Читать книгу Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations - Christian Thomasius - Страница 12
Оглавление[print edition page 61]
§1. The term jurisprudence involves two concepts, prudence and right [jus].
§2. There is no better way for us to understand prudence than by going over the different faculties [habitus]1 in a little more detail.
§3. A faculty is either infused, that is, one which man possesses without previous knowledge, or acquired, for which labor and effort are necessary.
§4. The acquired is gained either through supernatural or through natural powers.
§5. The faculty which is acquired through natural powers is either intellectual, if it is based in the intellect and is acquired through acts of the intellect, that is, affirmation and denial, or it is voluntary, if it is based in
[print edition page 62]
the will and is acquired through acts of the will, that is, the desire for or aversion to something.2
§6. The intellectual faculty has as its object either principles, which may be theoretical or practical, in which case it is called understanding, or conclusions from these.
§7. In the latter case, concerning conclusions, this faculty is either theoretical and aims to understand the creator and creation, or practical and aims to understand human actions.
§8. The theoretical has as its subject either being as such and is called ontology (nowadays usually metaphysics), or certain species of being.
§9. And this ontology either considers the creator—this is called wisdom [sapientia], and once used to be called metaphysics, but today is termed the first part of pneumatics —or it considers corporeal creatures and is called science.
§10. Science, however, examines corporeal creatures either with respect to their essence and qualities, which is what physics does, or with respect to quantity, which is the subject of mathematics.
§11. We now turn to the practical faculty. Its synonym is prudence, which takes on different names according to the diversity of human activities. If these actions are those of people living in a civil society, it is called political prudence; if they are the actions of those living in domestic society, it is called economic prudence.
§12. Each of the two is concerned with future and past actions. The former is advisory in a broad sense; the latter is judicial in the broadest sense.
§13. Advisory prudence is occupied either with one’s own actions or with those of others.
[print edition page 63]
§14. And it is occupied with the actions of superiors, or equals, or inferiors.
§15. The last of these is given the special name legislative prudence, which is the noblest part of jurisprudence in a broad sense. The other forms retain the title of advisory prudence, and that part which advises the superior in legislating or acting according to the norm of the divine laws is the other part of jurisprudence in the broad sense.
§16. Moreover, the actions of men, both future and past, are honest, that is, they conform to a law and are predicated of man insofar as he is rational; or they are pleasant, that is, they delight the external senses and concern man considered as an animal; or they are useful, that is, they are directed to the preservation of the individual. In the last case man is considered as a living physical being.
§17. That prudence which is concerned with honest actions in general is jurisprudence in the broad sense, and that which is concerned in particular with the honest actions of others in the past is judicial prudence in the strict sense, or jurisprudence in the strict sense, or the third part of jurisprudence in the broad sense.
§18. But that prudence which has as its object the pleasant or useful actions of men is prudence in the sense of skill [ars].
§19. If man directs these, as he should, toward honest actions, this is good and he remains prudent; if he does not do so, he is said to be astute or cunning.
§20. If he is obviously without prudence in skill, he is termed imprudent.3
§21. The faculty of the will remains. This is acquired by actions that are prescribed by law and in that case is a moral virtue, or by actions prohibited
[print edition page 64]
by law, when it is called a moral vice, or, finally, by actions permitted by law, when it is nothing more than skill.
§22. These points had to be presented in a little more detail, because the common doctrine of the Peripatetics on the division of the faculties and the various kinds of intellectual virtues is full of countless mistakes, which anyone who has compared their teachings with what has been said so far will easily detect.
§23. We cannot but point out here a little more fully that according to general opinion the difference between theoretical and practical intellectual faculties is that the latter also have action as their object, but the former have contemplation as their ultimate end.
§24. Now this error is not only contrary to right reason, since all theoretical faculties have practical ends, as can easily be shown empirically. It also conflicts with true religion and is the result of the false opinion of the Gentiles, who believed that the essence of God consisted in contemplation.
§25. Various comments by the great Aristotle, whom they follow, are relevant here: “That beatitude based on contemplation is nobler than that based on practice; that the former is accompanied by a more sincere pleasure than practice; that theoretical contemplation joins humans more closely to God than practice does”; similarly: “That prudence serves wisdom …”4
§26. Instead of these trifles we prefer the saying of Paul, the wise Apostle who above all contemplation preferred love that is born from prudence.5
§27. This is all we have to say concerning the term prudence. The term right is understood in several ways. Above all, it is understood either as law or as an attribute of a person.
