Читать книгу Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations - Christian Thomasius - Страница 13
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§1. Divine jurisprudence is the prudence that is required for explaining the divine laws concerning the well-being of humans in this life and for applying them to the actions of humans.
§2. All of this is obvious, as long as we explain which divine laws have the temporal well-being of man as their object. But that will be clear from the division of divine law.
§3. It is generally taught that divine law is moral or ceremonial or forensic. We have said elsewhere why we are dissatisfied with this division.17
§4. We say that divine law is either natural or positive. The others say so, too, but in doing so they mean something different.
§5. The paramount question here is, in what respects are these two kinds of divine law similar and in what are they different? The following points will elucidate our opinion.
§6. (1) Divine positive law agrees with natural in that God is the author of each of the two, or, if we want to be more precise and speak of God in human terms, the divine will is its author.
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§7. We do not accept the argument that natural law took its origin from the sanctity of God antecedently to his will while positive law did not. For everything that is in God exists there simultaneously.
§8. Man is not permitted to form a conception of God since such a conception involves imperfection.
§9. Thus we cannot speculate about God, mainly because of our imperfection, and it is therefore impossible to consider our ideas of God to be true or to acknowledge them as a foundation on which conclusions in a factual discipline, such as jurisprudence, should rest.
§10. (2) Natural law and divine positive law converge with respect to the condition of man to which they apply. For each binds man in the state of innocence and after the fall.
§11. For the first division of the state of humans is that between man in the state of innocence and man after original sin. It will not be fruitless to examine each of the two a little more carefully because the usefulness of this meditation will soon become apparent.
§12. We will begin, however, with the state of innocence since it is prior in terms of chronological order and more excellent, if we are allowed to do so. For we need to beware of meddling in theology. We explain jurisprudence as a faculty [habitus] that is to be acquired by our natural powers, as we have said above. Whatever we know about the state of innocence, however, we know from Sacred Scripture.
§13. Therefore, we either have to stop here or we must see how we can extricate ourselves from this difficulty. What if we said that this state of perfection was known to pagans, too? Indeed, there are countless testimonies of Greek and Latin philosophers and poets to this effect.
§14. Yet I fear that this will not be enough. Pagans knew of the state of innocence but only had a very confused notion of it. They knew about
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it, not from the dictate of reason, however, but from their contacts with the Jews.
§15. Therefore, we need to try another approach. Perhaps we Christians are privileged over the pagans. They were not allowed to interfere in theology because they only taught jurisprudence. But we go further, for what we teach is Christian jurisprudence.
§16. But here again the theologians guarding the borders of their discipline will tell us to retreat and not to climb over the fence that separates our discipline from theology. The term Christian jurisprudence will be suspect to them, because if by this we mean a discipline that borrows its principles of proof from theology, it will be vain for us to try to cover up our trespassing with a few slogans, especially as far as natural jurisprudence is concerned. But if we restrict our proofs to theological matters, our Christian jurisprudence will not deserve its name any more than, for example, arithmetic is a Christian arithmetic because its principles allow us to calculate how many measures of wine filled the vessels at Canaan.18
§17. Therefore, we halt, especially as we know a way of avoiding this problem. For just as arithmetic, for example, does not encroach on theology, even though it applies its own principles to examples from sacred history, so we will not sin if we apply our principles to the state of innocence. It is one thing to borrow principles of demonstration from another discipline, another to apply these principles to an object taken from another discipline.
§18. And this is especially true of history, which, whether it is sacred or profane, is used by all four faculties.
§19. Thus, it is permitted to talk about man’s state of innocence, but only on the basis of sacred history, for the traditions of the pagans or the rabbis in that respect are mere trifles.
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§20. This state of innocence was perfect since in it man was created in the image of God. Therefore, the miseries which accompany the corrupt state today were absent.
§21. The human body was certainly endowed with the same members as a healthy person is today, and there was the same distinction of the sexes. And the members of the body would have been directed by the soul, immediately from creation in the case of Adam and immediately from birth in his children. We are not really concerned about the size of humans in the state of innocence since that adds nothing directly to human perfection.
§22. Moreover, man would never have died or fallen ill. He would always have enjoyed the most wholesome food and drink. Digestion would have been excellent. Poison would not have harmed. Whether man would have eaten meat in that state is an idle rather than a useful question. I believe he could have but cannot imagine that he would have wanted to.
§23. The sense organs were, as far as we can imagine, perfect and completely reliable. There would have been the pleasures of the senses, but subject to laws. Thus, there would have been the pleasure derived from touch in that it can be based on physical causes and anatomical principles, but not the kind of pleasure that causes man to lose self-control and is called lust. Humans would have enjoyed powers of locomotion immediately from birth, and these would not have been disturbed or impeded [by illness].
