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Introductory Dissertation, Addressed to My Audience

§1. It is customary for the authors of books to preface the treatises they publish with a discourse in which they either recommend the work or discuss various other matters for the reader. I will not inquire here whether these discourses are useful or irrelevant, nor am I concerned with their title, whether they are more properly called a prooemium, a praefatio, or an antefatio, which is a term I have seen some people prefer. I believe that this should be left to the judgment of each individual and that the common proverb “everybody prefers his own way” is very appropriate here.

§2. I have various reasons for prefacing my Institutes with an introductory dissertation. First, I want you to have a clearer idea of my intention; second, I want to defend myself against the accusation of literary plagiarism and render the authors I have used in this work their proper due; third, to clarify certain opinions, which have been expressed a little obscurely and could expose me to slander, and to fortify them against objections; and finally, to say something about amendments to some passages.

§3. But I address you, my beloved audience, not only because I produced these Institutes of public law for your sake, and it is thus your immediate concern to know what is relevant to understanding them. It also seemed to some extent to be in my interest to justify my teaching and my studies to you, you whose fees and love by the grace of God sustain me, and who have encouraged me to be diligent and to contemplate true philosophy, since I had no opportunity to abuse public funds in order to

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be lazy or to profess a false wisdom, which rests on authority rather than reason.¹

§4. So, I would have wasted my time and my efforts, if I had seized my quill to refute those who examine my writings insidiously and anxiously, not for the sake of learning, but with the intention of putting obstacles in the way of my honest endeavors, and of ensnaring my words. Yet I live under an obligation to those people who are free from passion when they read my Institutes or the present dissertation and believe that I, too, can put forward opinions which may not always and directly discover the truth, but which can nevertheless be of some use in inquiring about it and finding it, and who believe that one should not ask who says something, but what is said, and that often even the vegetable gardener makes appropriate comments.

§5. Thus, when I moved from school to university, I did not immediately enter one of the higher faculties, as our young people, unfortunately, often do. Instead, I first spent a number of years studying philosophy.² There I had the opportunity to hear my blessed father³ lecturing on Grotius’s books On the Rights of War and Peace; and even though I did not understand very much at that time, nevertheless the dignity and elegance of the doctrine captivated me. Soon I was seriously devoting myself to understanding it better than others and of absorbing it into my very flesh and blood. I also remembered that my father had in his lectures often referred his audience to the theologians, who drew attention to Grotius’s errors in religion, and to the jurists. It was to the latter that Grotius’s work was mainly relevant. My father himself declared in his prolegomena that he had chosen this treatise to support the noblest part of jurisprudence.

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I therefore thought it necessary in my private studies to add two of Grotius’s commentators to my reading of him. One of them is a jurist, who is very learned in divine and human affairs and is the ornament of the University of Wittenberg, Caspar Ziegler;⁴ the other is a theologian in Tübingen, whose many publications have made him well known, Johann Adam Osiander.⁵ Of these two the first dispelled in short but succinct observations on Grotius the clouds of obscurity on many points. The other has repeated most of what Ziegler has said, even though he does not mention him, thereby helping me to memorize the arguments 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 ashamed of any 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 more attention to the 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 these Institutes into three 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 politic person, but one who is extremely peaceful and accepts most criticisms generously.³³

§29. Usually it is Zoilus and Momus³⁴ who come under attack in prefaces, even where there is no Momus. I too had an excellent opportunity to spit bile at the Zoiluses, if I had not always believed that such invectives were a sign of an unsound, or at least of an undisciplined, mind. Moreover, these calumnies directed against me soon vanished; lies cannot persist for long. They are like snowballs which can grow to an enormous size when they are formed by humans, but which are rapidly reduced to nothing once they are exposed to the rays of the sun. Finally there seemed to be no need for invective, since my Institutes are sold publicly and themselves refute this calumny. I submit these Institutes to the scrutiny of all the learned,

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but only those who are truly such, for I scorn the censure of the others, who have no learning or know nothing beyond school and the seven liberal arts, even though they are filled to the brim and swollen up with their faith in a false philosophy.

§30. Yet I believe it to be in your interest, my listeners, that you who are, so to speak, caught between both sides know what responses I would want to be given in these controversies, whenever these matters happen to come up in familiar conversation, as they do. However, I wish you could avoid these occasions as much as is possible and not provide an opportunity for these kinds of quarrels, since nothing is more pedantic and nothing renders humans less suitable for civil life than being a disputatious animal in daily conversation and being unable to tolerate dissenters; just as he on the other hand suffers from the same vice of pedantry who stands at the lectern set up for the sake of public disputation and will not tolerate objections which are put forward according to the rules of the art, but to which he cannot reply, and yet is too embarrassed to admit an error. But as it is not always in our power to avoid quarrels completely, even among those we are familiar with, or to avoid hearing the thoughtless comments of one or the other person, your basic interest and the need to prevent you from being confused about the ideas you received from me demand that I say a little more about this matter.

§31. Thus, as far as the vice of atheism is concerned, I only ask my adversaries to look at the arguments I list in the first book, chapter 3, §§85ff., where I show that atheism is directly contrary to the principles I demonstrated. Concerning heresy, however, I should be much obliged to that person who will show me a thesis in these Institutes which is contrary to Holy Scripture and the articles of faith we profess. Moreover I appeal to you, who have heard me expound jurisprudence and philosophy on a daily basis, whether I have ever professed any opinion which contradicted the sacred mysteries of our faith and whether I did not rather devote all my efforts to preserve the strict limits which separate sacrosanct theology and human wisdom from each other and to show to you from the history of philosophy in all ages what great unrest the mixture of philosophy with

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theology has caused within the church. But why do we need long discussions? Do you believe that the venerable theologians of our university, or any others who are entrusted with the inspection of doctrines, be they private or public, will allow that heterodox doctrine to be spread and to corrupt your minds? Far from it. Yet I do not deny, and have demonstrated to you several times, that there are many questions and assertions which theologians commonly use, but which, if you examine them carefully, are properly speaking not theological, but philosophical or juristic. The fact that these matters are generally regarded as part of theology is mainly due to scholastic theology, which has done enormous damage by mixing philosophy with theology contrary to the admonition of Paul, and has created a confused and disorderly mass, in one word, a kind of amorphous chaos. But it is also the fault of philosophers and jurists who neglected letters³⁵ before the Reformation and so gave the papal theologians the chance to seize what was left derelict. That is what happened to natural jurisprudence, as I say in the Institutes themselves, since the law of nature and nations and theology are entirely different. This I prove in book 1, chapter 1, §§163ff., and chapter 2, §§137ff. The news from the capital of Spain has recently brought us an excellent illustration of my opinion: “One suspects that the Dutch extraordinary envoy will receive satisfaction against the Inquisition for the insolent acts committed in his house in the case of Mr. Chares. These acts were condemned without exception by all high-ranking ministers, especially as Mr. De Lyra himself said that the inquisitors were people who understood theology, but not the law of nations, and thus did not know what was due to a public minister.”³⁶ Nor do I conceal my belief that the power to declare a heretic does not pertain to either private persons or the clergy, but is a regalian right and pertains to the prince’s right in sacred affairs, even though this regalian right must be exercised according to the standard of the divine word. I see that this is how it has been observed in the primitive church and in the first ecumenical councils, and the genuine principles of political science teach me the same. I believe also that it belongs to the duty of a good citizen in the Holy

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Roman Empire, not to speak disparagingly either in public or in private about the religions that are tolerated in the Empire, because this is what the peace treaty of Westphalia teaches me. I believe furthermore that the rules on the duties of the good citizen also apply to the clergy and that this doctrine does not contradict the word of God. I believe that the prince makes proper use of his right if he coerces those with just punishments who are refractory and driven by some intemperate zeal: I believe that gentleness does more to convert adversaries in the church than harsh methods full of verbal abuse, etc. If there is anything heterodox in any of this, I will most willingly suffer correction by those to whom this power belongs.