[print edition page 65]
§28. Law is defined in one way by Grotius, in another by Aristotle, and in yet another by jurists. The Scholastics, however, labor over this question in ways that are strange and inept at the same time. We define it thus: “A law is a command by a ruler obliging subjects to guide their actions in accordance with this command.”
§29. According to this definition, a law differs from advice and from a pact in various ways. And that is not controversial. You should, however, note the following in particular, because it is not commonly accepted: “A law is always binding, even without a pact; a pact never without a law,” though a law sometimes obliges via a pact. Then the pact is only the occasion for the obligation, just as opening the doors is the occasion for letting light into the room.
§30. The author of a law is always a ruler [imperans]. We would rather use this term than the term superior, as others do. For apart from the superiority associated with rule there are other superiorities, of order, for example, or of dignity, as well as superiority based on beneficence. Here we are not concerned with these.
§31. It follows that God does not act according to a law and that the eternal law is a fiction of the Scholastics.
§32. He on whom the law is imposed is the subject or the person obeying. This presupposes reason, and as brutes lack reason, they are not bound by law.
§33. Thus man remains. Therefore law is commonly termed a norm of human actions. But the action of man in conformity to law is, in one word, called duty.
§34. But there are different kinds of human actions. Some are specific to man, others are common to him and to animals and plants. Therefore, we must determine which ones law can regulate. And here we first need to form a clear idea of man himself and his essence and must rid ourselves of certain prejudices.
[print edition page 66]
§35. Man is a rational animal. This is how man is commonly defined. Nor does the scala praedicamentalis of substance in the books on logic allow any other definition, even though it neither corresponds to the intention of Aristotle nor is to the taste of Porphyrius, the inventor of this scale.6 But the same definition is subjected to a variety of criticisms by Chrysostomus, Cardano, van Helmont, Antoine le Grand, and others.7 We will retain it but add the necessary explanation.
§36. We do not believe an animal to be a living body with powers of sensation, but a living body endowed with locomotive powers. Indeed, as the most acute philosophers have shown us, animals lack sensation—that is, internal sensation—without which the external senses do not deserve the name of senses, and they are not moved in any other way than clockwork, except that the more subtle particles of air sometimes strike those animal organs which are the seat of the external senses in man and thereby cause internal movements.
§37. I know that this hypothesis will not please those who measure the truth of assertions by their antiquity. Yet, even if I could make no other reply to them, I would at least urge them to tell me, if, as I hope, they do not attribute powers of reasoning to beasts, what the difference is between [on one hand] basic sensation, the imagination and memory, which they attribute to beasts, and [on the other] human reason.
§38. Therefore, just as man has life in common with plants, he has the powers of locomotion in common with beasts. What remains is covered by the term rational. But human reason is nothing other than thought.
[print edition page 67]
See Descartes’ wise statement: “Man when he understands something, thinks; when he wills, thinks; when he feels, thinks.”8
§39. It follows automatically that the two functions of our reason that are usually listed, namely, the intellect and the will, need to be supplemented by a third, namely, sensation, which is distinct from locomotion but includes the sensitive appetite.
§40. Sense is commonly divided into internal and external. Vision, hearing, smelling, taste, and touch usually represent the external senses, to which some add sexual lust as a sixth; others add a seventh and eighth to all of these, thirst in the mouth and hunger in the stomach. The internal sensations are reduced to three kinds: basic sensation, imagination, and memory.
§41. All external senses, however many they are, are passions of the body, not actions of the soul. But insofar as there is a simple apprehension of these things, the result is a sense perception which we can accept being described as basic sensation, just as imagination is used to describe the sensation by which man forms ideas for himself from these passions or when he is prompted by them. Finally, memory is the term for the sensation by which man remembers a sense impression, while reminiscence is the term used if this act of remembering takes place by means of ratiocination.
§42. The Peripatetics, however, say and teach that all senses perceive sensible objects, the external senses passively, the internal actively. But just as passive perception is a fiction, so I do not understand how active perception can exist without thought; and so they who teach this must concede that the internal senses are identical to the power of perception of the rational soul, or else they themselves have no idea what they are teaching.
[print edition page 68]
§43. Furthermore, the sensitive appetite, as it is described in the schools, is nothing other than a will which approves of the object that delights the body. And if this desire is not contrary to the law, it is fine; if not, the will of man is perverted. Yet such a perversion of the will does not mean that it can be treated as part of a sensitive soul that is common to humans and beasts any more than perverted reason can. For in either case man still thinks, even when he reasons perversely and desires perversely.