§24. Concerning his intellect, man would not only have been so perceptive in natural matters that he would have recognized at first sight the natures, qualities, and forms of created beings, which today are concealed from us or are barely perceived even after the most laborious research. In moral matters, too, man would have possessed supreme prudence in understanding law and its significance for his actions. Thus we must criticize the belief, defended by Grotius and others,19 that the Protoplasts were
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simple-minded and ignorant of vices rather than being endowed with the knowledge of virtue. This belief would also be an insult to God.
§25. And I do not see any reason why I should think differently about infants. They would indeed have been able from birth to reason with their parents on any subject whatsoever and would only have required a very brief period of time to be informed of the meaning of words which had their meaning from the imposition of man, not from the nature of the thing itself.
§26. The will enjoyed a great degree of liberty. Man could choose between sinning and not sinning but was more inclined to not sinning.
§27. Moreover, man in the state of innocence was not for one moment outside a society, but was joined immediately in a society with God, which was unequal but in which there was greater love and trust than can today exist in any paternal society.
§28. Man, however, by his nature desired something similar to himself, but did not find this similarity in God, because divine perfection was too distant from him, and thus it was not good that he was alone. Therefore God, in his supreme benignity, created a female companion for Adam, that is, Eve, whom he created from his rib (which yet was not superfluous in Adam, and its removal did not mutilate his body) and gave to Adam in matrimony.
§29. This society in the state of innocence was supremely equal, for only after the fall the power to command was transferred by God to the husband in order to punish the wife, and before the fall the common cause of subjection, imperfection, could not be attributed to Eve.
§30. The Apostle teaches that it does not befit wives to rule over their husbands, and he uses the argument that Adam was created earlier than Eve.20 But one cannot infer from this that in the state of innocence Adam commanded Eve because Eve could not command Adam.
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§31. The argument put forward by others, that the husband is superior to the wife in dignity and power because God intended to create the wife to complement the husband and not vice versa, establishes a priority of order but not a superiority of dignity or power, as can easily be shown with the example of a society of merchants.
§32. Such was the society of the state of innocence; would it have continued to exist if man had not lost his integrity? Some have thought so and denied that paternal society would have existed in the state of innocence. This has recently been argued among the English by Thomas Hobbes, who made bad use of his intellect, and among the Dutch by that horrible author Adriaan Beverland.21
§33. We not only defeat those authors with the words of the divine benediction: “go forth and multiply,” but rout them by pointing out the shape of the human body and the members destined for procreation.
§34. We believe, however, that this society too would have been equal, but would have differed from conjugal society in that children would have had to show reverence toward their parents not so much because of a priority of order, but because they received the benefit of procreation from them.
§35. For the debt of reverence does not presuppose the imperfection implied by subjection, and the cause of paternal rule, as will be shown in its appropriate place, would have been absent in the state of innocence.
§36. But the domestic society of masters and servants [servi] would certainly have been absent from the state of innocence. For the economic need, which introduced this society both on the part of the master and the slave, would not have existed in the state of innocence, not to mention the division of property.
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§37. And would there have been a commonwealth? That will become clear if we consider the structure of the commonwealth. It consists of the power to command, which is directed to preserving public peace and the sufficiency of all things. We have already shown that there was no political power in the state of innocence. And power would not have been necessary to obtain either peace (since there would have been no fear) or sufficiency (since there would have been no lack of anything).
§38. But they who argued for the existence of a commonwealth in the state of innocence confessed almost unanimously that they did not mean a society with power in the proper sense. Thus, some distinguished between directive power and coercive power. But by doing so they admitted that there was no power [in the state of innocence], because a directive power is like a cold fire.22
§39. Then follows the state of fallen man. Here many things were altered. The organs of the body required some time before they were able to exercise their powers of locomotion and to be guided by the soul. Death enters the world; various diseases precede and further it; digestion is often poor; man must beware of poison; food must be prepared with various artifices so that it does not inflict harm; the sense organs of humans frequently deceive; the intellect has become much less acute. In infants it is like a clean slate, suitable to receiving any impressions whatsoever. The will of man has lost much of its liberty and is inclined almost wholly to evil, because the passions very frequently rise up and make man lose control of himself and in any case are perpetually straining at the leash.
§40. We believe that these changes in man have been so great that it is absolutely impossible for man to correct these imperfections in the present life by natural means.