§32. I turn to impiety; I hear that the supposed sign of this is that I strongly disagree with my late blessed father. From this someone inferred that I did not care about divine laws, but wanted all of them to be purged from sacred Scripture. This is certainly a cheeky argument, and one that is in many ways contrary to logic. I confess that I sometimes dissent from my father, but the Catechism does teach me that I may do so with a clear conscience and without violating the fourth precept [of the Decalogue]. If someone wanted to extend this to the point of saying that the honor and reverence owed to parents also included some sort of adulatory denial of truth, though truth is guided not by authority, but by right reason, I fear that this person would be hissed and booed even by the catechumens, who are still learning the Catechism. It is not true and even a lie to say that I think harshly of my father. I appeal to all of you to say whether I ever uttered a single little word which could be interpreted as disparaging my father, whenever I indicated to you my disagreement with him. As I have pointed out above, it is possible for me not to mention the name of my father or of others to whom I owe reverence without damaging the reliability of the information. It is true that I did not think highly of some doctrines of the Peripatetics, because I noticed that they did not rest on any firm reason; it is also true, and I acknowledge it, that I sometimes referred to the philosophical writings of my father on this in my lecture, since he was, to my knowledge, the best interpreter of Peripatetic philosophy, whose ideas I developed further. But then there was no more of a disagreement between my father and myself than there is in a court of law between a plaintiff and the lawyer of the accused, especially as my blessed

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father himself diverged from common opinion in many ways, since he had better reasons, not only in his published writings but also in hitherto unpublished manuscripts (as we will show in an example in the following passages), thus setting a praiseworthy example to me.

§33. There remains the accusation of being an innovator. The disciples of true wisdom do not take this very seriously, since it is to be considered a matter of pride not to want to see everything with the eyes of others, but to find out something that has been overlooked by others, on the basis of one’s own reasoning powers. And that is the specific characteristic of Eclectic Philosophy, which I have adopted. Its superiority over sectarian philosophy is demonstrated in an erudite dissertation by Johann Christoph Sturm, which preceded a treatise on Eclectic Philosophy that appeared in the previous year:³⁷ But none of the Sectarians or none of those who worship antiquity as if it were a deity will refute this [eclectic philosophy], nor can they refute it, as I have shown to you on another occasion.³⁸ Thus I embrace many new ideas and I reject many new ones. Many new ideas I introduce myself by making use of my liberty of philosophizing and by being guided by reason which accepts new and old ideas equally. If a reply were required, I could fittingly use the sharp-witted epigram of a man among us who is both an excellent theologian by virtue of his life and his doctrine, as well as a most elegant poet—an epigram with which he recently honored participants in a public disputation:³⁹

Whoever, in oral debate, wants to protect the errors of the ancients

And boasts that everything he teaches is ancient

He, while he mocks the others by the name of innovators

Will graduate in the class of the obsolete.

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I know that it is not easy to introduce something new in theological matters because the peace within the church must not be disturbed, though novelty can be defended if it is put forward properly. But I deny having introduced any novelty in that sense and have submitted my Institutes to public censorship.

§34. Yet these calumnies allowed me to see that some had taken the concise brevity which I used in the first book as an opportunity to distort my words. I therefore not only expressed my meaning in the second and third books more elaborately than I had originally intended to, but also conferred privately on the matters in the first book with some friends, men whom I revere for their supreme zeal for piety which is the true theological virtue. I asked them to warn me in time if they detected anything there which was contrary to the articles of faith, or might seem to be so, or could be interpreted in a bad sense because it was ambiguously expressed, or which promoted some novelty dangerous to sacred doctrine. And they were very happy to do so, discussing various objections with me in a peaceful manner. I accepted these gratefully, and in order to explain what is expressed rather obscurely in the first book and to reaffirm what is doubtful, I can only communicate to you the ideas which came into my mind as a result and from my own rereading of that book. Insofar as possible, I do this very briefly and according to the rule that I either teach you how to avoid an objection through an appropriate interpretation of my intention or that I show that the opinion I defend, even if new, is not theological, and not even so new, but resting on the authority of men who are above suspicion, and often on that of our own theologians, even if this opinion is not commonly accepted.

§35. In chapter 1, §§3ff., I set out a much improved and corrected classification of faculties, and in §22 of the same chapter I assert that the common doctrine of the Peripatetics in this matter is full of endless errors. And I do not change my opinion on this matter now. However, this doctrine is certainly not theological, nor even new. For while I believed at the time that I had been the first to detect these errors, since I only remembered one error that my father pointed out in his history of metaphysics, published

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together with his metaphysical questions,⁴⁰ namely that the Scholastics described their metaphysics as wisdom, when it was nothing other than a dictionary of terms, many of which do not serve wisdom, but sophistry. Another error he pointed out in his annotations on practical philosophy was that intelligence was listed among the theoretical faculties. Yet, while doing something else recently, I noticed an elegant meditation in the manuscripts of my blessed father, which showed that the other observations I had made on the common division of qualities were already made by him around 1660. On this account I congratulated myself on the similarity of my thoughts with those of my father. This discussion is a little too long to be inserted conveniently into this preface. Yet my point will become clear if I offer a summary of his intention and his procedure in the division of the qualities. He says:

There is on the one hand intellectual virtue, on the other the virtue of the will; among the intellectual virtues one is simple, that is, intelligence, which belongs equally to theoretical and practical principles, while the other is composite. This composite intellectual virtue is either theoretical—that is, wisdom and science—or practical—that is, prudence, the guide in moral affairs, and diligence, which is the guide in matters of art. The virtue of the will is either moral, the secondary subject of which is the sensitive appetite of desire or anger; or it is artificial, that is, art, the secondary subject of which is the locomotive power of the mind as well as the body.

§36. However, as far as I know, this observation is my own, for in the same chapter 1, §23, I disclose a blatant error, contrary to Christian theology, on the difference between theoretical and practical faculties: it is illuminated by dissertations 5 and 6 of the Platonic philosopher Maximus Tyrus.⁴¹ There you will discover many arguments which he formulated on the superiority of theoretical over practical philosophy and which smack of the pagan hypothesis that the essence of God consists in contemplation

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and that the approach of man to God is through theoretical contemplation. I remember that among the speeches of my blessed father there was one, the 21st,⁴² in which he himself defended the superiority of a life of theoretical contemplation. But it is not true that he disagrees with me; in fact, he confirms my opinions in many respects. The purpose of this speech is to demonstrate the superiority of the theoretical life based on the prerogative of the first table of the Decalogue over the second. We do not deny this prerogative, but we do deny that the first table pertains to a life based on theoretical contemplation, and so we disagree in the definition of the terms. For the entire Decalogue regulates human duties, and these are the subject not of theoretical philosophy, but of practical philosophy, and the duties of man toward God will always concern practice, not mere theory. Our blessed father’s statements concerning pagan opinion on the superiority of theoretical philosophy over practical at the beginning of the said speech do, however, amply confirm what we have posited in the said chapter 1, §§24ff.

§37. What requires some explanation, however, is my statement in §24, toward the end, that “it is a false opinion of the pagans that God’s essence consists in contemplation”—that is, pure contemplation—and one which does not have any action as its end. You must therefore beware of mocking my words, perhaps by inferring that I declare God’s essence to consist in external action and so avoid Charybdis by being wrecked on Scylla and adopt the error of those pagans who say God is necessarily joined to prime matter from all eternity. For, leaving aside other matters, this argument would apply only if God were human. But as God’s essence is infinitely superior to that of humans, you would not even be able to infer that (if I had denied completely that God contemplated, which, however, you see I have not done) because contemplation is not the essence of God; it must be action. Similarly you would not be able to infer that if someone says a stone cannot see, he concludes the stone to be blind. For just as there is something in between seeing and being blind—that is,

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not seeing—which can be predicated of the stone because of its imperfection, so I believe that there can be a third term between contemplation and human action in God which I do not know because of his supreme perfection. For, based on Scripture, I know nothing of God’s essence; but I admire it, and without philosophical knowledge I believe those things which Scripture has revealed to me about it. Now if it is permissible to speak in the human way of God’s infinite essence, then my father’s words in the said speech, pages 504ff., will be found to be very pleasing:

God is happy not only in contemplation, but also in action. For even if he undertook infinite tasks in one moment they would not burden this supremely powerful and pure being. God’s beatitude is derived from himself, not from elsewhere. We by contrast owe whatever we have that is good to God, not to ourselves. What worms we are when compared to the divine majesty.

§38. In the same chapter 1, §29, I say that “Law is always binding, pacts are not.” Of course the consent of two or more parties produces an obligation (Scripture tells us so repeatedly and confirms that we are bound by promises). I discuss this in detail in chapter 6, book 2, on preserving faith; but I want the obligation that follows from the pact not to be the product of the consent itself, but of the will of the legislator who commands the keeping of promises. Thus I immediately subjoin that “a law is binding if there is a pact.” But I have done this in order to contradict more firmly some people who ultimately derive the power of obligation from a pact. Among these the foremost, if I am not mistaken, is Hobbes.⁴³ At the same time I contradict Grotius, who asserts that the laws of nature would be binding even if we assumed that there were no God, etc.⁴⁴ Yet, even if you preferred to replace the phrase that “law is sometimes binding because of a pact” with the statement that “a pact is binding because of a law” I will not contradict you, because I believe that these two phrases are compatible,

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since either suggests that a law can be binding in the absence of a pact but not without a legislator.

