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INTRODUCTION

The German jurist and philosopher Christian Thomasius (1655–1728) published two major treatises on natural law, the Institutes of Divine Jurisprudence in 1688 and the Foundations of the Law of Nature and Nations in 1705.¹ Thomasius’s declared aim in both was to improve and develop the natural law theories of Hugo Grotius and Samuel Pufendorf.² Both works have much material in common, a lot of which is standard natural jurisprudential argument, yet Thomasius also used the Foundations to reformulate the central principles on which his natural jurisprudence was based. The passages from the Foundations in this volume have been chosen because they make clear the key changes in Thomasius’s natural law theory that had taken place since the publication of the Institutes seventeen years before.

Thomasius was widely regarded as an innovative, even heterodox, thinker during his lifetime, a reputation that he often promoted very vigorously. He boasted, for example, that his decision in the mid-1680s to lecture at the University of Leipzig in German rather than in the traditional Latin had caused great consternation among the conservative professoriate,³ and in subsequent years he often criticized “pedantry,” “dogmatism,” and “scholasticism” in university teaching. Thomasius continued to be regarded as an intellectual innovator after his death. In the mid-eighteenth century the historian of philosophy Johann Jacob Brucker

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praised him as one in a long line of “eclectic” thinkers, who formed their ideas independently and refused to follow blindly the authority of others.⁴ Toward the end of the eighteenth century the author Friedrich Gedicke in Berlin presented Thomasius as one of the initiators of the Enlightenment in Germany, describing him as the person “to whom we owe a large part of our intellectual and material happiness.”⁵ In recent years several studies have reaffirmed his status as a key figure in the intellectual history of the early Enlightenment.⁶

Life of Thomasius

Christian Thomasius⁷ was born in Leipzig in 1655, the son of Jacob Thomasius, a respected professor at the university, who taught the young Gottfried Wilhelm Leibniz in the early 1660s. Christian Thomasius entered the University of Leipzig in 1669. In 1672, the year in which Samuel Pufendorf’s On the Law of Nature and Nations was first published, he graduated with a master’s degree from Leipzig, moving to the University

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of Frankfurt on the Oder in 1675, where he received a doctorate in law, before returning to Leipzig in 1679. After an unsuccessful attempt at a legal career, Thomasius began to lecture on natural jurisprudence to students at the University of Leipzig. Within a few years, he was involved in a number of controversies with the university, its theological faculty in particular. His disputation On the Crime of Bigamy (De crimine bigamiae) in 1685 appears to have led to disagreements with Valentin Alberti, a professor of theology and an opponent of Samuel Pufendorf. Thomasius, in his Institutes of Divine Jurisprudence of 1688, was also highly critical of Alberti’s natural law theory⁸ and defended the main principles of Pufendorf’s system. In 1688 Thomasius began publishing a monthly journal, the Monatsgespraeche (Monthly Conversations), in which he often commented satirically on members of the university. In addition, he plunged into a dispute with the court preacher in Copenhagen, Hector Gottfried Masius, which led to a complaint by the Danish king to Thomasius’s prince, the Elector of Saxony.⁹ At the same time, Thomasius was associating himself with a quasi-Puritan reform movement within the Lutheran church in Leipzig, the so-called Pietists, who were opposed by the theological faculty at the university. While some clergymen and professors appear to have been sympathetic to the Pietists’ general aims, their concern seems to have been that some of the leading Pietists were not qualified theologians and therefore likely to mislead their followers on matters that were essential to salvation.¹⁰ Eventually, pressure from the Lutheran church in Saxony and the Elector forced most of the prominent Pietists to leave the country. Several moved to the lands of the Calvinist Elector of Brandenburg, who

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welcomed them, in part because he believed that they would be useful allies against his territory’s Lutheran church, with which his relationship was strained.¹¹ In 1690 Thomasius also left Saxony, having been forbidden to teach, publish, and conduct academic disputations, and moved across the border into the territories of the Elector of Brandenburg. There Thomasius first taught at an academy for noblemen in Halle. Very soon, however, he joined others in urging the foundation of a full university in Halle.¹² Their efforts were successful, and in 1694 the new University of Halle was opened, which soon became one of the leading academic institutions in the early German Enlightenment. Thomasius was appointed a professor in Halle and remained there until his death in 1728.