§41. If he could do so, it would be in his power to rid himself of original sin or to evade divine punishment. Either of these, however, is absurd.
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§42. Insofar as the intellect is concerned, however, perfection did remain to the extent that man could recognize the common rules and precepts, above all those of the law of nature that are relevant to the will, which was inclined toward evil, but in such a way that it retained at least the liberty of constraining external actions effectively.
§43. Moreover, if we look at the changes with respect to societies, in divine society today there is no longer the face-to-face conversation with God, nor is God only loved as a benign father; he is also feared as a just judge. Conjugal society has been turned from an equal into a mixed society, as a punishment for original sin. The power to command was introduced into paternal society for the sake of education. The curse on the soil and the resulting division of property produced the society of masters and servants, and the fear of external violence led to the foundation of cities and commonwealths.
§44. The state of innocence is also called the state of right nature [natura recta], and the state after the fall from grace that of corrupt nature. Yet we must note that here by corruption we do not mean moral corruption with respect to external actions, since that description pertains either to the physical corruption of man or, at least, to the moral corruption of the internal actions that strongly incline to sin against the laws.
§45. Thus the postlapsarian state is still right to some extent, and the sinful external actions in that state do not reflect the defects of the state but of the humans living in it.
§46. Hence, you should also note the following ambiguity: corruption is opposed either to the state of innocence or to the postlapsarian state, to the extent that this latter state is still uncorrupt; in that case it refers for example to the condition of thieves, etc.
§47. There are many more different meanings concealed in the term natural state. We know of the distinction between the natural and the legal states of man, which is explained in different ways by different authors
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but is usually interpreted to mean that the natural state was that of man flourishing in the state of innocence; the legal state, however, that of corrupt nature. And this distinction is commonly applied not only to individual humans, but also to human societies, above all to civil society. And apart from that its use in solving several political controversies is often emphasized.
§48. We have done so, too, in another place.23 But now we have changed our opinion, in part because the natural state [in this sense] presupposes the existence of a civil society in the state of innocence, and we have just demonstrated the opposite; in part because those [political] controversies can be solved, if not better, then equally well, if we direct our attention exclusively to the legal state.
§49. Almost any beginner will know how much political theorists have criticized the natural state of Hobbes, which he insisted to be a war of all against all, and how much he opposed the social state to this. Pufendorf’s comments in various places against this state of war deserve to be read here.
§50. The state of man after the fall from grace can be described as natural in many respects. This will be clear from the following distinctions. The natural state initially describes a condition common to all humans that distinguishes them from the beasts also after the fall from grace, namely, that they are able to reason and to acknowledge a supreme legislator and direct their external actions according to his precepts. This state is opposed to the life and condition of beasts or to the life of humans abusing this state and following the dictates of their corrupt reason in every way.
§51. This natural state can, second, be subdivided conveniently into a natural state and a social state, the former understood as the condition of humans that would obtain if man, after the fall, from birth had been
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left to his own devices and not enjoyed the help of other humans; and the latter, the social state, understood as the condition of humans living a life that is improved by the efforts of others.
§52. And this natural state and social state are not to be confused with the natural state and the social state of Hobbes. Even though we may be using the same terms, the substance is very different. For in his theory of the natural state Hobbes considers man to be in opposition to other humans, and he wants this to be a state of war of all against all, none of which fits with our natural state.
§53. The social state is, third, either natural, that is, the condition of humans living in an equal society who do not have a common lord and in which no one is subject to another, or civil, which is the state of those who live in a civil society and in the other minor societies comprehended within a civil society.
§54. The natural state in this sense must not be confused with that of Hobbes. Hobbes’s state is one of war and opposed to the social; ours is peaceful and social.
§55. And, fourth and finally, the civil state is either natural, that is, a condition which man has by nature and without any human action (for example, being a man, being an infant, etc.) or it is adventitious, that is, a condition which man has as a result of human imposition (for example, being a consul, a nobleman, a peasant, etc.).
§56. Yet we believe that it is justified to apply the term natural state to all these meanings. In the first meaning the term is based on the essence of man, in the second on the misery accompanying the nature of postlapsarian man, insofar as he is left to himself; in the third it rests on the natural liberty and equality of humans, and in the fourth on the properties, mainly the physical properties, which man has by nature.
§57. Yet if someone wanted to call the first type of a state of nature the state of humanity, that of the second the condition of solitary life, and that
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of the third the state of equality, we will accept that, since we do not want to argue over words.