§44. Intellect and will are left. If we disregard the ancient fables of some intellect acting outside man, intellect is understood either in a broad sense which includes intellective memory, or in a strict sense that is opposed to it. Indeed the intellect of man either apprehends the objects of the external senses directly, by forming a proposition on their nature or goodness from the accidental properties affecting the sense organs and delighting the body, or by forming unclear ideas of objects which it has perceived through the senses previously; or it reasons by meditating further on the truth of these propositions, the goodness of the object and on the ideas of it.
§45. The prior faculty retains the title of intellect, while the other is commonly described as intellective memory. We will call the former the first operation of the intellect, the latter the second, which can, however, be varied in infinite ways depending on whether it does more or less. If you want to call the first operation reason and the second ratiocination, we will not object either.
§46. Thus, we do not need to agonize over the widespread controversy whether there are three, four, or however many operations of the mind, especially as the first operation of the mind that is taught in the schools does not exist, and our division is more useful, about which I will say more soon.
§47. Therefore, among the internal senses the one which is called basic pertains to the first operation of the intellect; imagination and memory pertain to the second.
[print edition page 69]
§48. It is common to divide the intellect into theoretical and practical. But apart from the fact that this division seems to have been invented once upon a time in order to show the difference between the reason of brutes and that of humans, and that there is the same snake in the grass which we detected above when we were discussing theoretical and practical faculties, I also do not know whether this distinction would be of much use to us, even though we may tolerate it with respect to the object of intellectual activity.
§49. But just as the intellect judges on the nature of things and their relationship to man, so the will determines what is to be done by man. And this decision of the will follows immediately from either the first operation of the intellect or the second. The first of these desires directly; the latter chooses. You could thus describe the former as appetite, the latter as choice or as will in the strict sense.
§50. The first motions in the sensitive appetite, as it is commonly described, concern the simple appetite, while the other motions of the sensitive appetite, as well as the whole rational appetite, pertain to choice by the will.
§51. The ordinary process of reasoning and of the actions of man is therefore as follows. After external objects have affected the external senses, there follows the first operation of the intellect. This is received by the appetite, which either directly commands the locomotive power or passes the matter on to the second operation of the intellect to be considered, and after that chooses and impels the locomotive force, etc. From this it is clear that the axiom “Nothing is in the intellect which was not in the senses” is true without limitations, as is the following: “There is no desire for something that is unknown.”
§52. Since, therefore, man lives, is nourished, grows, moves from one place to another, feels, understands, and wills, it must be determined which human actions are subject to a law. In sum, those that are subject to the decision of man. But these are not the actions usually attributed to the vegetative soul, nor are they the passions of the external senses, the first
[print edition page 70]
operation of the intellect, or the first motions of the appetite. The remaining actions, therefore, which are controlled by the decision of man are the passing on of a decision to the second operation of the intellect, in some sense the second operation of the mind itself, and the choice following it, as well as the locomotive powers.
§53. Yet the common statement that “the sensitive appetite is subject to the command of the will” does not hold true for its first motions, just as the common argument that the locomotive power always depends on the decision of man is not true. The exception here is the locomotive force which man uses instinctively to ward off imminent harm to the body, although the locomotive power of brutes also differs from this, since it is devoid of thought!
§54. But just as it is certain that in our intellect and especially in its second operation there is a natural rectitude which, given the requisite attention, will not allow us to be deceived in moral matters, so man’s will in the strict sense is entirely free. It is also a true axiom that the will cannot be coerced, although it always desires what is good in general and often is inclined by a peculiar disposition of character, the temperament of the humors, the nature of the climate and soil, the semen, age, diet, health, occupation, etc., as well as by the shape of the organs of the body, habits, passions, and some diseases, and also by the external actions of others; but he must always be guided by the obligation imposed on him by his superior.
§55. Because of this liberty of the will, actions are imputed to man; that is, man is rightly held to be their author and is required to be answerable for them, and the effects of these actions are attributed to him. Therefore, we like the opinion of the illustrious Rachel very much, that there is one beginning of human actions—namely, choice—not four, as is commonly argued—namely, conscience, volition strictly speaking, deliberation, and choice.9
[print edition page 71]
§56. Furthermore, just as human actions are called moral in relation to a law, so the judgment on these actions by an intellect imbued with the knowledge of the laws is called conscience. This is either antecedent to human actions or subsequent.
§57. The antecedent conscience judges either correctly according to the law or erroneously. Therefore, another division of the conscience is into right and erroneous.
