Читать книгу Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations - Christian Thomasius - Страница 15
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§1. The structure of our argument demands that we learn about the main points of natural law and of divine positive law. And we shall start with natural law.
§2. By the first principle of natural law we should not understand the first practical principle, or the first principle of jurisprudence or of jurisprudence in general, insofar as it is distinct from natural and revealed jurisprudence. For by this first principle we mean, or certainly should mean, a proposition that comprehends all other precepts of natural law under a common axiom—one, so to speak, which presupposes the two other, more general axioms, that God and a ruler [imperans] must be obeyed.
§3. Thus, there will be three requisites, according to which, like a touchstone, we shall examine a principle of this kind. These are that it is (1) true, (2) adequate, (3) evident.
§4. I say true; that is, it must not contain any false proposition.
§5. Adequate; that is, this proposition truly contains all precepts of natural law within itself, and no other precepts than those of natural law.
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§6. Evident; that is, it can be shown from the first practical principle, abstracting from revelation, that this is the divine will, and the link between it and the conclusions is evident and tangible.
§7. Perhaps you are laughing at such a circumstantial apparatus, and secretly you are delighted because you think you have with little effort found what we are looking for. What, you think, is this other than Do that which necessarily conforms to the rational nature of man, and omit that which is repugnant to it. We have already inserted this into our definition of natural law above, deriving it from the principle of noncontradiction. Thus its truth is clear, as are its adequacy and its evidence.
§8. But restrain your joy. You should have remembered that I had earlier promised a more detailed discourse on the conformity with the rational nature of man. I had in mind this chapter. In fact everyone makes a lot of noise about right reason, but when they are asked what right reason is and what the conformity with the rational nature of man is, then they are stuck. The connection of this principle with the first practical principle is indeed evident, but the connection of the conclusions with the principle itself is obscure. My complaint about the circumscription that everybody gives, however, is that truth is hidden away and thus, together with truth, adequacy and evidence are concealed.
§9. This was the subject of controversy for a long time among philosophers, jurists, theologians, and I almost added physicians, too, since someone discussed the laws of nations concerning headaches in a public disputation at a Catholic university.38
§10. The disputations of the ancient philosophers on the supreme good are relevant here. For Polemon the Platonist philosopher said, and Zeno and the Stoics, who received this opinion from him, taught everywhere, that
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the supreme good is to live according to nature. Plato taught the same, as did Aristotle.39
§11. So far the ancient philosophers agreed on the matter itself. The aim of all of them was to teach that a peaceful life of man with others is the supreme good. When they should have clarified this and taught the means of acquiring it, they quarreled over inane matters, which were irrelevant to the question. Do you believe that someone who says that the supreme good consists in an act of virtue becomes better able to acquire the supreme good than he who says that it is a habit of virtue or he who wants it to be a pleasure of the mind? Do you not believe that those people who argue over whether money consists in the physical object, the quantity, or the aptitude to buy other things are unable to make a profit, while in the meantime others are carrying out commercial transactions?
§12. Thus, we leave all of them to their mad wisdom. Justinian claimed that there were three precepts of right: “Live honestly,” “Harm nobody,” and “Render everyone his due.”40
§13. In fact, his generosity is a little overwhelming. We are looking for one proposition, and he gives us three instead. Let us pick the best one.
§14. The precept “Do not harm anyone” has to my knowledge not met with universal approval, maybe because it was too narrow. The other two have found some adherents.
§15. You may see some arguing vigorously that in the precept “Honest actions are to be performed, despicable actions are to be omitted” the sum of all natural wisdom is concealed. We do not object to that, but we would like some evidence. What is honest? No matter whether you call that honest which conforms to a law or that which conforms to reason, we are still not
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enlightened. For we shall then ask, “What is that which conforms to reason and law? You explain something obscure with something equally obscure.”
§16. Yet we fear above all that we will be ridiculed by the entire world if we attempt to put forward the idea of innate principles against those who deny the perspicuity of this axiom and if we wanted to censure them for denying the very first principle.
§17. But as far as the third precept is concerned, “Render everyone his due,” we see no reason why we should glory in it as if it were a newly discovered continent after the jurist had already mentioned this in his time in the definition of justice. If this precept really were evident, it would be surprising why none of the many ancient glossators, who studied the same with such great diligence, ever arrived at a clear idea of it.