§39. In §31 of the same chapter I say that the eternal law is a scholastic fiction. By that I do not mean the thing denoted by that term, whether they mean divine justice or the entire order of nature established according to God’s will and decree. For who but the most blatant atheist would claim that these are the product of nothing? I declare, however, that the use of the term law by the Scholastics in explaining their concept is most improper and a fiction: Thus it follows that God does not act according to a law. You may think this is a harsh way of putting it, since what is poorly expressed is entirely different from a fiction, and fictions are not what is expressed in inappropriate words, but what does not exist outside the mind of the author of the fiction or of those who accept it. I would reply that a distinction needs to be made between different kinds of unsuitable expressions. For some of these expressions are such that they are held to be improper even by those who use them; others are such that those who use them claim that the predicate, which is applicable to the subject only in a very improper fashion, can be applied to it properly. I admit that it is not accurate to call the former inappropriate expressions fictions; but as far as the latter are concerned, these are real fictions, because the improper predication, while it is claimed to be proper, does not exist as such outside the conception of the author of the fiction, but he invents it entirely by saying that it is proper. Thus, if someone presented a portrait of somebody as the person himself, or wanted Herod to be a fox in the proper sense of the word, or the meadows to be smiling in the literal sense of the word, he would without doubt be inventing this. But it is evident that most of the Scholastics defended the idea that eternal law is a law in the proper sense of the word. On this basis they initiated wide-ranging controversies concerning the definition of this law, all in order that this general definition of law could be adapted better to God. Mr. Osiander discusses these at greater length in his Typum legis naturae.

§40. The doctrine that beasts are without sense perception clearly does not belong to theology. And if the interest of religion is mixed up with this controversy, the argument for the lack of sense perception of animals even

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triumphs over the contrary opinion. The words of the true and genuine critic Pierre Bayle on this matter are elegant; compare the Excerpts from the Republic of Letters, March 1684, pages 26ff.:

Religion comes to be involved in this cause because the anti-Cartesians hope thereby to undermine the machines of Descartes; but they are not able to see the benefit which the philosophers’ followers have derived from this. For they believe they have shown that in attributing a soul capable of cognition to animals, all proofs of the natural immortality of the soul are overthrown. They have shown that their opinion has no more obstinate enemies than the godless and the Epicureans, and that there is no better way of attacking these philosophers than by robbing them of all their false arguments, when they bring up the soul of beasts and claim that there is no difference between the soul of beasts and that of men, except that the former have a little less, and the latter a little more soul. It is certain that there are no more godless people than those who say that beasts come very close to the perfection of humans. This is how the Cartesians have used religion for the purposes of their philosophy. But they are not content with this reason. They have examined divine nature to find arguments against the rationality of beasts, and one can say that they have found many good things there.⁴⁵

And his entire, highly erudite dissertation, which he proposed on the occasion of the treatise of Darmanson, La beste transformée en machine, pages 19–34,⁴⁶ is worthy of being read by you. To put it briefly, the whole doctrine can be summarized in these few points: (1) The Peripatetics, I believe, concede that the soul of man cannot be conceived as anything other than a faculty for thought. (2) They concede that the internal senses perform acts of cognition. (3) Either it must be conceded that all cognition occurs as a result of thought, or it must be confessed that those who attribute cognition to the senses do not know what they are saying. Thus, (4) the conclusion follows naturally: Animals lack internal senses because they lack reason. Therefore animals must either be granted reason or they

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must be deprived of both reason and sensation, or perception, or cognition, or whatever word you want to use here. But this doctrine is not so new that it has to be traced from the age of Descartes. Sturm says in the first dissertation of his Eclectic Philosophy, page 54:

the first was Gomez Pereira, who asserted that animals lacked all cognition or perception,⁴⁷ and Willis in De anima brutorum, chapter 1, page 6, testifies that he [Pereira] was followed in the present century by Descartes and Digby.⁴⁸ Morhof in his dissertation on the paradoxes of the senses⁴⁹ says that Gomez, a Spanish philosopher and physician, devoted a lot of effort to this, and in Methyna in 1554 published a book he had worked on for thirty years, which was named the Antoniana Margarita after his parents.⁵⁰

Add Bayle in the work cited, pages 20ff., where he shows that this opinion perished soon after Pereira, and so the glory of inventing it should not be denied to Descartes. There has even been an anonymous author who reminded Bayle that already at the time of Augustine there were debates on this matter, and to prove this he quotes the words of Augustine from De quantitate animae, chapter 30: “But it seemed to you that there was no soul in the body of living beasts, although this may seem absurd, and there has been no lack of highly learned people who adopted this opinion, and I believe there is no lack of them now.” See Bayle, Nouvelles de la République des lettres, month of August 1684, page 2,⁵¹ and Rondelius in a particular letter, a fragment of which Bayle published in the month of October of the same year, page 290,⁵² points out to him that more than three hundred

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years before Augustine, at the time of the Caesars, the Stoics doubted whether beasts had a sensitive soul; another three hundred years before them Diogenes the Cynic did the same, even though the anonymous author soon retracted his opinion because in studying Augustine he had noticed that in the words quoted from Augustine the question did not concern the doctrine of Pereira. The learned Bayle therefore suspected that perhaps passages quoted by Rondelius did not clearly prove his intention; see the month April 1685, page 425, which is a question we perhaps will discuss in greater detail elsewhere.

§41. The arguments which I put forward on the imputability of moral actions in chapter 1, §66, are almost all taken from the writings of Mr. Pufendorf, Of the Law of Nature and Nations, book 1, chapter 5, and On the Duty of Man and Citizen, book 1, chapter 1. Yet I believe that the Peripatetics pretty much agree with me on these rules and that they are generally taught by them in their books on ethics, especially the principle which I state in §69, that facts cannot be morally imputed to a person when he has no influence over their presence or absence. But I understand all these rules to refer to the human court [forum], because in the entire Institutes I discuss jurisprudence, which has as its ultimate end the preservation of temporal peace through the execution of laws and the administration of justice, and so I do not contradict the theologians and their doctrine of the imputation of original sin in the divine court. The fact that I composed a treatise on divine jurisprudence is no hindrance, though it might lead a reader to believe, according to the laws of sound method, that these general rules are to be taken in such a wide sense that they apply not only to the human but also to the divine court. But it will be clear to anyone from what I say at the end of chapters 1 and 2 that jurisprudence, even when it is called divine and is concerned with divine laws, is not concerned with the divine court, but leaves this entirely to the theologians. I wanted, however, to add an explanation of my opinion because I wanted to avoid causing scandal to others.

§42. In chapter 2, §2, I state that certain divine laws have the well-being of humans in this life as their purpose. And by that I mean their immediate

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purpose, for this is what I say expressly in the same chapter, §§125 and 138. Thus I do not deny that every divine law which has eternal salvation as its purpose also simultaneously has well-being in this life as its purpose. I do deny, however, that this is its immediate purpose.

§43. In §3 of the same chapter I said that I disapproved of the common division of divine law into moral, ceremonial, and forensic. Yet I deny that I have thereby committed an impiety or a crime against sacred theology. I have put forward my reasons for this disapproval in a public disputation On the Crime of Bigamy, §§8 and 20.⁵³ Many who use this division treat moral and natural law as identical, and argue that the Decalogue everywhere inculcates precepts of natural law, or they defend the view that outside of the Decalogue there are no moral precepts in Scripture. They do this although it is evident that the moral law is broader and comprehends within it positive universal law, and that the Decalogue also inculcates universal positive laws, for example in the ninth and tenth precepts; finally there are moral precepts outside the Decalogue, for example in Leviticus 18.⁵⁴ As far as the first point is concerned, Mr. Osiander agrees with it in his Typum legis naturae, page 117, §15, where he says lucidly that “the moral and the natural law are based on different reasons.” The late Dorscheus said in his first Disputation on Moral Theology, §10:⁵⁵

divine positive law was superadded to natural law and communicated to humanity. It was put forward by Moses more fully and restricted to the government of the Israelite people, which was more ancient than the laws of all nations and also provided all first legislators with the origins of their laws. This is clear from the testimony of the pagans, on which Eusebius comments in book 1, Praeparatio evangelica, chapter 9;⁵⁶ from the fact that they trace the origin of all laws to Egypt, which, according to Joseph

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Psalm 105.22, owed its habitation to the ancient pious Israelites;⁵⁷ from the comparison of Roman and Hebrew laws by Justus Calvinus in his Themis Ebraeo-Romana, William Velrot in his Parallels of Jewish and Roman Law, Molinaeus in his Comparison of Roman and Hebrew Laws, and others. Add Diodorus Siculus, book 1 of his Bibl., chapter 5, page 43.⁵⁸

Then he [Dorscheus] adds in §11 that the written moral law, which was transmitted by Moses, was known already before the time of Moses, and he proves this, according to the order of the precepts of the Decalogue, with various scriptural passages. Finally he says in §13: “It is clear from the divine illumination of the Patriarchs and God’s proclamations in Genesis 3, 4, 6, etc., that moral laws which were known before the time of Moses were not only to be ascribed to natural reason but were also positive laws, and thus promulgated by God.” Add to these the blessed Scherzer in his System of Theology, locus 9, §9, page 266: “From this foundation emerges the distinction between the natural moral law and the positive law (which is better than the common distinction between primary and secondary natural law).”⁵⁹ On the second point, concerning the ninth and tenth precepts, we will soon say more. Concerning the third, what we have just noted from Dorscheus can suffice. Add to this what I discuss in great detail in the Institutes themselves in book 2, throughout chapter 3.