§58. These four natural states can be compared with each other with respect to their actual existence. The first exists or at least should exist in all humans. The second is not common, but it can exist, for example, if a single man is cast ashore on an uninhabited island after surviving a shipwreck; and it exists, for example, in the case of infants exposed by parents. The third is very common, for example, among nations in their mutual relations. About the existence of the fourth, however, there can be no doubt.
§59. Thus, those people err who believe that the state of nature of the second kind is a fictitious state or that the misery which we said accompanies that state is fictitious.
§60. But we had a reason for presenting this fourfold meaning of the natural state. The first will be useful in deriving the duties of man toward God, the second in demonstrating the need for a society, the third in comparing diverse precepts of natural law with each other and elsewhere. The fourth belongs to jurisprudence, especially human jurisprudence.
§61. We now return to the argument. We have said that in either state of man, that of innocence and that after original sin, both forms of divine law, natural and positive, had a place. Concerning natural law, perhaps, there is no doubt. Positive, revealed law in the state of innocence was that which prohibited eating from the forbidden tree, as well as the prohibition of polygamy and divorce when marriage was originally established. In the state after the fall from grace there are various positive laws, about which more will be said later.
§62. We are, however, trying to explain the divine laws to the extent that they are relevant to jurisprudence. I therefore believe it is evident that we are primarily concerned with those laws which govern the postlapsarian state. For jurisprudence must explain the laws which are to be applied to
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human actions subsequently [to the state of innocence]. We are not, I believe, judging our first ancestors [that is, Adam and Eve], we are not their lawyers, and we are not concerned with their actions, but with humans of this age who retain only remnants of the original felicity. If only they can preserve these, that is enough for tranquillity in this life.
§63. Now let us see the differences between these two laws. Usually authors look for the difference in the fact that natural law binds all humans, while positive law binds only the Jewish people. But it will be clear from the following that this is not sufficient.
§64. (1) For a start natural law and divine positive law differ in their principles of knowledge: in natural law this is right reason; in divine positive law it is divine revelation.
§65. The proof of this difference is derived from the second difference. The Apostle Paul recognized this difference exactly, and this is clear in part when he said that those nations that did not have the positive law did by nature what was according to natural law, and in part because he declared that he would not have known from reason alone that concupiscence is a sin, unless the divine positive law had said, “Thou shalt not covet.”24
§66. By right reason I here mean a natural faculty of reasoning or deriving true conclusions from true first principles. But as is obvious to anyone, man has this faculty from birth as a potential. This is suitable for exercising his powers if, with the input from the senses, the ideas have first been formed by the intellect and the same potential has later been exercised in human society.
§67. Therefore, we cannot but laugh at the excessively subtle meditations of the Scholastics, who teach that infants have certain practical principles by nature that have the form of a kind of innate faculty, and these tell them what is to be done or omitted according to the law of nature.
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§68. Each practical principle is a proposition. Every proposition indicates whether a predicate does or does not conform to the subject. Yet infants are destitute of the knowledge of terms, especially moral terms, since even adult, erudite humans barely agree on their meaning. Who would, therefore, believe that infants, for example, know that murder is to be shunned and that agreements are to be kept, since they do not know what an agreement is, what murder is, etc.
§69. The Scholastics themselves are unsure whether this innate faculty is only a potential in infants or is already present in them. Some have reached the point of saying that this faculty is neither of the two, but is somewhere between being actually and potentially present. Thus, we have a particularly felicitous solution whereby something is put forward which can both be and not be at the same time.
§70. Even if positive law is derived from divine revelation, it is not permissible to argue as follows: This act, which is commanded or prohibited in Scripture, is recognized as honest or despicable by pagans, too. Therefore, it is part of natural law. For these pagans are either Greeks or Romans. The Romans took their laws from the Greeks. The philosophers of the Greeks borrowed much from Moses. Solon similarly introduced many laws from Egypt to Athens. The Egyptians, however, took the rudiments of their laws from the Hebrews.
§71. (2) These laws differ in that natural law is concerned with actions that either conform necessarily to the common rational nature of man or are contrary to it; positive law is concerned with actions that are neither.
§72. For since it is apparent from natural reason that God wanted man to be rational and also for his actions to be subject to a particular kind of norm, it follows necessarily—to avoid contradiction—that God wanted to command the actions which necessarily further the rational nature of man and to forbid those which are contrary to it. But since there are many actions by which, when they are committed or omitted, the essence
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of man is neither violated nor furthered as such, man will not be able to know how these are regulated. Here the promulgation of a whole other law is required.
§73. I speak of a necessary conformity of an action with reason whenever the omission of an action by humankind would necessarily cause it to perish, and of repugnance to reason whenever humanity would perish as a result of this action being committed.