§18. I think something similar ought to be said of another slogan of Roman law, that “everyone should live by the same law he uses to settle the legal cases of another person.” A similar rule is “What you do not wish to have done to you, do not inflict on another.” All of this is true; these are pious sayings, but they are not evident, nor are they adequate. They do not apply to relations between unequal persons. They cannot be applied to the duties of man toward himself.
§19. We almost forgot Hobbes. He put forward the following fundamental law of nature: “Seek peace, where it can be had, and where it cannot, resort to war.”41 Not bad indeed, if only Hobbes had meant what he said, and if only by peace he had meant the peace of all. A little earlier he had said that the first foundation of natural law is that “everyone should protect his life and limbs as much as he can.”42 Many scholars have already shown that this is false. That norm regulates the instincts of brutes. The excellence of man requires a different rule.
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§20. Until now we have easily cleared the field of lightly armed soldiers and fresh recruits who had little support. But now we need to resort to heavier weapons. The enemies attack in droves; their bold leaders march ahead of them: Sanchez, Rodriquez, Vasquez, names bound to instill terror.43 What then shall we do? Shall we flee? Shall we fight? The former is shameful. The latter is audacious. Either is prudent. We will flee, since even a Horace flees.44
§21. Therefore, having placed ourselves outside the battlefield we expect their approach. What need, they say, is there to search laboriously for a norm of reason? Man is created in the image of God, and it therefore must be the case that in the state after the fall the rays of divine sanctity and justice, which are, so to speak, relics of the divine image, shine forth in man. Thus, since God did everything according to the norm of his divine sanctity, goodness, wisdom, and justice, and so imposed on himself out of his own free will a quasi-eternal law, it has to be the case that natural law is also based on this archetype, and therefore to conform to right reason is the same as conforming to divine sanctity and justice.
§22. What do we say to that? Let us examine whether this proposition, “whatever conforms to divine sanctity is commanded by natural law, whatever does not conform to it is prohibited by natural law,” conforms to the above requirements. I will not comment on its truth. For we have already shown above45 that this eternal law is a fiction of the Scholastics and that God is not subject to a law, except in a very improper sense.
§23. Let us then consider the adequacy. And this norm seems to us wider than what is regulated by it, and in another respect narrower. For do you
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not believe that divine positive law is also based on its conformity with sanctity and justice? But we are already seeking the axiom from which we could derive the conclusions of natural law.
§24. If you respond that positive law is founded in conformity with the divine will, natural law in conformity with its sanctity, antecedently to the divine will, I will return to the comments I have already made above on this improper notion of divine attributes.
§25. But it is also narrower. Natural law dictates gratitude. But how do you deduce this virtue from the archetype of divine justice? Who ever did God a favor in order to have it returned?
§26. But above all we miss evidence. I will not repeat that virtues and justice are predicated of God in human terms and improperly. You should only consider this: natural reason provides no or only very confused notions of the image of God and its sanctity, but Scripture must here do its best. Hence, if a pagan asks why homicide, for example, is contrary to divine sanctity, or why keeping agreements for example is according to his justice, we shall either not have a reply or we shall have to draw on sacred Scripture and so meddle with it.
§27. I believe, however, that this belief of the Scholastics in the conformity of natural law with the divine essence owes its origin to pagan philosophy. For Augustine and Clement of Alexandria46 mention that Plato defined the supreme good and the essence of virtue as man becoming similar to God. The ineptitudes of the Stoics, who compared their wise man to God, are widely known.
§28. We therefore remember the saying of the apostle and do not seek the norm of natural right outside of man, but in man himself, in whose hearts
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it is inscribed.47 Let it be the case that there is in human reason an image or some remnant of the divine image, yet why do we not look at this reason of man in itself rather than in relation to something outside itself? Human reason is indeed something that exists in itself, not a mere relation the essence of which only consists in the fact that it is related to something else.
§29. Thus, we believe that the condition itself of humanity or the state of all of humanity is the norm of natural law. And why should we not think that? Indeed, natural reason itself, which almost everybody speaks about, is a condition of this kind. Indeed, it automatically follows from the definition of a state provided above, that every state is in its way a norm of law.
§30. But I believe that here I am being warned of violating the first practical principle when I am occupied with trying to demonstrate everything from it. For I said above that law is the norm of human actions. And now I say that the condition of humans is the norm of law. Will the law therefore simultaneously be the norm of humans and humans the norm of law? Thus, the same thing is and is not a norm at the same time.