§44. The question concerning government within marriage in the state of innocence, which I touch upon in §§29ff. of chapter 2, is, I believe, not a properly theological question, the affirmation or denial of which implies heterodoxy or breeds scandal in the church. Thus, just as I do not demand

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that the learned esteem my opinion, so do I not believe there to be any need to search in the commentaries of our theologians to see whether one or the other supports my opinion. I confess that there are several whom I have seen embrace a different opinion from my own. However, if we have to act on the basis of authority, I oppose to all of these the words of Luther on Genesis, chapter 3:⁶⁰ “But if Eve had remained in the state of innocence, she would not have been subject to the rule of the man but would have herself been his companion in government, which is now a matter for men alone”; but if we want to argue on the basis of reason [rather than authority], I refer to those arguments which I discuss in more detail again in book 3, chapter 3, §§35ff., where I have also taken up this question.

§45. In chapter 1, §51, I state the common axiom: “Nothing is in the intellect which was not previously in the senses,” and this I declare to be true without limitations. But in chapter 2, §39, I say that the human intellect in the state after the fall from grace is like a clean slate, which is suitable for receiving various impressions: and in the same chapter, §§66 and 67, I declare that right reason is part of man from birth as a potential faculty capable of exerting its powers once the ideas have been formed previously by the intellect from sense impressions. I consider the doctrine of the Scholastics far too subtle; they teach that even infants have certain first practical principles by nature in the form of some kind of faculty with which they are born, etc. All these I add here because one follows from the other. And first, concerning that principle “Nothing is in the intellect …” this is so trite and widespread that it is to be found in all Peripatetic works on physics, so that I need not fear that this might be an assertion that does not conform to theology; see my blessed father’s Physics, chapter 49, questions 66ff., pages 263ff., and Zeidler’s Posterior Analytics, page 231, thesis 31, and page 572, §8.⁶¹ Concerning the other argument, it must be pointed out briefly that Plato and Aristotle disagreed over the way in which cognition works in our minds: Plato claimed this is the result

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of remembering, while Aristotle said it occurs through the reception of external sense impressions by the intellect. Plato therefore compared the human intellect to a slate that has been wiped clean, Aristotle to a bare one that has never been written on; see Zeidler, Posterior Analytics, page 391, thesis 4, and page 586, thesis 1. You should not however need to believe that when I mention a clean slate I have run over to the side of Plato. The previous principle, “Nothing is in the intellect …,” proves that this is not what I mean. This is directly opposed to Platonic philosophy, as I shall demonstrate to you elsewhere. I used the term clean [rasa] according to the common manner of speaking, in which clean [tabula rasa] and bare [nuda] are often used interchangeably. I am, however, happy for this term to be exchanged for the other in order to remove any cause for ambiguity. Finally, concerning the third point, I here have the consent of erudite men above all suspicion, and not only from other universities, but from our own. I refer again to Melchior Zeidler from Königsberg, who in his frequently cited treatise, book 2, chapter 3, §2, and in many following chapters shows in great detail that human reason from the time of birth is only a potential, and that ideas are innate only as mere possibilities, but not as actual qualities [habitus]. I also appeal to Conrad Horneius from Helmstedt, who in book 4 of his Moral Philosophy, chapter 2, §6, page 559, shows quite clearly that first principles, both theoretical and practical, require a previous knowledge of the terms and cannot be understood by infants.⁶² I also refer to Johannes Zeisold from Jena, who in the years from 1651 in four public disputations on natural ideas demonstrated our opinion from basic principles and strengthened it against the objections of Sperling at the University of Wittenberg.⁶³ From our doctrine I refer you back to that of my blessed father, who, according to the judgment of our much revered Alberti in his oration on my parent,⁶⁴ was a Christian philosopher

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(a title he aspired to throughout his entire life, and which is commonly applied to those people who do not contradict sacred theology by philosophizing, nor defend any opinions which are contrary to Scripture and could disturb theology. But if someone wanted to distort the meaning of this elogy and imply that this blessed man confused the disciplines of philosophy and theology, which are most clearly distinct, and that he attempted to demonstrate theological theses from principles of reason or philosophical theses from hypotheses of revelation, then he would do my blessed father a great injustice, since he would never have dreamed of confusing the two). My father therefore put forward these same principles which we have taught concerning natural knowledge, even concerning the knowledge of God himself; see his Physica, questions 68ff., page 284:

This rule is valid (nothing is in the intellect, etc.), but only concerning those ideas which are in the intellect in the form of an act, or an intelligible species, but not concerning those that are there in the form of a potential or a habit. A.: Prove it. B.: There are in our intellect certain innate ideas of the first principles, but they exist in the form of a potential, even if no sense perception of these principles preceded them. A.: I thought, however, that there are some intelligible species in our intellect, without having entered through the senses. For is not God (to leave aside other examples) in our intellect, although he cannot be grasped by sense perception? B.: Hear therefore another qualification: there is nothing in the intellect, which did not previously exist in the senses, whether in itself, or through something else. Thus I grant that God is not himself an object of sense perception, but I deny that he does not become such an object through something else.⁶⁵

§46. These passages will show you that my opinions on these matters are neither new nor particularly heterodox because they were defended by men who have never been suspected of heterodoxy. Those who disagree, however, as well as those who generally defend the opinion of the Scholastics

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point to Romans 2, verse 15, where it is said that the law of nature is inscribed on the hearts of men. That is why the Index of Novelties, n. 19,⁶⁶ also claims that the illustrious Pufendorf denies the law of nature to be something implanted in human nature and an innate faculty. But the illustrious man makes a fully satisfactory reply to this in his Apology, pages 46ff.,⁶⁷ where he shows very clearly, and by using other, parallel passages of Scripture, that the phrase writing on the hearts of men means something other than an innate faculty of this kind. And Zeisold in his entire fourth disputation already tried to show the view that our opinion was not contrary to religion, and gave a satisfactory reply to many contrary arguments by Sperling and pointed out that already in his time our famous philosopher and theologian Jacob Martinus had attacked that doctrine of the Scholastics.⁶⁸ Sperling therefore, in his Anthropologia, book 1, chapter 3, question 8, pages 186ff., insisted on the passage from the Apostle as a proof for innate ideas by writing:

For this the Apostle said: “For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another.”⁶⁹ Here it is possible to form the following conclusion: Whatever is inscribed on the hearts of pagans is not acquired but innate. The work of the law of nature is inscribed on the hearts of the pagans. Therefore the work of the law of nature is not acquired, but innate.⁷⁰

Among other things he cites the response of Martinus from the Partitiones metaphysicae, section 3, question 4, page 321, where he writes as follows:

The response to the authority of the Apostle is at hand: a distinction needs to be drawn between the inscription itself and the means of inscription. When natural [innate] knowledge is denied, this does not mean that

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pagans do not have the law of God inscribed on them by nature, since they do what is required by God’s law; but what is denied is the form which some insist on, namely, that it is inscribed at birth: that cannot be demonstrated from the saying by Paul referred to. Attention should be paid to the intention of the Apostle, and then the matter will be clear. He argues thus: either the reason for works in the cause of justice is the same for Jews and for Gentiles, or God regards the person. God does not, however, regard the person. Therefore the reason for both is the same. The minor premise is proved, or, rather, is contained within verse 11.⁷¹ For God does not regard the person. The proof of the major premise and the connection is contained in the following verses and can be summarized in this syllogism: all those who sin equally cannot, as far as their sins are concerned, be judged differently before God. Jews and Gentiles have sinned equally, therefore… . The Apostle proves the minor premise in verse 12.⁷² For whoever has sinned without a law (that is, pagans) will also perish without a law: and those who have sinned against the law (the Jews) will be damned by the law. Having argued thus, the Apostle proceeds to verses 14 and 15⁷³ (in which the entire core of the objection that was raised resides) and shows that his statement that Gentiles had sinned without a law was not to be understood simply and absolutely, but in a certain sense. Pagans lacked the external promulgation of the divine law (these are the words of Mr. Mylius on this passage), which was made to the Israelites in the Sinai desert. That is what Paul means when he says they have no law. In the meantime, he says, nature provided what was required by the law and they therefore were a law to themselves; that is, they had within themselves and in their entire nature the means to balance this defect to a certain degree. Will therefore the law insofar as it is revealed be opposed to natural law?⁷⁴