§74. This difference is interpreted differently by the Scholastics and indeed in various ways. For sometimes they say that what pertains to natural law is actions that are in themselves and by their nature, even antecedently to the divine will, honest or despicable, while indifferent actions pertain to positive law.
§75. Sometimes they say that obligation in natural law flows from the object to the precept; in positive law, however, from the precept to the object.
§76. Yet none of these definitions are that good. You could say that actions determined by natural law are honest or despicable as such [per se] with regard to their immutability. But they apply this expression “as such” to imply that this is antecedent to the act of commanding natural law.
§77. However, they contradict themselves when they say that certain acts are by their nature honest or despicable. In a human action you can consider either its nature or its morality in relation to a law: its nature insofar as it is abstracted from moral circumstances, and morality insofar as the moral circumstances are examined.
§78. Moral circumstances are covered in the common phrase who, what, where, etc.25
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§79. But beware of thinking that, where one or another of these circumstances is present, there is immediately a moral circumstance.
§80. For otherwise you would have the absurd consequence that no action could be considered as a natural phenomenon, since every action certainly involves one of these circumstances.
§81. Thus these circumstances are called moral insofar as a law commands or prohibits a particular action because of these.
§82. And so he who calls certain actions honest or despicable by their very nature says that certain actions are by their nature moral. But he who says so does in fact declare that certain actions, if abstracted from their moral circumstances, by virtue of this abstraction involve moral circumstances.
§83. Further, an honest action is one which is commanded by a law, a despicable action one which is prohibited by a law. A law, however, is the will of the legislator, and the source of all laws is the divine will.
§84. So they who want certain actions to be honest or despicable antecedently to the divine will also want certain actions to be commanded or prohibited by a law that is prior to law.
§85. I know indeed that a distinction is made between honest actions considered materially and formally; they claim that laws are defined materially by us, but that those actions are honest or despicable formally which conform to the dictate of right reason.
§86. Yet I also know that the distinction between material and formal, when applied to moral affairs, is either obscure or superfluous, and in most cases unsuitable. I know that in this respect good in the sense of useful is confused with good in the sense of honest. I know that they define law as a dictate of reason and stick to that error. I know finally that the
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Apostle who defined sin as the transgression of the law knew very well the formal characteristics of a despicable action.26
§87. Finally, how, without contradiction, could obligation diffuse itself from the object to the precept, since the efficacy of every obligation depends on reverence and fear of the legislator?
§88. Thus, are not all actions by their nature indifferent? They are indeed; that is, all physical actions abstracted from their moral circumstances are neither commanded nor prohibited.
§89. Yet you will say that blasphemy and theft, for example, by their nature are not indifferent. I say, however, that these are not terms for action considered with respect to their nature. For blasphemy involves a concept of deliberate choice, that somebody utters certain words expressing disrespect for God. Theft involves the concept of fraudulent removal. And because of these circumstances blasphemy and theft are already prohibited by an eternal law.
§90. If you abstract from these circumstances these actions will no longer be despicable. They will not even be blasphemy or theft. The physical action in blasphemy is the uttering of words which are blasphemous. A witness, for example, when he repeats these words in giving evidence, does not commit blasphemy. In theft physical action is seizing something that belongs to someone else, etc.
§91. Thus, in order to explain briefly what I mean: the Scholastics confuse the natural aspect of an action, that is, an action considered physically, with the moral nature of an action, that is, an action considered morally.
§92. But perhaps we are contradicting ourselves by refuting others. Is it not the same whether you say that the object of natural law is an action which
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is honest or despicable antecedently to the divine will, or you say that there are actions which have a necessary connection with or are repugnant to the rational nature of man? For if we declare that God commanded or prohibited these actions because of such a conformity or repugnance, do we not by that very fact concede that these actions are honest or despicable prior to the divine will? Do we not admit that obligation flows from the object to the precept?
§93. There is, however, no danger of that. It can indeed be inferred from our assertion that those actions that are the object of natural law are by their nature good or bad.27 Yet it cannot be inferred that they are honest or despicable. These actions harm or promote the utility of humankind, even if you abstract from the divine will, but as long as you remain with that abstraction, they are not commanded or prohibited by law, and they do not obligate humanity to anything.
§94. Thus it is certain that particular medicines are very useful for ill people, and some foods on the other hand are highly harmful to them. Yet these medicines or foods do not obligate the sick person to do anything, if you abstract from the will of the legislator. Remove the legislator and it will be true without exception that every person is the sole guardian of his own utility.