§31. I will try to extract the response to this objection from you. Let us pretend that there are two kinds of humans in this world who are not known to each other by any intercourse and conversation, one with an erect and robust body, the other endowed with a weak body and a misshaped hump on the back of the neck, the head bowed down toward the earth. Imagine a diet was to be prescribed to each kind of humans by a physician, or that a garment was to be made by the tailor, so that each of the two is held upright and does not creep on the ground like a quadruped. Well then, do you think the prescribed diet or the specially designed garment will not be rightly called a norm for living, or a norm for walking?
§32. Moreover, do you not think that the physician in prescribing the diet and the tailor in making the garment must also study the nature of the
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bodies to which these norms are to be applied? Indeed, the physician will ban more kinds of food for the person with the weak body than for the robust person and will also supply medicines in smaller doses. And when the tailor is making the garment for the crooked people, he will have to leave space for the hump. And while in the garments of the former that material is sufficient which gently prevents them from bending down, in the latter case there is need for stiff metal strips which suppress their inclination to walking hunched over.
§33. But how does this concern me, you will ask. In these examples the norm and what is regulated by the norm are in no way the same. The condition of the body is the norm of the diet and the garment. But the diet and the garment are not the norm of the body, but of the corporeal actions. These are different things.
§34. I will respond that it is the same with law and a particular state. The state is the norm of the law; the law, however, is the norm of actions, which humans living in this state must perform.
§35. Leave me alone, you say, with your silly comparisons. You will not extricate yourself from my objection like that. This is all fictitious. But it does not suit him who professes the true religion to invent such things, which God revealed to us differently. Nor will you be able to protect yourself by appealing to philosophical freedom, since your philosophy must not conflict with the precepts of true religion.
§36. Yet I do not remember sacred Scripture prohibiting a fiction, and I do not remember the Augsburg Confession prohibiting that we argue from fictitious cases. Theologians often invent many things. The jurists make up a lot. Logic teaches how the young should argue from fictitious cases in an erudite fashion. But should, therefore, the treatise on fictions be eliminated from jurisprudence as a heresy? Should the books on logic be purged as heretical, which put forward this example of a hypothetical proposition: if the ass flies, he has feathers? I do not think so.
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§37. There can be no doubt that a lie is one thing, a fiction another. Granted that a lie is contrary to religion, yet a fiction is something fundamentally different.
§38. We shall say nothing here of fictions in Roman law, but a fiction, as we have used it, is nothing other than the first part of a hypothetical proposition which neither affirms nor denies anything, but only infers from the fiction the second part as a consequence. From this the axiom is known that a condition does not assume anything to exist. Similarly, it is not necessary for examples to be true.
§39. Therefore, the assertion stands that the norm of laws of nature is to be derived from the common state and condition of humanity. The comparisons we have used to propose this thesis remain intact, and we will use them in future to demonstrate related claims.
§40. For as we have deduced above that the state of man is twofold, that of innocence and that after the fall, therefore order demands that we see which state we must turn to in deriving the law of nature. But here I ask that you yourself reply to me.
§41. Let us assume that a physician lives among humans who are furnished with a weak body and poor health and is himself weak and must prescribe a general rule for staying healthy to his countrymen. Do you believe that he should look to the constitution of robust men, after he has gained some confused knowledge about them from a travel book, or after he has found out from the writings of some other physician what means such people tend to apply to preserve their health? And when he realizes that he cannot achieve this state of health among his own people, do you believe that he must look to an idea of health that is formed from the constitution of robust people and must devote his efforts to preserving or bringing about such a state of health?
§42. But—and this is the main point here—we have already shown very clearly that man, with his natural powers, cannot in this life recover the
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perfection of the state of innocence even to the smallest degree but must be content with what is left over.
§43. And why do we need to say any more about it? Paul, one of God’s elect, complained bitterly of this misery and that man cannot rid himself of this inclination to evil,48 and he is a witness greater than any other.
§44. I cannot accept this cliché, which all Peripatetics would approve of, that he who teaches a particular discipline must form an idea for himself of a most perfect state, even if such a state does not exist and cannot exist, given the present condition of humans.