§58. Right conscience either knows how to demonstrate its judgment from certain and undoubted principles or draws on commonplace arguments. Therefore, right conscience (for erroneous conscience can only be probable) is generally subdivided into right conscience properly speaking (we will call this demonstrative) and probable right conscience.
§59. The Scholastics added the notion of a doubtful conscience, that is, when the judgment of the intellect is undecided and cannot discern whether something is good or bad and so whether it is to be done or omitted. But this is not a form of judgment. It is the suspension of judgment and therefore not a form of conscience.
§60. More relevant here would be the scrupulous conscience, which is close to doubt, [namely] when the judgment of the intellect is accompanied by anxious fear that the thing which somebody considered good might be bad, and vice versa. This belongs more frequently to the erroneous conscience than to the right conscience.
§61. The rules, however, which the learned have formulated as guidance for the states of conscience we have talked about either follow automatically from what has been said above or else they are obscure and doubtful.
§62. Subsequent conscience, insofar as it approves correctly what has been done or condemns wrongdoing, is subdivided into tranquil and restless, or, as we say in German, a good and a bad conscience.
[print edition page 72]
§63. Opposed to the voluntary actions of man, which are also called spontaneous, are the actions performed against his will. These are so partly because of a deficiency of the understanding, partly because of a defect of the will.
§64. To the understanding are opposed ignorance and error. Either of these defects is vincible or invincible, and it is either efficient or concomitant. All these points are clear from the standard books on ethics.
§65. Opposed to the will are coercion and fear. Fear is described in various ways, depending in part on the person causing it (whether he has the rightful power to instill fear or not) or on the person suffering fear (whether he is a constant man or not).
§66. The above allows us easily to formulate a response to particular questions concerning the imputability and morality of human actions and the degree to which they can be subject to laws. (1) Actions that are committed by one person, as well as operations of other matters of whatever kind and events of whatever kind, cannot be imputed to another person, except insofar as he can and is obliged to influence these or insofar as he has anything to do with them.
§67. He has something to do with the actions of others if he furthers them, commands them, consents to them, gives the persons performing the action a guarantee, or participates in their profit, gives advice, praises, assents, does not forbid, or hinder, or dissuade, and does not make known when he is obliged to do any of these things.
§68. Thus the actions of others can be imputed to these people, although it is imputed to the former primarily, to the latter secondarily. More on that in its proper place.
§69. (2) If it is not in the power of a particular person to determine whether what is in him or is not in him is there or is not there, this cannot be imputed
[print edition page 73]
to him, unless he did not apply the obligatory diligence in ridding himself of defects and introducing what is free of defects instead.
§70. (3) He who does not have an occasion to act and is not responsible for it will not be blamed for his failure to act.
§71. (4) Those deeds that are perpetrated as a result of invincible and efficacious ignorance or error are not imputed. But where ignorance or error is only concomitant or vincible the action is imputed. One example is the ignorance of laws that have been properly published.
§72. (5) The error of a third person, be it vincible or invincible, cannot be blamed on another who is not guilty of the error of the third person. In such a case it is more equitable for the erring person to be blamed.
§73. (6) Those actions that are beyond the powers of a person are not imputed, except insofar as he is responsible for the fact that they are impossible actions. Here the rule applies that nobody is bound to perform impossible actions.
§74. (7) Those actions to which a person is coerced are not imputed.
§75. (8) 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 in relation to himself and in the chapter on the duty of man concerning promises.10
§76. (9) The actions of men lacking the use of reason are not imputed to them.
[print edition page 74]
§77. (10) In a human court it is very rare for actions committed in sleep or in dreams to be imputed.
§78. The author of law is either God or man. The former exercises his command by virtue of his right of creation independently of the consent of man. Man acquires the right to command either immediately through a divine concession or via the consent of another human. From this follows the first division of law into divine and human.
§79. Opposed to laws is their modification when the command itself is abolished either wholly or in part, and dispensation when one or the other of the subjects is exempted from a law which otherwise would pertain to him and from its obligation while the law remains in force for all others.
§80. Therefore, those people are mistaken who confuse dispensation with restrictive interpretation.
§81. Only the person who can pass a law can change it and grant dispensation from it.
§82. Right, understood as an attribute of a person, is an active moral quality conferred by a superior, which enables this person either rightfully to receive something from some other person with whom he or she lives in a society, or to do something.
§83. That is called an active moral quality which extends the liberty of man, even though it is sometimes used to describe a passive physical experience, for example, the right of a beggar to receive alms. It is opposed to a passive moral quality which restricts the liberty of man, which is what an obligation does, even though this restriction often denotes a physical action, for example, the obligation of the rich man to give alms.