§95. Ah, you will cry, I have caught you! When fools avoid one vice they fall into another. According to your opinion, therefore, utility itself is the mother of justice and equity; nor does nature know just from unjust.28 And this is what Carneades declared, what the herd of Epicurean swine has taught, and Hobbes, the Epicurean, has largely warmed up and reheated. Thus there is no natural law or justice, or if there is any, it will be supreme foolishness, because by taking care of the well-being of others, one’s own utility will suffer. If this is not introducing the poison of atheism by deceit, what is?
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§96. Yet I cannot imagine anyone would be so impudent as to accuse us of such a belief when we have tried so strenuously to prove the existence of this very law and of natural justice and its differences from other laws. This is so especially since the utility of individual humans, which the above-mentioned philosophers turn into the origin of universal law, is quite different from the utility of all of humanity. Thus, just as public utility is the proper norm of private utility in a commonwealth, so too is common utility the norm of particular utility in the society of humanity as a whole. To put it briefly: not everything that is useful is honest, but everything that is honest is also useful.
§97. Thus natural law is divine law inscribed on the hearts of all men, obliging them to do what necessarily conforms to the rational nature of man and to omit that which is contrary to it.
§98. We will inquire in more detail into this conformity with the rational nature of man in the following sections,29 but the main feature of natural law, its immutability and the impossibility of dispensation, follows automatically from our definition, because the rationality of man is indeed immutable and does not allow for dispensation.
§99. There are various well-known objections, especially with regard to dispensation. One example concerns the removal of the Egyptians’ silver vessels commanded to the Israelites by God, the killing of Isaac, the lie of the Egyptian midwives, etc.30 Jurists have come up with an almost infinite variety of distinctions, which are all unnecessary, since clearly no dispensation took place there: these acts were commanded or recommended by God and thus were not theft, homicide, or lying, as prohibited by natural law. And so those who disagree with us confuse the change of the subject matter with a change in the law.
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§100. Yet you might argue that the very fact that these actions are not theft, homicide, etc., means God gave dispensation from the law of nature, since dispensation is a declaration by the superior that a law does not apply to a particular action. I would then respond that this confuses restrictive interpretation with dispensation, which is precisely what we warned against.
§101. Natural law can be divided quite conveniently with respect to natural human societies. Some precepts of natural law concern the common society of all humans, living among themselves in a state of nature, or, as we have said above, in a state of equality. Now that commonwealths have been introduced this is called the society of nations; others direct the duties of humans living in a commonwealth and in societies that form part of a commonwealth, such as households.
§102. The former is usually called the law of nations. You could, therefore, call the former natural law in the strict sense, for the sake of distinguishing it from the latter.
§103. Elsewhere the term law of nations is understood in different ways, either (1) as an attribute of a person or a faculty, which nations exercise with the permission of nature; (2) as the moral customs of several nations, when they tend to make use of their right unanimously and in the same manner (in this sense, possessions, wars, servitudes, commercial ties, etc., are said to be matters of the law of nations); (3) as a law, and in fact as natural law in general, because this does obligate all nations; (4) as the civil law of many nations (here private persons’ means of acquisition, which are said to be of the law of nations, are relevant); or (5) as the law of nations in the proper sense, which describes the duties of nations qua nations toward each other.
§104. It will, however, be quite apparent that in the controversy whether the law of nations is a species of divine law or of human law, it is necessary to pay attention to the ultimate meaning. If we take this into account we can easily respond to those people who join Grotius in turning the law of nations into a form of conventional and human law. For they are talking
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either of the moral customs of nations or of right understood as the attribute of a person.
§105. In sum: The nations are equal among each other, and they do not acknowledge a superior among men. Therefore they cannot be under an obligation from human law.
§106. But, you say, they are bound by a lawful agreement; that is, they are bound by their own will. I repeat, however, that an agreement is not a law, nor is the agreement itself binding, but in every case a law binds via an agreement. We have already said this above.
§107. Thus the nations are (all) under no obligation to each other from an agreement. For where and when was an agreement of this kind established?
§108. The notion of a tacit agreement will not help you out, as if nations bound themselves by imitating each other and by continuing to use certain actions which were initially undertaken by a few. I do not admit the existence of such a universal and continued imitation of this kind and I deny that imitation alone implies a tacit pact.
§109. Perhaps the manners and customs of those who use this law mean that the law of nations is unwritten. But perhaps they do not. There is no unwritten law outside of a commonwealth. For custom is law because of the tacit approbation of the prince. When that is lacking, the custom is called de facto. Yet where among nations do we find the tacit approbation of a prince?