Among the modern theologians I mention Mr. Osiander, who in the Typum legis naturae, page 158, where he speaks of the nature of the human intellect, calls it an “indifferent and indeterminate power, according to Aristotle,

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a bare slate,” since on the same page he adds a reference to that passage of the Apostle, but see also pages 129ff., where he argues against those who deny that there is a natural law and insist that humans introduced all laws for themselves on grounds of utility. He first refutes this opinion by referring to the same passage from Paul; then he argues against those people on the basis of reason and adds a reference to natural ideas and says that “Reason is by nature instructed with certain theoretical principles which are so evident that they are evident even to an infant if the relevant terms are put forward, for example, what a whole is, what a part is … and so it is to be understood that the knowledge of these terms is pre-existing and based in the mind.” Thus this venerable man says quite clearly that these ideas are mere possibilities until the terms are understood. Finally, the fact that even the smallest infants are credited with faith by the theologians is no obstacle, although faith requires some knowledge, and this knowledge has to be actual [i.e., not potential]. For faith is not the work of nature. But we are here concerned with a natural effect that can be demonstrated with the light of reason, and that need not be explained through obscure and meaningless words. Therefore, just as a physician who denies that a virgin can give birth does not in that respect contradict a theologian who says that the virgin Mary did give birth, so the philosopher, when he denies that there is natural knowledge from birth, does not contradict the theologian who asserts that faith is awakened in infants by supranatural means from birth. Rather, this philosopher, if he is a Christian and sees Scripture telling us that infants have faith, does not allow himself to be drawn into the debate of the Scholastics, whether this children’s faith is an act or a potential or an ability, but will think roughly as follows:

Holy God, you have said in your word that you have not manifested the mysteries of faith to the wise of this world, but to the foolish and those who believe that all of wisdom is of no use in understanding even the smallest point of the mysteries of faith; you have through your elected vessel reminded humans that in matters of faith they should not allow themselves to be deceived by philosophy. See, almost the entire world has come to the point that it wants to measure the incomprehensible mysteries of faith with some sort of Scholastic theology, which is nothing other than a chaotic mixture of reason with your revelation. But help me

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to prefer the authority of your word to the authority of humans, however great they may be, and if I see in matters pertaining to faith your words before me, which are either wholly clear or can be interpreted by reference to other parallel passages, help me to believe these by simply assenting to them, even though I do not understand how the predicate is connected to the subject, and not to try to express your ineffable mysteries with metaphysical distinctions or other useless subtleties of this kind. Therefore, if your word teaches me that infants, who do not have the use of reason, believe in Christ, I believe this, even though I cannot form a distinct concept of this for myself, because I know that your word does not lie. But I do not know what this “faculty” [habitus] is which the Scholastics, who want to explain Scripture from philosophy, intruded into Scripture, and which they insist is neither a potential nor an act. And so, while they want to be understood clearly, the effect is that they themselves do not understand what they want, and nor do others who hear them… .

§47. In the same chapter 2, §65, I aim to prove that divine positive law must be derived from divine revelation and I refer to the passage by the Apostle, Romans 7:7: “I would not have known that concupiscence is a sin if the law had not told me: thou shalt not desire.” This passage I interpreted to mean that the Apostle here professes that he, if left to the devices of his natural reason, would not know that concupiscence is a sin unless the divine positive law had told him: thou shalt not desire. But later I noticed that not all of the theologians shared that opinion, that this law, “thou shalt not desire,” is positive law, but some considered it to be natural. Based on this opinion one could argue against my doctrine as follows: the law on concupiscence rests on creation itself, and this requires from us that we are as we have been created, and that is without any desire for evil; therefore this precept is such that if God’s justice and truthfulness are to remain intact he cannot do anything other than demand that man is such as he in his holy counsel had destined him and made him to be. For the law on which creation rests is natural, not positive. From what has been said it follows that the difference we looked for between natural and positive law in §64 does not cover the whole question, because the knowledge of natural law must be sought from right reason, positive law, however,

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from revelation. This would be valid if our reason itself had not been obscured: while it recognizes and detests the more obvious vices, it does not extend to the deeper and more subtle ones, which it would, however, have recognized equally well in the state of innocence, even though we would have known the positive laws only from revelation. And therefore it is the result of the corruption of nature, which the Apostle himself deplores, that he does not even realize his own illness except from the renewed promulgation of the law, etc. But though I placed this periphrasis of the passage from Paul into my Institutes, I did not do so without consulting our theologians, and above all I looked to the words of the late Scherzer in his Systema theologiae, locus 7, §9, page 154: “Innate concupiscence is prohibited in the Decalogue; therefore it is a sin. In Romans 7:7, concupiscence is discussed, the lawlessness of which cannot be recognized on the basis of the law of nature.”⁷⁵ And if you compare these words of the blessed Scherzer with my Institutes or my exegesis of this passage, I am certain that I will not have diverged from his meaning in the least way, and that this doctrine is one that will not cause any unrest in the church, even though other theologians favor a contrary opinion. I do not want to argue with them, but it does seem to me that—leaving other things aside—this disagreement can be easily resolved by distinguishing between the law of nature in the primordial state and that in the state after the fall, so that the objection against our opinion is relevant to the former, but we, following the blessed Scherzer, speak of the latter. And I believe that with this distinction the dispute can be resolved better than if you distinguish as follows: it is one thing for something to be prohibited by natural law, another for the prohibition to be recognized by reason alone in its present state. For, first, Scherzer not only says that the sin of concupiscence cannot be recognized by reason, but he says notably that it cannot be known from the law of nature. Second, I suspect that this distinction can be attacked on the basis of the passage from Paul, Romans 2, verses 14 and 15. While this testifies that the laws of nature are inscribed on the hearts of all nations, this passage according to the common interpretation means that the pagans also knew the law of nature after the fall, without the aid

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of revelation, and that therefore natural law at this time is nothing other than that which can today be known by humans from the light of reason, be it through certain ideas present from birth or through acquired ideas. Nor will the fact that the law of nature is unchanging and does not admit dispensation remove the distinction between the law of nature of the state of innocence and that after the fall, as long as you make the following distinction: the variation of the law itself, in which there is a proposition representing the intention of the legislator, is one thing, and another is the variation of the degree of knowledge of the same law, inculcating the same proposition in the state of innocence and in the state of corruption.

§48. I think the matter is clear, but to make sure you do not believe that I, who am not a theologian, have improperly tried to judge a dispute among theologians, I cannot but cite Osiander. Though he is a little long-winded, he will not only confirm my argument, but will absolve me from the accusation of introducing theological innovations. This eminent man says in his Typum legis naturae, pages 167ff., §§44 and 45:

The law of nature considered in the state of innocence and that of corruption after original sin are quite different from each other by their nature, condition, and effects… . For the law of nature in the primeval state requires the rectitude of all faculties, which tolerates no crookedness; it looked toward the divine image and was founded on justice, sanctity, and truth. For God created man morally good, not with infantile imperfection, as Josephus claims,⁷⁶ and not just simple and free from evil, as the Photinians⁷⁷ believed, but positively morally good in terms of the intellect, the will, and the passions… . See the passage in Deuteronomy 9, verse 5. Thus Augustine in his sermon on the truth of the Apostle, chapters 2 and 14,⁷⁸ says that man is made just and that nature has been created good by God. But the law of nature in the state of corruption is but a shadow of the primeval rectitude and a vestige of the divine image,

