. I believed at first that my good intentions, which I have just explained to you, would be treated fairly by all those who love studies and good scholarship and seek the truth. Yet I realized that I lived in a century in which there were not a few to be found who considered it their duty to obstruct free philosophical argument, to build walls and throw up barriers, to enclose it within limits which no human prudence could tear down, because they sensed quite rightly that this liberty of philosophical

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      argument severely damaged the authority of the sectarian philosophers. For at one time the lecterns of the philosophers were protected by the authority of Aristotle or of some similar member of the original wise men, such as Albert, Thomas, Scotus, etc.,³⁰ against those who philosophized freely. Now, however, the fortress of Aristotelianism has been taken, and so it seems there is a need for new trickery to defend the royal doctrines of the old masters. And since they do not have any real arguments with which to strengthen their fortress, they believe that their cause is advanced best if they persuade the people under the pretext of religion that, whatever they do, they act with God’s guidance and they struggle in defense of piety, and if they accuse their adversaries of being atheists, heretics, impious people, and careless innovators. Apparently they forget what the Apology for the Augsburg Confession, article 4, page 286, says about hypocrites, namely that they are guilty of impiety and of vices of all kinds far more than those they slander as impious.³¹

      §28. I was not surprised, therefore, when I heard at the time of the publication of my first book of these Institutes that various criticisms of it were disseminated in public. And, as you know, the common claim was that I had based it on principles, which led you to atheism, heterodoxy, and I know not what impiety, and which all smacked of some new-fangled philosophy which threatened the commonwealth. This calumny was so widespread that discussion of it was even common among women visiting those who were in childbed. But I derided this open slander with high-minded contempt, and although one of you then told me that there were a few who were planning to lay a trap for me in this affair, I was nevertheless calm in the midst of all the uproar and lived secure in my conscience concerning both my conduct and my opinion, since I knew well that I lived under the rule of a just prince who was able and willing to protect the innocent. I was not even curious to find out the author of this horrid calumny, just as I am not keen to know this now, but rather wish

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      sincerely that everything may turn out well for him, whoever it might be; for not only does Christianity order me to do so, but the zeal for sound philosophy to some degree tells me to, as do the examples of others who philosophize with moderation and without aggressiveness. Among these I mention above all René Descartes, whom the author of the first objections against his Meditations calls a hugely ingenious and very modest man.³² And indeed whenever I read the books by Gisbert Voetius, otherwise a man of great erudition, which he wrote against Descartes, and again compare the letter written in reply by Descartes to Voetius, I always have the impression (I am speaking of the style, not the subject matter) of two very dissimilar men, one of them a theologian, who is, however, not impartial and speaks badly of others, the other a СКАЧАТЬ