§110. The Scholastics, moreover, divide precepts of natural law into affirmative and negative. That is easy to understand and applies to all laws, but the usefulness of this distinction is exiguous.
§111. “No,” says the Scholastic; “it is a hugely useful distinction. Affirmative precepts are always binding, negative precepts always and at all times.”
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§112. “Nonsense,” I reply; “what poppycock. Let us speak in such a way that we understand each other.”
§113. Both types of precepts are always binding; that is, they are eternally true. But affirmative precepts are not binding at all times; that is, they do not bind all humans, nor do they bind in every single moment. Examples are the command to honor your parents, give alms, etc. But the negative precepts bind everyone and at all times. An example is the command not to insult anyone.
§114. So do the precepts “Obey a superior,” “Live honestly,” “Render everyone his due” not bind all humans at every time? And does the command “Do not commit a crime of lèse majesté” bind all humans and, for example, the princes and sovereigns themselves?
§115. You see that these effects do not depend on the affirmation or the negation, but are to be derived from elsewhere. The laws of nature either impose duties on humans living in any society whatsoever, or they impose duties that are peculiar to particular societies. Likewise, man can omit a thousand entirely different actions in one and the same moment, but he cannot perform these several different actions in one moment.
§116. Those are the subtleties which anyone can understand without pretty formulae. Moreover, we do not believe it is right to use this distinction to say that affirmative precepts of natural law always allow for an exception in cases of supreme necessity, and negative precepts do not. That will be clear from what is to be said in its proper place.
§117. Divine positive law is divine law publicized to humans through divine revelation and directs those actions that do not have a necessary connection with the rational nature of man.
§118. Thus, it is evident that this divine law is mutable and admits dispensation, but only by God, not by the pope or any prince. Yet the will of God is not therefore changeable.
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§119. Positive law is divided into universal and particular. There is no doubt concerning the latter, but the existence of the former is denied by some and defended by others. I think that the question what it is needs to be examined before the question whether it exists, if this can be done while preserving peace with the Scholastics.
§120. We speak of universal law with respect to all of humanity, particular with respect to a certain people. This distinction can, however, be taken in a twofold sense, either in relation to publication or in relation to obligation. Either meaning is relevant here, but publication is more important.
§121. Thus universal divine positive law is that which has been publicized to all humans or to certain persons representing all of humanity. The particular law is that which was given to the Jewish people.
§122. The Jews not only affirm all too confidently that this universal law was given to Adam and Noah, but they also describe it in their own way, mixing as they are wont to do false statements with true and augmenting natural law with positive law, mainly from their rabbinic traditions, whose opinion Selden, that ornament of Britain, explained in more detail in a work devoted to this particular question.31
§123. We have set aside all these traditions and look only toward Scripture, and so choose the middle way: we cannot deny the existence of such laws. For not only was Adam given the precept concerning the forbidden tree, and on avoiding polygamy and divorce, when marriage was first established, but Noah too was ordered to punish homicide as a capital crime and to avoid eating blood, etc.
§124. It is clear that these are positive laws because the relevant actions do not have a necessary connection with the rational nature of man.
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§125. We will survey the forms of this positive law in their proper place. We should only note this in advance, that these positive laws direct the duty of man either with respect to the worship of God or with respect to other humans. In the former case they have eternal beatitude as their immediate object. The latter have temporal well-being as their immediate object.
§126. Divine particular law is either ceremonial or forensic. The former concerns the regulation of divine worship, the latter the decision of court cases among the Jews. In the forensic law God aimed at the particular temporal well-being of the Jewish people, in the ceremonial at the eternal beatitude of all of humanity.
§127. Therefore, ceremonial law for the greatest part (that is, insofar as proselytes too were bound to its observance) binds all humans.32
§128. Thus, ceremonial law is, so to speak, in between forensic law and that law which we have called universal law. Universal law is such by virtue of its universal publication and obligation. Forensic law is particular in both respects. But ceremonial law is particular in its publication, universal in its obligation.
§129. For all precepts concerning religion are universal in terms of their obligation, for there is only one religion which cares for eternal salvation. They who neglect it are punished eternally.
§130. Nor should you be distracted by the common rule that “a law which has not been publicized is not binding.” This actually means that the (positive) law is not binding before it has been published. It does not mean that it binds only those to whom it has been actually publicized. For this would lead to many limitations, including, without doubt, the following: unless the subjects to whom it has to be publicized are at fault and do not admit the publication, for example, if they are rebels.