§84. In explaining the origin of right the learned are either silent or disagree in strange ways; some argue that nature produces right, others say
[print edition page 75]
that it is law; some say it is property, others consent, and others again say that it is one of these two.11
§85. We must first of all distinguish the right of God and that of humans. The former is a right only by analogy and is very different from the right of humans. For God has this from himself through Creation. But the right of humans must ultimately be derived from the will of God, and in general from the will of a superior, which produces a right insofar as it increases liberty and, insofar as it restricts it, is called a law and is the origin of obligation. Consent on both sides is only an occasional and nonessential cause. Nature considered physically is irrelevant here, as is property, which is already a form of right.
§86. Right pertains to a person. A person here denotes a human being considered in his state [status]. A state is a quality which affects man and according to which his right varies.
§87. A person is either simple, that is, a single human individual, although he may participate in several states, or composite and formed by the union of several individuals in a particular state. The latter is called a college, society, university, etc.
§88. Thus, we will not discuss the right of God and of angels because that is not relevant here.
§89. By the word something in the definition of a right I mean a corporeal creature in general, be it human or inferior to man, be it a substance or an accident, something which is traded or which is not traded. Thus, again, neither God nor angels are relevant here.
§90. This right is demanded from another human with whom one lives in a society. For man alone is the immediate and primary object of right.
[print edition page 76]
§91. A society is a union of several humans for a certain end.
§92. Nevertheless, the term society is understood so broadly that it includes the society between God and humans in an analogical sense.
§93. Society in this broad sense is divided into unequal, which is that between persons who are different in kind and one of whom commands the others; equal, which differs from unequal societies in both respects [i.e., they are between persons of the same kind, none of whom commands the others], and mixed, which exists between persons of the same kind, one of whom commands the others.
§94. The only unequal society is that between God and man. Human societies are either equal or mixed.
§95. Human society is either natural, toward which man is led by divine command or by the concern for the utility of all humans, or conventional, which humans enter into for the sake of a particular benefit.
§96. Since these forms of particular benefit vary in infinite ways, conventional societies, therefore, are infinite in number. Natural societies are divided into simple (that is, conjugal, domestic, and paternal) and composite.
§97. Simple societies are the direct components of the house or the family. Several families compose a village, a district, a city, or a commonwealth. What consists of several villages is called a commonwealth or a province. Finally, a society composed of several commonwealths is a society of nations.
§98. Among the natural societies this last one is the only equal society [in the time] after original sin. Among conventional societies there are several examples of equal and of mixed ones.
§99. These points had to be made because of the various disagreements among the learned. Some of them clearly ignore the first division of society [into equal, unequal, and mixed]; some confuse unequal with mixed
[print edition page 77]
societies; some consider divine society to be a form of equal society, while others deny that it is relevant for civil life. Some consider all societies to be unequal; others consider all to be equal. Some ignore the other division of societies [into natural and conventional], while others either reject natural society or do not describe it correctly. And some define the village and the commonwealth differently or say something different about the society of nations.
§100. I return to the definition of right and put forward the following axioms: (1) Outside a society there is no right.
§101. (2) In every society there is right.
§102. (3) In an unequal society right lies only with the superior. In an equal or mixed society right is common to both sides.
§103. The terms to have and to do in the definition of right are related to the division of right into perfect and imperfect, even though others are of a different opinion.
§104. First, right12 is of course divided into perfect, which Grotius calls a faculty, and imperfect, or an aptitude, as he has it. The former is the power by which I can coerce another who does not want to fulfill his obligation to render what is due. The latter is a different matter. Here the fulfillment of the obligation is left to the shame and conscience of the person who has the obligation corresponding to this right.
§105. The means of enforcing a right is called war, if it takes place among those who live in the state of nature. Among those, however, who live in civil society, it is called punishment or legal action.
§106. The point of this division, according to Grotius, is that strict justice corresponds to faculty and attributive justice to aptitude. But just as
[print edition page 78]
this great man was wrong in presenting his strict justice as identical to commutative justice and his attributive justice as identical to distributive justice in Aristotle’s sense, so we would feel more comfortable without this Grotian division of justice [into strict and attributive], even though we could tolerate it. For it is not useful to us in any way and does not add anything to our division of right, and we would feel even happier if we could do without the Aristotelian division of justice, which is more suited to torturing minds than to educating them.13
§107. We would rather like to look for the particular usefulness of perfect and imperfect right by asking what violation of a right should lead to a legal action in a civil society and above all by determining by what right the prince may take up arms against someone who is inflicting harm on him.
