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

all the more our beatitude which we receive from the revelation of the divine word and can judge on good and evil all the better. For this reason we also believe the law of God and nature exists in order to discipline us, to direct us to Christ. Thus we do not only realize our faults and errors more readily, but also live all the more in a holy and just manner, because we are bound to it with twofold, even threefold ties. For we are under an obligation to do what is right, on the basis of nature and reason insofar as we are human beings and inhabitants of this world, on the basis of the laws of the magistrate insofar as we are citizens and members of our fatherland, and on the basis of God’s word insofar as we are believers and Christians. (2) that God’s word may not be accepted by all nations, and our civil and territorial law is even less accepted by strangers, but the rules and general reasons of natural right are valid in all human affairs. Even infidels or those outside the church, that is, those who are strangers and not subject to our government, must conform to these, since they must understand and allow themselves to be guided by the teachings of nature and reason, right and wrong, especially in matters of peace and war and in commerce and trade, even though

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      they neither respect nor recognize either the foundations of our religion or our civil laws.

      Furthermore, Boecler in the Prolegomena to Grotius’s On the Rights of War and Peace¹⁰² pointed out that according to the most ancient philosophers the origin of law and justice had to be derived from the principle of sociality. Mr. Schilter proves this opinion in his Philosophy of Law, chapter 3, §6, page 84.¹⁰³ Add Augustine, On the City of God, book 19, chapters 5, 13, and 14.

      §54. So far I have supported those opinions that might seem either doubtful or ambiguous in the first part of the Institutes. In the remaining two books this sort of explanation did not seem necessary because there I put forward what I meant in a little more detail in order to avoid obscurity. But you should not think that I defend my opinions out of sheer pertinacity and a perverse, instinctive self-love, rather than a desire to find out the truth. And in order to set you an example to follow, and so that you do not think it shameful to abandon your previous opinion after you have been taught something better, I will also indicate some passages which I later believed required some correction. I have already pointed out most of these in the discourse itself. In chapter 1, §53, page 18, the last words are to be deleted: “although the locomotive power of beasts differs from this, since it is devoid of thought.” In the same chapter 1, §75 as a whole is to be corrected as follows: The actions somebody performs under the influence of great fear, such as a promise, are sometimes imputed and sometimes not imputed, whether the action is contrary to the laws or not. This will become clear from the full discussion in the chapter on the duty of man concerning promises. In chapter 2, §116, you should correct the words contained there as follows: “Moreover we believe that the use of this distinction is adequate, because affirmative precepts of divine law always allow for an exception in cases of supreme necessity, while negative precepts do not.” In the same chapter the paragraphs 127, 128, 129, and 130 should

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      be deleted. In chapter 4, §59, write as follows: “And to be precise, the pleasure of the senses will be very rare and practically nonexistent outside society”; and remove the subsequent words of this paragraph, “Through induction …” until the end. In book II, chapter 1, §164, following the words: “I do not think so,” put these in their place after deleting the others: “For the law of nature, which forbids killing a person, has itself a tacit exception of necessity, whenever this does not principally have the violation of the law as its object and there is no means of evading it by a natural instinct, as is explained in the examples listed.” Thus, the later paragraphs 165, 166, 167, 168, 169, 170, 171, 172, and 173 should be removed.¹⁰⁴

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BOOK I

CHAPTER I

       On Jurisprudence in General

      §1. The term jurisprudence involves two concepts, prudence and right [jus].

      §2. There is no better way for us to understand prudence than by going over the different faculties [habitus]¹ in a little more detail.

      §3. A faculty is either infused, that is, one which man possesses without previous knowledge, or acquired, for which labor and effort are necessary.

      §4. The acquired is gained either through supernatural or through natural powers.

      §5. The faculty which is acquired through natural powers is either intellectual, if it is based in the intellect and is acquired through acts of the intellect, that is, affirmation and denial, or it is voluntary, if it is based in

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      the will and is acquired through acts of the will, that is, the desire for or aversion to something.²

      §6. The intellectual faculty has as its object either principles, which may be theoretical or practical, in which case it is called understanding, or conclusions from these.

      §7. In the latter case, concerning conclusions, this faculty is either theoretical and aims to understand the creator and creation, or practical and aims to understand human actions.

      §8. The theoretical has as its subject either being as such and is called ontology (nowadays usually metaphysics), or certain species of being.

      §9. And this ontology either considers the creator—this is called wisdom [sapientia], and once used to be called metaphysics, but today is termed the first part of pneumatics —or it considers corporeal creatures and is called science.

      §10. Science, however, examines corporeal creatures either with respect to their essence and qualities, which is what physics does, or with respect to quantity, which is the subject of mathematics.

      §11. We now turn to the practical faculty. Its synonym is prudence, which takes on different names according to the diversity of human activities. If these actions are those of people living in a civil society, it is called political prudence; if they are the actions of those living in domestic society, it is called economic prudence.

      §12. Each of the two is concerned with future and past actions. The former is advisory in a broad sense; the latter is judicial in the broadest sense.

      §13. Advisory prudence is occupied either with one’s own actions or with those of others.

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      §14. And it is occupied with the actions of superiors, or equals, or inferiors.

      §15. The last of these is given the special name legislative prudence, which is the noblest part of jurisprudence in a broad sense. The other forms retain the title of advisory prudence, and that part which advises the superior in legislating or acting according to the norm of the divine laws is the other part of jurisprudence in the broad sense.

      §16. Moreover, the actions of men, both future and past, are honest, that is, they conform to a law and are predicated of man insofar as he is rational; or they are pleasant, that is, they delight the external senses and concern man considered as an animal; or they are useful, that is, they are directed to the preservation of the individual. In the last case man is considered as a living physical being.

      §17. That prudence which