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§131. Forensic law has been extinct since the Jewish commonwealth has been extinct and the Jews have been dispersed over the entire globe. Ceremonial law expired with the advent of Christ, who having first fulfilled the law introduced new sacraments and a new religious worship, either by himself or through his apostles. This obligated all humans, in the same way, as once the Jewish law did, as we have said. About this there is all the less doubt, as the apostles were ordered to preach the gospel to all nations.
§132. However, Christ should not be called a new legislator because of that. For those who use that phrase imply that Christ also changed something in those precepts which concern the duties of humans to each other and required a more perfect obedience from Christians in the New Testament. But that would obviously contradict the infinite wisdom of God the Father, and it is also refuted at length by the theologians.
§133. So, does the particular Mosaic law and especially the forensic law have no use today? Grotius claims it has a threefold use: one is to show that the commands of those laws are not contrary to the law of nature. Another is to show that Christian magistrates may now pass laws that are similar to those given through Moses, unless maybe they are ceremonial or Christ ordered something to the contrary. Third, [it shows] that whatever has been commanded by the Law of Moses and belongs to the virtues Christ demanded of his disciples must also be fulfilled by Christians now, perhaps even more fully than before.33
§134. We agree with the first of these uses, but we have already refuted the second and third uses added by Grotius. We also deny that the second use suggested by Grotius concerning forensic laws applies to other cases as well. For in these laws God had in mind the well-being of the Jewish commonwealth, but the individual Christian magistrates must have the utility of their commonwealths before their eyes, which can be different from the utility of the Jewish commonwealth.
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§135. For example, the forensic law punishes theft by requiring the culprit to restore double or quadruple the amount stolen. This was sufficient for the punishment of thefts among the Jewish people. Thus, if in any commonwealth these punishments are sufficient, the prince will do well if he adopts them. But if he cannot obtain his end and thefts continue to multiply, the prince commits a sin if he does not increase the punishments together with the growth in crimes.
§136. They clearly err, however, who believe that divine forensic law prescribes a norm to princes, to which they must adapt the laws of their commonwealths, and that they sin if they issue a regulation which is not determined by these forensic laws or is contrary to them. On this basis, for example, they criticize the hanging of thieves.
§137. It is clear from the division of divine laws that divine jurisprudence has as its object natural law, and among the divine positive universal laws those that concern the duties of humans toward other humans.
§138. For these laws, as well as natural law, have the temporal well-being and tranquillity of man as their object—not principally, I should say, but still directly.
§139. We believe that this doctrine conforms to common practice in the territories of Protestant princes, and among us to the practice of the consistories and the regulations issued by the princes.
§140. Thus, our jurisprudence can be called Christian with regard to its positive laws because not only is the object of demonstration here taken from sacred Scripture, but the first principle of demonstration is derived from revelation, which the other parts of jurisprudence, as well as medicine and philosophy, do not do, and indeed must not do.
§141. Therefore, jurisprudence also differs from theology, partly because of its object, but properly because of its end. Indeed, only jurisprudence is concerned with human laws, because these are accommodated to the temporal well-being of man. The precepts of religion pertain to the theologians,
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and the doctrine concerning these bears the name theology in the strict sense, which explains the articles of faith.
§142. The divine laws, however, which regulate the duties of humans toward humans are common to theologians and jurists. They belong to the former insofar as they are, according to the intention of the legislator, subordinated to eternal salvation, or insofar as the gospel cannot be explained properly without the law. They are relevant to the latter insofar as God in them has immediate regard for the tranquillity and decorous order of this life.
§143. And therefore, when the theologians interpret these precepts, they do not simply call their treatises theology, but moral theology, which explains what actions are to be performed.
§144. You could also draw the following distinction between moral theology and divine jurisprudence. Moral theology inculcates the moral law [i.e., the Ten Commandments], which binds all humans without distinguishing between natural law and positive universal law; moral theology always uses sacred Scripture as its foundation, which is why moral theologians generally treat the moral law and natural law as synonyms. Divine jurisprudence, however, separates natural law from divine, and proves the former from the dictate of right reason, according to the doctrine of the Apostle Paul, but seeks the latter from revelation alone. This distinction is immensely useful in controversies, which are otherwise extremely difficult, concerning the obligation of the prince with respect to precepts of this kind and his power of granting dispensation and of legislation, etc.
§145. Therefore, it is correct to divide divine jurisprudence into natural and the divine positive universal law that inculcates the duties of humans toward each other. The latter we shall from now on for the sake of brevity simply call divine, and the laws with which it is concerned, divine laws. We will make an effort to do what has not been done before, that is, to keep them apart in the individual chapters, though we do not consider these two species in isolation from each other.