§108. Therefore, we must briefly explain the signs indicating the two rights [perfect and imperfect], for Grotius does not discuss these. These signs, however, vary according to the different kinds of societies. (1) In an unequal society the only superior, that is, God, has a right over man and this right is perfect.
§109. (2) Among those living in an equal society the right that is part of natural liberty and which gives rise to agreements, and in general every right except that concerning the duties of humanity, is perfect.
§110. (3) In a mixed society the right of the superior over his subjects is always perfect, even with respect to the performance of the duties of humanity.
§111. (4) On the other hand, the right of subjects over superiors as such, even if it is based on pacts, is normally imperfect.
[print edition page 79]
§112. I said “as such” to avoid the objection that a wife, children, and servants sometimes have the right to legal action against the paterfamilias.
§113. I also said “normally.” In extraordinary cases the prince grants his subjects the right to a legal action against himself, though these are legal actions only in an improper sense. They are certainly not coercive remedies.
§114. Second, with respect to the source from which right is derived it can be divided into connate, which man has immediately from God without the consent of the person who is placed under an obligation (the power of parents, for example), and acquired, which belongs to him on the basis of an agreement with another, such as sovereignty.
§115. Third, a division of right, or rather of faculty in particular, derives from the object. For the object of right is either the actions of others or the things belonging to others—actions insofar as I direct them (which is called authority [imperium]) or insofar as they do not interfere with me.
§116. I say “insofar as they do not interfere with me.” This refers either to my personal actions and is called liberty, or to the use and disposition of my physical possessions, which is called property.
§117. The things of others are the object of right in that either the thing itself is the principal subject of consideration and the other person the secondary subject or the person is the principal subject of consideration while the thing is the secondary subject. We will call the former a right in a thing, the latter, credit.
§118. The thing is the principal subject of consideration when the person, whoever it is, possesses this particular thing and is under an obligation to me. The person is the principal subject of consideration when a certain individual is required to give me a thing, whether he owns it or not.
[print edition page 80]
§119. In other cases the terms authority, liberty, etc., are understood in a different sense. For the term authority is also taken in a broad sense and is applied to property. Thus Grotius granted the authority over the sea to a commonwealth. Likewise, we speak of authority over a territory, etc.
§120. Liberty is also understood as a natural ability of humans to do what their physical powers allow them to do, without consideration of other humans. And then it is not a form of right, but sometimes even its opposite.
§121. It will be more appropriate to discuss the various meanings of property, right in a thing, and credit in connection with Roman jurisprudence.
§122. Fourth, the faculty of those living in civil society is either common or eminent. The common faculty is that of the subjects, the eminent that of him who holds power in the commonwealth over the things and persons in that commonwealth.
§123. This distinction can be applied to the above. For liberty is either eminent, which is otherwise described as liberty of the ruler and coincides with sovereignty (unless you wanted to say that liberty concerns the prince himself, sovereignty the relation of the prince to those below him), or it is common liberty, which is also called personal liberty.
§124. Concerning the distinction of authority into eminent and common, I do not think there can be any doubt what kind of power of command the head of a household enjoys.
§125. However, disputes have arisen over eminent property rights. We do not see a sufficient reason for abandoning the division of property rights into eminent and common.
§126. It is the same with the right over a thing and credit.
§127. The usefulness of this distinction is evident from the following rule: “whenever common right conflicts with eminent right, the former must
[print edition page 81]
invariably give way to the latter.” This is clear from what has been said about perfect and imperfect right, and can easily be demonstrated by inductive argument from examples of liberty, authority, etc.
§128. We should finally [fifth] add that division according to which right is either natural or that of nations or civil. But in truth this is the same as the division of right into connate and acquired, apart from the fact that it has three elements.
§129. For the right that takes its origin immediately from the will of God is usually called natural right [ius naturalis]. That which is produced by an agreement between different nations is called the right of nations [ius gentium]. Finally, what is derived from the will of a human sovereign is termed civil right [ius civilis].
§130. Accordingly, liberty belongs to natural right. Property, contract, and servitude are matters of the right of nations. Legally binding promises and in some sense the power of the head of household are said to belong to civil right.
§131. Yet we must beware of confusing these meanings of the term right with the division of law [lex] into natural law, the law of nations, and civil law, especially as this confusion is not uncommon among jurists and moral philosophers.