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faded letters from a clear type, because it exists with the completely corrupt condition of all faculties, the blindness of the intellect, the perversity of the will, the depravity of the passions, on which see Ephesians 2, verses 1, 2, 3. Second, the primordial law of nature forbade all concupiscence; it showed that all discord between the faculties was bad, and not only obliged a person to an active justice, as Molinaeus⁷⁹ believes, but even nature itself to intrinsic rectitude, as creation itself teaches us. See the passage in Genesis 1, verse 31, and compare Genesis 2, verse 25, and Genesis 3, verses 6 and 7. Augustine said correctly that the first man was created without guilt or vice in his nature (sermon 11 on the Apostolic Truth, chapter 2).⁸⁰ The law of nature after the fall, however, does not eradicate concupiscence, nor does it draw attention to this profound evil in the innermost fibers of the mind, so that the Apostle himself says in Romans 7, verse 7, that he had not recognized sin without the help of the law—that is, the Mosaic law—which prohibits concupiscence. For although he acknowledged, as a Pharisee, that concupiscence which leads to evil external actions is a sin, he believed that the inner stirrings were not to be given this despicable name. Although he was able by the light of reason and natural law to come to realize that the inner stirrings, produced with the concurrence of the will, were reprobate fruits, he still could not penetrate to the evil root and recognize the evil of habitual concupiscence without divine law. Thus he says further in verse 14: “We know that the divine law is spiritual; but I am carnal, beholden to sin.” The Decalogue therefore or the divine law is spiritual, but man, as he is, remains carnal even with the law of nature: for if a regenerate person calls himself carnal, regardless of the fact that the spirit of renewal is dominant within himself, how much more carnal is an unregenerate person, even though there is a little of this spirit in him. Third, the law of nature in the first man included the love of God and of our neighbor and was a pure and perfect faculty, with which he could produce truly good works, which pleased God. And when this law was observed, it culminated in eternal beatitude. For he who acts thus will, according to Moses, live in them (Leviticus 18, verse 5). This is why Augustine also declared that Adam had been created as a blessed being, endowed with a good will. For the joy, he said, which is born from the acquisition of this good, is called the blessed life since it elevates the mind peacefully, quietly, and

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constantly—unless you believe that to live blessedly is something other than to enjoy what is truly and certainly good. See book 1 of the work On Free Will, chapters 12, 13, and 14, On the City of God, chapter 20.⁸¹ But the law of nature in corrupt man does not know what this love of the true Deity—the Father, the Son, and the Holy Ghost—is, nor does it know this sincere and perfect love of our neighbor; it does not give birth to truly good works, but—if you consider the evil within the soul—only to the appearance of virtue, nor does it lead to eternal beatitude. Otherwise pagans could, by constantly observing the rules of external honesty, aspire to the goal, the ultimate end, which exceeds all of nature after the fall of Adam and all the natural powers [i.e., eternal life]. That would also be contrary to the explicit words of Christ in Mark 16, verse 16. It is the case, therefore, that the law of nature in the state of innocence is not the same as the law of nature in the state of corruption, since the former draws attention to a more sublime dominion and binds humans to it; the latter, however, exists in an inferior sphere: it does, of course, take care that humans do not degenerate into beasts, but does not in any way stimulate the search for and the veneration of God. It is also the case that the law of nature which had informed the mind of Adam was repeated in the Decalogue which corresponded to it exactly; it required that perfection which shone forth in Adam and demanded the highest and most extensive love of God and one’s neighbor, as interpreted by Christ, Matthew 22, verse 37.

§49. In §§125ff. of chapter 2⁸² I stated that the divine positive laws, which direct the duty of man concerning the worship of God, have eternal beatitude as their immediate purpose, and I immediately related ceremonial law to this. Yet I sensed later that there were some theological arguments which could be put forward against me on that matter. One is that the ceremonial law did not have eternal beatitude as its aim in the sense of being a means to acquiring it, so that whoever rigorously observed the Decalogue would achieve salvation. The ceremonial law was also imposed after man had become corrupt and incapable of being saved through a law, and

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divine wisdom would never have imposed a law for a purpose that could never be achieved. The purpose of this law was rather that the Israelite people and the church, from which the Messiah was to be born, should be distinguished from other nations and that the law should be a guide to this end for those people who were subject to it and had that particular promise. The ceremonial law as law therefore did not save anyone, even if it was adhered to rigorously, but it did contribute to salvation, insofar as it furthered belief in the Messiah. For it cannot be denied that the sacrifices and the other sanctions of the law relate to the faith in Christ, but that the law and its sanctions are one thing, the faith they encourage is another. God, therefore, did not have either temporal well-being or eternal salvation in mind when he framed the ceremonial law, in the sense that it would be obtained through this law. But he prescribed a form of worship which on the whole led humans toward faith and the Messiah and directed them toward him, so that they might achieve salvation through him and by these means. If God intended something with a law, this would be obtained by adhering to the law. In that case God would have done better if he had not given corrupt human nature any law at all and had tried to bring about their salvation without a law, because the honor of saving humans, according to his own order, is due to his grace and to faith alone, etc. What do we reply? To put it briefly: We agree completely that, by observing the ceremonial law, humans cannot acquire eternal beatitude, but we deny that therefore it cannot be said that God intended the eternal beatitude of man in this law. We argue, rather, that because God in imposing this law wanted to provide guidance toward faith in Christ, he thereby intended to save humans. We believe it also has to be said that in the very imposition of this ceremonial law God intended the salvation of man, not immediately, but eventually, insofar as it contributed toward faith. Therefore we note that this phrase that “God had a purpose in the law” is to be understood in two ways: first to refer to an intention, which supplies the law as an immediate means to achieve this end; second, it is understood to refer to an intention, which looks to achieve an end in such a way that the law itself does not supply the means, but only leads us to the means to achieve the end. The former meaning is that used in the objection, but we are concerned with the latter sense in our Institutes. I will

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illustrate through a simile that the latter sense is not inappropriate. Thus it is not inappropriate for me to say that he who studies physic because he wants to later devote his efforts to medicine intends to cure the human body, even when he learns in physic the imperfections to which the body is subject. This is so even though the knowledge of these imperfections is not the means to achieve this cure, but only leads to another discipline which does show the cure, namely, medicine. Yet I can forgive someone who has skimmed my Institutes or read them superficially and then raises this objection, because I realize that my choice of words encourages it. For I had said that in the laws which concern the worship of God, including the ceremonial law, God immediately intended the eternal beatitude of humans. How did God intend this salvation in a law if the law itself is not a means to achieving it? The ceremonial law and all the other laws that were published after the fall do not dictate beliefs that are to be held, but actions to be performed, and regulate some matters concerning divine worship. We admit that they look toward eternal life only in the last instance and to the extent that they offer guidance toward faith. But we thereby clearly assert that these same laws are concerned mediately with eternal beatitude. If this is the case, surely, one of the main principles on which our Institutes rest would be overturned. Thus, in order both to support my principles and to put to rest this grave doubt, it is all-important that I resolve another ambiguity which is contained in the phrase “to intend something immediately.” The word immediate is taken either in an absolute sense as a negation of any other means, or conditionally as a negation of certain means. If someone wants to examine accurately what we have discussed in our Institutes in the said chapter [2 of book 1], §§125ff., it will be clear to him that when we say that “laws regulating divine worship have eternal beatitude as their immediate end,” it is not our intention to deny all means, such as faith, but to deny only that these laws concern eternal salvation via temporal well-being, or that they concern temporal well-being and the tranquillity of humanity in the first instance and eternal life in the second. We will explain our meaning again with a simile. If I compare the study of nature with ethics I say correctly, and certainly not inappropriately, that the immediate aim of ethics is the care for the mind; the study of nature, however, has as its immediate end the care of the

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body. Apart from this comparison, however, or if I compared the study of nature with medicine, it would necessarily follow that the care of the body through the study of medicine is mediated by medicine even though the study of nature would have this care of the body as its immediate aim through the mediation of medicine.