§45. I do not criticize this view for having its origin, apparently, in pagan and especially Platonic philosophy. I criticize it because it is obviously not suitable for civil life. We are dealing not with abstract ideas of men, but with actually existing humans. Thus, the remedies to be used are those that will preserve them. Nor do I believe that someone will earn thanks who refers to More’s Utopia when a prince asks him about securing the utility of the commonwealth.49
§46. Moreover, there was a positive law in the state of innocence, too. If, therefore, the conformity with this state were the foundation of natural law, it would follow that positive laws would also be the norm of natural law.
§47. There are also many things today which did not exist in the state of innocence and would not have developed, not only particular societies but also specific states of humans and their offices, such as those of executioners, midwives, warriors, tailors, surgeons, almsgivers, etc. Not to mention the fact that there were or were going to be many things in the state of
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innocence that have no place today, such as the nudity of the first humans, marriages between brothers and sisters, and similar matters.
§48. Finally, if we look for an evident principle, the requirements of the doctrine of the Apostle will not be met because he wanted to refute the pagans on the basis of the light of nature. For if you ask why homicide is contrary to the state of innocence and the keeping of pacts conforms to it, Scripture will have to supply the missing answer in either case. There also remains an almost infinite number of controversies concerning the state of innocence, in which either side can be defended because Scripture tells us very little about this state.
§49. We shall, therefore, primarily consider the nature of man as it is: it is corrupt indeed, but (so that you do not quibble over the idea of a corrupt law) right in its own way. Since we are writing among Christians, we will on the basis of the same principle confirm and illustrate our opinion later by showing that the same principle of ours also obtained in the state of innocence.
§50. For man in the state of innocence and man after the fall do not differ in kind, just as humans with a robust and with a weak body do not. The conclusions vary in either case, but the general principles are the same in both. These principles cannot be learned just by recognizing the difference between the two states, yet a good physician must be able to cure both the robust and the weak men on the basis of the same general principles, applied in different ways.
§51. Thus man differs from beasts in that he is rational. If only our intellect were powerful enough to have complete knowledge of itself a priori! Yet we are forced to inquire into the nature of reason in a roundabout way.
§52. The reason of man consists in thought. To think is to connect one term with another and one proposition with another. The latter is called reasoning. But we can only reason with words, which we either retain
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in our mind or utter aloud. Therefore, λόγος [speech], according to the Greeks, is either ἐνδιάθϵτος [uttered within] or προϕορικός [put forward/uttered aloud]. Words, however, as we shall see below, are imposed on things by humans living in the same society.
§53. Moreover, whatever the Cartesians say, infants do not think from the very first moment after birth, but are endowed only with an aptitude for thinking. Without the company of other humans this aptitude cannot be actualized. For the reports we read about humans brought up by wild beasts say that humans of this kind were almost identical to beasts, or that by living among the beasts this aptitude for thought was developed only to a very small degree.
§54. To summarize briefly: there is no reason without speech, there is no use for speech outside society, nor is reason active outside society. Thus we will not go wrong in saying that this aptitude, which exists in humans before the exercise of reason, is nothing other than an inclination to reason with other humans. Indeed, every aptitude tends toward an action as its end.
§55. Thus, when we call man rational, it is the same as if we say that he is social. Sociality, however, is a common inclination, infused into humanity by God, by the force of which he desires a happy and peaceful life with other humans. But why peaceful? Because in a state of turbulence we do not exercise our reason.
§56. This peaceful life, put into practice, is called society. The contrary of that, as the Peripatetics themselves confess, is conflict.
§57. But we prove our opinion a posteriori, because man outside society cannot be happy. I will not even mention here that great misery in which infants find themselves if they are destitute of human company. Even for adults life would be miserable if there were no other humans who would minister to their needs.
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§58. What then? I appeal to everybody’s own conscience: even if we pretend that someone enjoyed the kind of felicity the poets attribute to Psyche, yet, if he were deprived of all human society, would he not rather wish to live in human society and do without these delights of the senses?50
§59. And to be precise, there can be no pleasure of the senses outside of society. It would be prolix to try to prove this by induction here. We demand that you come up with a counterexample.
§60. Even misanthropes would be miserable without human society because they would have nothing to hate.
§61. Even those bookworms and those people who never consider themselves more alone than when they are not alone would be miserable without books. But where would they get their books from if there were no human society? Assume that all other humans would be annihilated; what use would books be if they cannot show others what displeases them in this or that author, etc.
§62. If you wanted to confirm our argument with evidence from the history of the state of innocence, we have divine testimony, which is greater than all prudence, even that of Solomon. Adam was very happy in general, but he lacked a companion. Divine wisdom pronounced that it was not good for man to be alone.