§132. This observation is of use in many questions, as will be shown in its proper place. The particular reason for avoiding the confusion [between right and law] is that the right of humans, insofar as it is a faculty, can be changed completely by a superior, even if it is a natural right or part of the right of nations. We will explain below that the opposite is true of natural law and the law of nations.
§133. Related to this observation is the well-known rule that “everybody can renounce his right,” though I believe that this must be qualified as follows: “unless this right is a necessary means of fulfilling an obligation.”
[print edition page 82]
§134. The correlate of right is obligation. Obligation is a passive moral quality, imposed on a person by law and restricting his liberty by forcing him to give something to or do something for another person with whom he lives in a society.
§135. This definition can be explained largely with the comments we have made about right. Yet it has to be noted that the restriction of liberty, which is the essence of an obligation, is nothing other than an act of reasoning that is based on knowledge of a law prescribed by a superior and informs a person of the anger of this superior and the punishment that will follow if the law is broken.
§136. This makes it clear that there can be no obligation without a superior, and least of all one without God. Whence again it follows that obligation does not properly speaking have its origin in agreements.
§137. Giving and acting differ as follows. To give is to transfer property. Acting comprehends all other actions and the failure to perform an action.
§138. There are as many types of obligation as there are types of right.
§139. For in correlates, what applies to one also applies to the other. Thus it follows necessarily that all obligation toward a human being is mutable, be it a natural obligation, an obligation of nations, or a civil obligation.
§140. Obligation is changed in some cases by the will of a superior, if he abolishes the right of the person to whom the obligation is owed, and in some cases by this person’s spontaneous renunciation of his right.
§141. Beware, however, of confusing a law that imposes an obligation with the obligation which is the result of the law. For even if the latter is mutable, the law can still be immutable.
§142. Grotius adds a third meaning of right to the two we have mentioned so far. He argues that it is also applied to the attributes of an action. But
[print edition page 83]
this meaning pertains more to what is right in a particular case than to the concept of right.
§143. An action, however, is right [actio justa] in general if it is either commanded by a law or is permitted; and it is permitted either because a person has a right to it or because there is no punishment for it.
§144. For a just or honest action is, to use Grotius’s expression, just in the positive sense if it is commanded by the laws, or permitted, that is, just in the negative sense, when it is not prohibited by the laws.
§145. A permitted action is either perfectly, fully, ethically, and internally permitted when it is based on a faculty pertaining to a person, or imperfectly, not fully, politically, and externally permitted when it is contrary to law, but not punished in a human court.
§146. These just actions can be compared with each other with respect to the law: an honest action is one that is according to law; an action that is tolerated, but not fully permitted, is contrary to law; and a fully permitted action is not contrary to law. Or they can be compared with respect to the legislator. No action is incompletely permitted to God, though this can be the case with regard to the prince.
§147. This meaning of a just action is compatible with the preceding two meanings of the term right because it comprehends each of these two [that is, law and the faculty of a person] within itself. It differs, however, insofar as the term right there is discussed in an abstract sense and directly, while here [i.e., in the case of a just action] it concerns a specific case or is discussed indirectly; it also differs insofar as the meaning of a just action is less strict and includes an action that is tolerated, which pertains neither to a law nor to a faculty.
§148. But just as the term a just action is taken in a threefold sense, so the expression “an honest action” is sometimes predicated of an action that is fully permitted, so that the term a permitted action is often extended to an honest action.
[print edition page 84]
§149. And although the terms permitted and authorized are almost synonymous, the scope of permission is wider than that of authorization. Permission is either a matter of fact, which only indicates the removal of an impediment but has no effect on the rightfulness and does not lead to an authorization; or it is a matter of right, which guarantees a secure conscience, or at least freedom from punishment. It is then either a full or an imperfect authorization.
§150. The opposite of a just action, the unjust action, can be taken in a broad sense to describe everything that is contrary to law. It then includes any action that is not fully permitted. Or it is taken in a strict sense and is distinguished from this action, which is then said to be dishonest, despicable, and not permitted, though the terms “dishonest” and “not permitted” are subject to the same ambiguities we have pointed out in our discussion of honest and permitted actions.
§151. An unjust action is also described as an injury, but an action tends to be described as unjust with reference to the legislator and as an injury with reference to the victim. This is the origin of the rule that “a person does not suffer an injury if he agrees to it.” And an action can be unjust even if there is no injury.
§152. In other cases the term injury is either understood very broadly as anything that is not done rightfully, even by those who have no intention of harming, or broadly as the denial of any right, either perfect or imperfect, or it is understood strictly as the denial of a perfect right, or very strictly as a personal insult.