§50. At the end of chapter 2 I discuss the exact difference between jurisprudence and theology and the true boundaries between these two university faculties. I argue there that the explanation of divine laws concerning the duties of men toward their fellow men also belongs to jurisprudence and that this doctrine is shared by jurists and theologians; see §§137, 141, and 142 in that chapter [2]. But in order to remove any remaining doubts on that, I appealed (1) to the common practice in the territories of the Protestant princes, for it is known that in matrimonial cases (and the divine positive law, which also pertains to jurists, applies particularly in these cases) when there is any doubt concerning a prohibition in divine law, opinions are sought not only from the theologians, but from the faculties of law. And this is because the doctrine on marriage among Protestants is part of ecclesiastical jurisprudence, which Carpzov at our university and Brunnemann and the excellent Stryk in Frankfurt an der Oder have explained in greater detail in entire treatises.⁸³ And in these treatises they also cite opinions of faculties of law on matrimonial cases. Thus from the response of such a faculty of law emerged the controversy between Buch holz, Havemann, and Strauch concerning the case of a marriage with the sister of a deceased wife.⁸⁴ Bucholz listed various testimonies of our theologians to prove that matrimonial cases are a secular matter, because matrimony, according to our belief, is not held to be a sacrament; see the responses of the Rinteln jurists, etc., numbers 9 and 10, pages 27ff.⁸⁵ (2) The practice of the consistories⁸⁶ shows the same, because usually half

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their members are theologians and half are jurists, for no other reason than that spiritual matters concerning eternal salvation pertain primarily to the theologians, while secular matters, which directly concern temporal tranquillity, are the business of the jurists. And in order to show that this is not a gratuitous comment, I appeal (3) to the principal Constitution of the Elector Augustus, the Saxon Elector, in the Regulations of the Leipzig and Wittenberg Consistories, title 1:

Since not only cases of conscience, but also secular cases must be brought before these consistories and dealt with there, concerning matrimonial cases, the goods and salaries of church employees and schoolmasters, the life and conduct of teachers and congregation, none shall be staffed exclusively with either theologians or secular officials, but in equal measure with persons from both estates, that is, with two learned and pious, upright and honorable theologians, and with two secular officials. Title 8. The opinion or judgment, however, should be formulated and pronounced according to holy Scripture and the laws that are commonly accepted and in general use in our territories. And since a number of eminent theologians, [such as] Luther and Phillip [Melancthon], drew conclusions from Scripture, which concern cases of marriage and other similar matters but are incompatible with the common laws, so the members of our consistories shall pay heed to these, too, and insofar as these have been hitherto observed in our territories and have been accepted through the practice of the consistories, shall formulate their judgments and decisions on that basis.

Therefore, I concluded in §140 of chapter 2 that in this respect jurisprudence is privileged in comparison to medicine and philosophy, because these two must not draw their principles of demonstration from theology. There is no doubt in the case of medicine; nor do the physicians pretend to have the right to do so. In the case of philosophy I recently gave you conclusive proof of this. That is what the venerable Faculty of Theology of our university referred to recently in the program for the ninth Sunday after Trinity this year, displayed in public, which said that “nobody in our university should be permitted to explain the mysteries put forward in Scripture, or to derive what is just and unjust from revelation, which is the duty of moral theology, or to hold classes on the fathers of the ancient church, the dogmas, heresies, rites, and whatever else ecclesiastical history

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examines, unless he has obtained the right and the privilege of teaching these matters from us after a thorough examination.”

§51. In chapter 3, §§65ff., I touch on the mixture of philosophy with theology, which was the worst possible thing introduced by the Scholastics, and in the following paragraphs I include Pneumatics⁸⁷ in that. This goes against the authority of many men who enjoy great respect in many matters, so in order that my opinion may not appear too harsh or new to you, I draw on the authority of the illustrious Seckendorff in his Christen-Staat,⁸⁸ book 3, chapter 7, §2, pages 514ff.: “Our Messiah did not reject the use of the Jewish schools, but rather pointed to them and called them the chair of Moses. What he did reject, however, was the abuse, that is, the mixture of God’s word with human opinions and interpretations and the formation of different sects: for it is from the disputes of the schools that the factions of the Pharisees and Sadducees developed, about which much can be read in the New Testament.” See also, in the same work, chapter 7, §4, pages 518ff.:

One does not hear it said that Paul had a philosophical manner of speaking or arguing according to the terms of the art of logic, topical argument, metaphysics, or apodictic argument, which were already in existence by then. He was perfectly capable of forming rational and concise conclusions and using ornate expressions supplied by reason and practice without the artful books and teachings of the Greeks, and he kept the Holy Spirit as an instrument for preaching the word. These are the elements that are left over from the good light of nature and which he purged and sanctified. Thus, when he began to dispute with the sects of the Epicureans and the Stoics in Athens and could adapt himself well to people, becoming, as he himself says, all things to all people, he did not need the philosophical wisdom of the schools, but only proclaimed the gospel of Jesus and the resurrection to them [the sects], regardless

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of how incoherent it seemed to them. And since he spoke publicly (in the Areopagus⁸⁹) on the square where executions took place, he did have a great opportunity to start talking on, for example, being as such, the divine nature, or the condition of the world, just like the philosophers who came up with these topics and could conduct nit-picking arguments over them with each other. Yet he did not do it but set aside all such art and artful words and began from a point that seemed the worst possible and made them ignorant idiots: that is, from the altar of the unknown God. He then moved on to the foundation of the word of God, without considering it worth examining or refuting their theology and idolatry in detail, or disputing de natura deorum, that is, the nature of God and his properties in metaphysical terms. Instead he began with the article of the Creation and the right knowledge and reverence for God that followed from this: he accused them of idolatry and ignorance. And, leaving aside all their countless and subtle books, he put forward the single testimony of a poet which confirmed Creation, namely, that humans were a divine race or came from God. Thus he left their whole philosophy and subtlety aside, admonished them only to convert by holding up to their eyes the threat of the last judgment and the glorious opportunity, which the judge of the world (Christ risen from the dead) offered through faith.⁹⁰ Thus it is evident how this incomparable Apostle or messenger of God, who was directly instructed by heaven, taught Christianity even among the most learned people of that age (these were in Athens which had the most famous school of philosophy). He did this without philosophical art and did not use any tools provided by the learning common at that time, unless he found something in a well-known book that conformed to the article of faith concerning Creation. One also finds that he first taught from the Old Testament in the Jewish schools and then used this to prove that Jesus of Nazareth was the Messiah prophesied in it. He directed his two dearest and best disciples and followers (who became wonderful and holy bishops), that is, Timothy and Titus, to Scripture and to reading and repeating it diligently, just as he warned them to abstain from worldly cleverness and school quarrels.⁹¹ He warned Christians in general of this, as he did in these words to the Colossians: “Beware lest

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anyone spoil you through philosophy and vain deceit, after the tradition of men, after the rudiments of the world, and not after Christ.”⁹²

See also chapter 8, §1, page 531: “Very erudite people have already observed that as soon as the philosophers or the learned pagans adopted Christianity and introduced their doctrines and manner of teaching into the church, the quarrels of the schools, of which Saint Paul had warned, increased. Most of the heresies emerged from these, for the same learned men brought their previously held opinions into the church and wanted to judge of the articles of faith according to the rules and modes to which each was accustomed.” And §2, pages 534ff.:

When, however, the old books of the pagan philosophers fell into the hands of the clerics, especially the monks, then Scholastic Theology broke loose, doing more harm than good. It seems to me as if the good monks and priests who first laid their hands on these books were driven by great curiosity and at first made a big secret out of it. They also wanted to be seen to be able to speak and chatter of other things than holy Scripture and the Fathers or the legends and saints’ histories, which is what they almost exclusively fed the laity, both high and low. Their action would have been Christian and good if they had burned the recovered pagan books immediately, rather than using them… . For unfortunately it seems that they learned to grasp the meaning of God’s word with the help of these arts. They acted like someone who wants to furnish a palace according to the example of some random old farmhouse. And if one compares the dignity of holy Scripture with worldly wisdom, then they have mixed gold with copper and lead, pure wine with murky water, by beginning to measure and examine articles of faith according to the standards of philosophy. Then they wanted to know how to talk about God, Christ, the holy sacraments according to the praedicamenta and the predicabilia, then substance, accident, quality, quantity, act, potential, moral cause, abstract, concrete, and other such terms, far more nit-picking than those the pagan philosophers had ever produced, and with invented barbaric expressions that had to be applied to the mysteries of faith, which then had to be examined and weighed according to them. Among other countless terms and their distinction were otherness, thisness, identity, individuation, whatness, supposite, whereness, voluntariness, eminently,

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formally, entitatively, concomitantly, radically, intentionally, primary and secondary, numeric, precise, reduplicative, and many other similar ones… . And since this art has taken over almost the entire clerical estate, it was no longer possible to subdue it. Instead it became as necessary as some others, for once one had gone beyond God’s word it was necessary to disprove the errors which developed from this with equal subtlety. This developed in the manner described in the learned proverb concerning the northeasterly wind, which they call Caecius, which tends to produce great waves it cannot disperse… . And so scholastic theology became a system which nobody could ever finish learning. On the contrary, the quarrels increased to such an extent and arguments were conducted with so much deceit that it was almost impossible to distinguish any longer the true and well-founded opinion or at least rarely possible to form a definite conclusion about it.

See also the additions to chapter 7, §2, page 299:

Johann Gerhard in his Theological Method,⁹³ final chapter, makes the following comment on the Scholastics: the blessed Luther took the well-founded and salutary decision to ban Scholastic theology, which he called ignorance of the truth and inane fallacy, from our schools, and where one tried to re-introduce it, it was as if one wanted to have acorns instead of bread as food. For, he said, the Scholastics had confused philosophy and theology concerning the principles of disputation. Hence Erasmus compared Scholastic theology, especially as it was practiced at the Sorbonne in Paris, to the centaurs, who according to the poets were half human and half horse.⁹⁴

Thus you will not be surprised that in chapter 3, §61, I reject that term eminenter, which the Scholastics use in discussing the divine attributes, because you see that the illustrious Seckendorff in the passages cited above reckoned this, too, among the barbaric terms and distinctions.