§63. Thus, the conclusion remains unshaken that the rational nature of man is identical to his social nature. And therefore what is understood by conformity with rational nature is conformity with the sociality of man.
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§64. We, therefore, declare that the sum of natural law is contained in this principle: “Do that which necessarily conforms to the social life of man and omit that which is contrary to it.”
§65. Thus, no doubt remains concerning the truth of this principle. Its adequacy is not only clear from the fact that all special precepts of natural law are to be derived from that source, but also from the fact that it does not depend on any precept of positive law.
§66. Its evidence finally is demonstrated as follows. First, if God had wanted man not to act according to his sociality, he would not have wanted him to be rational. An irrational human being, however, would be a contradiction in terms.
§67. Then the connection of conclusions with this first principle is also evident. For whenever I ask, for example, how homicide, thefts, etc., are contrary to sociality, I respond clearly that this is because they disturb the common peace of all humankind.
§68. Similarly, when I ask how, for example, the keeping of agreements necessarily conforms to sociality, the response is evident: because, if this were not preserved, this same peace would be disrupted.
§69. You see, at the same time, that an action necessarily conforming to sociality is one the omission of which disturbs the common peace of humanity, and that action which does not conform to sociality is one the performance of which disturbs the common peace of humanity. For this omission or performance would lead to war, a war of all against all, which could extinguish all of humankind.
§70. Yet there is no lack of arguments against the adequacy of our principle. Some believe that it is possible to derive rather different conclusions from this source. Thieves, for example, also act according to their society and its purpose. This objection questions the truth of our axiom at the same time.
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§71. But these theorists obviously confuse society with sociality. Society is rightly constituted only if it does not conflict with sociality.
§72. And so that you do not wonder how a society can conflict with sociality, since society is named after sociality, remember that there is no question that the reasoning of a thief conflicts with reasonableness.
§73. Several people believe, however, that only the duties of man toward other men can be deduced from our principle, but not the duties of man toward God, toward himself, and toward beasts.
§74. We readily admit this to be the case with respect to the duties of man toward God insofar as these refer to external worship. That, as we will soon show, is part of Christian jurisprudence, not natural law.
§75. Even if by duties toward God you mean a general obligation toward God, you will not be able to object to our argument because the command to obey God is not a precept of natural law but its presupposition. We have shown that this precept pertains to divine law in general.
§76. The duties of man toward himself, properly speaking, do not exist. Nobody can be under an obligation to himself and therefore cannot owe a duty to himself. The duties that carry this name are, in fact, duties either toward God or toward other humans, insofar as man is under an obligation to either of them with respect to himself. In the case of the former we will derive these duties from Scripture; in the case of the latter from sociality, in the appropriate place.51
§77. Finally, there are no duties of man toward beasts, just as there is no society of man with beasts, although the harsh treatment of beasts violates sociality or divine positive law, as we shall explain when there is a convenient occasion to do so.52
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§78. Thus far on the first principle of natural law. The first principle of divine positive law is this: “Do that which God revealed to you in Scripture you should do and omit the doing anything contrary.”53
§79. With regard to universal positive law in particular, we identify three requisites as far as the principles of knowledge are concerned. Two are held in common with any positive law; a third is specific to it: namely, (1) that Scripture indicates an action to be commanded or prohibited, (2) that this action cannot be derived from sociality, (3) that Scripture indicates this law of God to apply to all humans.
§80. From these two sources we shall derive all conclusions of particular precepts like rivulets. And there is no need to say anything more about the interpretation of natural law. For in putting forward the conclusions we will use the same method of demonstration and the same kind of reasoning as before. In positive law, however, we have another kind of interpretation, which uses conjectures or probable arguments instead of demonstrations. For positive law is not inscribed on the hearts of humans.
§81. It thus has to be explained in certain general rules how these probable arguments are to be formed. But this discussion has to be deferred until we have explained the nature of agreements and the duties concerning them.
§82. For God, in his supreme benevolence, accommodated himself to the capacity of the human understanding when he revealed positive law by using human speech, and so here the same rules are to be observed as in the interpretation of agreements. Thus, we cannot examine it [positive law] before looking at the rules concerning speech and agreements. Moreover, scholars agree almost unanimously on the interpretation of the divine law that is relevant to the duties discussed here.