§153. Finally, not only the action but also the human being is called just and unjust. An action is called just or unjust depending on whether the external actions of a person conform to law. A person, however, is characterized as just or unjust depending on the intentions behind his actions.
§154. Which of these many meanings of right is relevant to jurisprudence? All of them, in some sense. Jurisprudence not only instructs us how laws are to be passed, explained, and applied, but also explains the nature of the
[print edition page 85]
faculty belonging to any particular person by right and provides means of protecting and preserving it. It also gives advice on how actions are to be undertaken according to law so that they turn out just, and it judges those that have been undertaken to determine whether they are just or not. And it does all this with the intention that men may become just.
§155. At the same time it is evident from what has been said that the principal object of jurisprudence is the laws and that the other meanings are applicable only secondarily and with reference to the laws.
§156. Thus jurisprudence in its widest sense is nothing other than an understanding of the laws.
§157. When laws are to be passed, or actions to be initiated according to them, jurisprudence is described as legislative or advisory. But when laws are to be applied to past actions, it is called judicial. Giving advice on actions which are to be directed according to laws and judging on actions that happened in the past presuppose the interpretation and understanding of laws.
§158. Legislative jurisprudence is not relevant to our purpose. Advisory jurisprudence bears some relation to our aim, but we will mainly discuss judicial jurisprudence since this also presupposes the advisory variety.
§159. Judicial jurisprudence, therefore, is the prudence required in explaining laws concerning the well-being of man in this life and applying them to the actions of humans.
§160. This definition is clear from the above, but you must note that jurisprudence, which is an intellectual faculty [habitus], must not be confused with the actual explanation and application of laws. If these actions are based on prudence, they are classified as habits of the will and are to be considered partly skills and partly moral virtues. They may even be considered a vice when they are used to harm other people.
§161. There are, therefore, two parts of judicial jurisprudence: the interpretation of laws, which you could for the sake of distinguishing it term the
[print edition page 86]
jurisprudence of professors and doctors of law; and the application of laws, which is the jurisprudence of advocates and judges. Here we are referring to both, but in these Institutes we are concerned primarily with the former. The latter we will examine when discussing the resolution of controversies that are taken from ancient and modern history.
§162. There will, however, undoubtedly be as many kinds of jurisprudence as there are kinds of law. Therefore, we will be correct in dividing jurisprudence into divine and human. The former tells us how to explain and apply divine laws, the latter how to do so with human laws.
§163. To avoid meddling in holy theology, we added a limitation to the definition of jurisprudence, saying that it pertained to the laws concerning the temporal well-being of man. We need to expand on this in a little more detail.
§164. I am assuming that our academies at present are usually divided into four faculties, that is, theology, law, medicine, and philosophy, though a fifth or even sixth faculty has been added to this in some places.
§165. I assume, moreover, that philosophy, which now constitutes a separate faculty, is understood in a far narrower sense than it once was among the Greeks and Romans. There it was indeed the knowledge of divine and human affairs, that is, the contemplation of all those things which could be derived from sound reason, which meant that it embraced medicine, jurisprudence, and a large part of pagan theology.
§166. The point of this observation is mainly that we should not confuse the properties of ancient philosophy, which acted as the queen, with present-day philosophy, which is left with nothing but the function of an honest servant. See, for example, that well-known phrase of Plato that commonwealths will be happy when philosophers rule or rulers philosophize, etc.14
[print edition page 87]
§167. Thus it seems most appropriate to explain the distinctions between these four faculties as follows. The faculties are either subordinate [instrumentales], that is, philosophy, or principal [principales], that is, the remaining three.
§168. The principal faculties either have as their object the body of man and aim for its health, which is what medicine does, or they strive to care for the human soul and its happiness.
§169. That is, its temporal happiness, which is the object of jurisprudence, and its eternal happiness, which is that of theology.
§170. Yet, the main means of obtaining human happiness, as the philosophers generally admit, are laws. It is, therefore, obvious that the explanation of laws, depending on the kind of happiness which they serve, pertains sometimes to the jurist, sometimes to the theologian. This will be discussed more clearly in the following chapter.
§171. From this follow the order and the ranking of the four faculties, as this has been accepted among us and defended in published writings. Hence it will be easy to respond to those who want to start a controversy with jurisprudence on that account.
§172. Those who are competent at jurisprudence are called jurisprudents or jurisconsults. Whether there is a difference between them and the jurisperiti15 is the subject of acrimonious debate,16 but that debate does not seem important enough to detain us.