§52. In chapter 4, §§35ff. I believe I showed through genuine arguments that it is possible, without damaging Christian religion, to use a fiction concerning something that God has revealed to us as being different. And

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in order that the argument not be conducted in vain, I defined in §38 what I meant by a fiction, namely, the first part of a hypothetical proposition which neither affirms nor denies anything, but which only infers the second part as a consequence from this fiction. This description is appropriate for the incident that gave rise to this controversy. When the illustrious Pufendorf was about to publish his work on natural law, he assumed that one had to abstract from the state of innocence and, when arguing with a pagan, assume the present state of man. On this basis, that is, the hypothesis of the pagan who knows no other state, the pagan must be persuaded of the truth of the natural precepts, however he conceives the origin of humanity. But this is nothing else than to infer a necessary connection between the second part—that is, the precepts of natural law—and the first part of the hypothetical proposition, which the pagan considers true, but the doctor of natural law neither affirms nor denies. The argument that among others is usually advanced against Pufendorf’s doctrine is that a Christian must not invent anything. I could not contradict this opinion any more strongly than by showing that a fiction defined in that sense is not contrary to religion and, moreover, differs from a lie, which I define in book 2, chapter 7. Yet, if someone refused to be satisfied by my argument, I would ask him, before he picks a fight with me, to propose his own definition of a fiction and to show that I have not defined it correctly. If he uses the term fiction in another sense than I do and refuses to explain his meaning of the term by offering an unambiguous description, nobody can blame me if I abstain from a struggle that would be inglorious, like that of blindfolded gladiators who make the audience laugh but are useless at finding the truth, which should be the purpose of all disputation. He may tell me that hypothetical propositions could not be used against him; for example, that in the trite inference “if an ass flies, he has feathers,” the logician does not pretend that the ass flies or has feathers, but only shows the consequence, by which one follows from the other. He may repeat this a hundred times, but I will still uphold my definition of a fiction until he has supplied me with another and better one. Indeed, thinking further on this matter, I can see no way how anybody can deny that in this proposition the prior part if an ass flies is a fiction, unless it is that the term fiction was not expressly used here. Yet the principles of determining

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equally strong arguments show clearly that it is one and the same whether you say, “If an ass flies, he has feathers,” or you explain your intention thus: “Imagine that an ass flies, then he will have feathers”; just as, again, it does not matter whether you say: “Imagine a person; no matter by what means he has been set in this world, he is nevertheless a social being,” or: “If a person is placed in this world, no matter by what means this comes about, he is nevertheless a social being.” The arguments that are derived from the definitions of things are normally apodictic, and the description I have provided of the fiction shows that it is not contrary to religion, even if we invent something that has been revealed to be otherwise in Scripture or invent whatever pleases us. It is clear from this that it is a gross violation of the rules of learned debate to accept my definition of the term fiction but at the same time criticize the use of fictions and hypothetical propositions, which I used only for the sake of explanation, wishing to show that the reason for the difference is that nothing was to be invented in an argument if the contrary has been revealed by Scripture. For nowhere have I used an argument from analogy, against which otherwise the proof of a disparity would carry a lot of weight. Thus I do not infer that if the fiction “if an ass flies” is valid, then it must also be all right to come up with the fiction that man has been placed in this world, by whatever means, or that there are two kinds of humans in this world, which is a fiction I put forward in §31. So that you do not think I need an argument from analogy, I ask: Do you believe it to be a sin against orthodox religion, if an arithmetician speaks thus: “Let us pretend that there were twelve pots in Canaan in Galilee, of which each held three measures; it follows then necessarily that they were filled with thirty-six measures in total.” But here something is invented which Scripture revealed to us differently, namely, that there were only six pots. And I am convinced everybody will say that this fiction of the arithmetician is close to being a lie, because he invented something contrary to revealed truth. And if that is not said, this will not protect him against the accusation that his argument is absurd, even if he put forward as a proof that truth, especially divine truth, is simple, and that therefore what is contrary to it is a lie. Apart from the fact that here a moral lie is confused with a logical error, how is it possible to say that if our definition of a fiction is assumed and holds up, a fiction which neither

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affirms nor denies anything is contrary to truth? I believe that all remaining doubts concerning my opinion and its orthodoxy will now have been lifted from your minds. I will add a few comments on its novelty. I do not fear being accused of that, because I am convinced that fictions are accepted by scholars in all faculties. I would even be prepared to bet that, even in their dreams when fantasy strays more widely, none of our people would have thought of asserting that a Christian cannot invent something that is contrary to scriptural revelation. Rather, if someone wanted to examine the writings of the theologians more closely, he would undoubtedly be able to collect several examples of such fictions. So far I have not had the leisure to do so carefully, but I will offer you one, which is very clear and based on the authority of a theologian who is absolutely orthodox, that is, our venerable Mr. Alberti. For I read in part 2 of his Compendium of Natural Law Conforming to Orthodox Theology,⁹⁵ chapter 7, §21, page 139: “Imagine the following impossible situation: that there existed at that time [when Adam distributed a part of his goods among Cain and Abel, so that the former owned all immovables, that is, the fields, the latter the movable possessions, that is, the cattle] so great a number of humans as would have been required to possess the entire globe; then Adam would have had to grant each individual some part of it, because he had received some for each person.”

§53. In the same chapter 4, §64, I conclude that sociality is the foundation of the law of nature. I do not want to put forward any new argument to prove this assertion, but will refer to a passage from the illustrious Seckendorff, which will, so to speak, make it obvious to you that our opinion already flourished before the birth of Christ, and that it is therefore older than the doctrine of the Scholastics, who derive natural laws from divine sanctity, and older than the very recent opinion of those who look for it in the state of innocence, and that this illustrious man proved our conception of human sociality. This is contained in the Entwurff oder Versuch von dem allgemeinen oder natuerlichen Recht, which is added to his German speeches, pages 442ff., §§10 and 11:⁹⁶

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It is not difficult to see what the real characteristic and formal nature of this right is, namely, that it instructs the nature and reason of man and regulates his sociability with other human beings, or rather presupposes it. For because all humans have a creator and are the descendants of one man (a fact which the pagans suspected, but we know as a certain truth from God’s word), and have been created by God in such a way, both in their body and soul, that one human being cannot live without another, so the entire nature of man is such that he forms societies with others, not only in the conjunction of man and woman (for this is characteristic also of animals) and not out of a pure instinct, the way herds gather, but with deliberation and rational thought. Therefore, it must be posited that not just need, but the nature and reason of man, which are derived from the divine order, demand sociality and a form and just manner of dealing with each other in such a society. This is evident from, among other things, the fact that if it occurred from mere need, a man who had everything he required for his sustenance and comfort would not desire the company of other humans. He desires it zealously, however, unless he is deprived of natural reason or corrupted by deeply rooted sinful habits or bad education. So, like others, Cicero the learned Roman proves that such a desire is inborn, general, and a work of nature. Thus he says: “Humans are born for the sake of other humans, so that they can be useful to each other and help each other.” 1. Off.⁹⁷ “Next to God it is man who can be most useful to man.” 2. Off.⁹⁸ “Nature requires that one human being advise and help another, whoever he may be, for no other reason than that he is human.” 3. Off.⁹⁹ “Nature drives us to want to help many people, especially in order to instruct them and make them wise. For this reason it is not easy to find someone who would not happily teach another what he knows. Thus we are not only eager to learn, but to teach others.” 2. De finib.¹⁰⁰ We differ from animals mainly in that we speak with each other and can communicate our opinion to each other. In another passage he provides a parable by an old philosopher and says:

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If it were possible that a man were elevated to heaven and there saw the glories of the stars and other beautiful things, and then returned to earth, this would no longer give him any pleasure and joy, if he did not find or meet anybody with whom he could talk of the things he had seen and heard.

It can easily be concluded from this that if God had not commanded this sociality, humans would not require any other right in this life than what we see in animals, who have an instinct for self-preservation and seek to satisfy their lust.

And although some favor the opinion that this means of demonstrating sociality achieves little among pagan nations and barbarians, we nevertheless oppose to this the words of the illustrious author, ibidem, page 440, §6:¹⁰¹

The fact that we who are Christians and have specific and detailed civil laws speak about, teach, and inquire after this general divine or natural law has this reason and purpose in particular, among others: (1) that we recognize 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