Institutes of Divine Jurisprudence (1688)

Thomasius first published the Institutes in Leipzig in 1688 as a textbook to accompany his lecture course on natural law. At that time he did not hold a university post but taught students in private seminars, so-called collegia. The Institutes was intended as a vindication of the main principles of Pufendorf’s natural jurisprudence against critics such as Valentin Alberti. Yet Thomasius’s work was more than a repetition of Pufendorf’s ideas. In Pufendorf’s theory, for example, the notion of human weakness (imbecillitas) had played a central role, which it did not have in Thomasius’s Institutes. Pufendorf argued that, unlike other animals, single humans in a state of nature were weak. They lacked teeth, claws, fur, speed, and the other natural attributes that allowed wild beasts to survive without assistance from others. This imbecillitas, according to Pufendorf, drove humans to form societies. It also made it clear that God must have wanted them to

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do so, because he would not have created humankind only for it to perish immediately.¹³ The argument from imbecillitas, however, was susceptible to accusations of “Hobbesianism,” because it seemed to turn individual necessity into the foundation of natural law.¹⁴ It is perhaps for this reason that Thomasius did not emphasize the argument from imbecillitas in his natural law theory but replaced it with another that relied on less selfish grounds to account for the origins of society. Humans, Thomasius wrote, had been created capable of reasoning. That was a fact of which each individual was aware. Reasoning, however, was impossible without words, and words were terms imposed on the world by mutual agreement among several humans. The use of words and language, therefore, depended on the existence of human society and relationships, and the rational nature of humans was thus evidence that God had intended them to live in societies together.¹⁵

In most other respects Thomasius’s argument was similar to Pufendorf’s. The laws of nature were divine commands that could be known from the observation of human nature and reflection on it. They were grounded in the divine will, just as laws in general were based on the will of a superior, that is, someone who had the right to impose an obligation on others. Without these commands, physical nature had no intrinsic moral value, either good or bad. All moral values were impositions on a morally indifferent, physical nature by a superior. Moral and physical qualities, therefore, were strictly distinct from each other.¹⁶ Thomasius also argued, like Pufendorf, that the human will was free in the sense of being “indifferent”; that is, it was able to choose freely between any of the

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various courses of action that presented themselves to it at a particular time. If that were not the case, the will could not be held morally responsible for its decisions. This freedom of the will was a key difference between humans and beasts. It meant that the former were moral agents, while the latter were not, though Thomasius also believed that following the fall from grace the human will was not always able to exercise its freedom unimpeded. Ever since original sin, the human passions interfered with the operations of the will and distorted its choices. But this interference was never so strong that humans ceased to be responsible for their actions.¹⁷

God’s commands in natural law were not arbitrary, but his reasons were not fully evident to humans. It was only clear that, having created human nature as it was, God must have wanted humans to act according to the principles of natural law, as they were known from the empirical observation of humankind. Thomasius placed great emphasis on the inscrutability of God’s mind to human understanding. This was one important respect in which he distinguished his natural law theory from that of opponents such as Valentin Alberti. Alberti believed that the content of natural law was not the product of divine commands but founded on eternal truths in the mind of God.¹⁸ The moral principles of natural law were not identical to these truths, but they were derived directly from them and, therefore, were just. They were not known to humans on the basis of empirical observation and reflection but were innate and part of the so-called imago divina, the divine image that God had implanted in humans when he created the world.¹⁹ Yet Alberti also said that these moral principles had been present in their full strength and clarity only in the state of innocence, before original sin. Following the fall from grace, they were blurred and obscured, and humans depended on divine revelation to supplement their imperfect knowledge and understanding of them. In particular, it was the Decalogue, given by God to the Israelites after their exodus from Egypt, that summarized the central precepts of natural law.²⁰

The first of Thomasius’s main objections was that Alberti’s theory of

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the imago divina and the derivation of natural law from eternal truths implied a continuity, which did not exist, between human understanding and the mind of God. The two differed in kind, not just in degree, and the distance between them was insuperable.²¹ Humans should therefore not dare to speculate about the ideas in God’s mind. The grounds for God’s decisions are inscrutable, and humans must not assume that their moral reasoning and that of God’s are comparable and based on similar principles. The precepts of natural law were binding because they were known to be the commands of God, who was the rightful superior of humankind, not because they conformed to particular eternal truths. Thomasius also argued that Alberti’s theory of eternal rational truths appeared to subordinate God’s will to an external standard of morality: it implied that there were rules independent of and superior to God, which God had to adhere to, thus restricting his freedom and power.²² Alberti replied that this standard according to which God acted was part of his own intellect, and thus it constituted no external restriction on him. To say that God acted according to principles that were part of himself, and not arbitrarily, did not imply that his freedom or his power was limited.²³

Thomasius’s natural jurisprudence in the Institutes was thus largely, if not completely, Pufendorfian. Yet natural law formed only one-half of the “divine jurisprudence” referred to in the full title of his work. The other half was divine positive law, and one of Thomasius’s main concerns in the Institutes was to clarify the relationship between natural and positive divine law. As we have seen, Valentin Alberti argued that the main example of divine positive law, the Decalogue, was a republication of the laws of nature, which had been erased or at least obscured by the effects of original sin. Thomasius’s view in the Institutes was that divine positive law was not needed to reconstruct and understand the main principles of natural

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law. It was, however, important for other reasons, in particular because it provided guidance on certain temporal matters on which natural law was silent.

The most significant temporal matter, judging by the space devoted to it in the Institutes, was marriage.²⁴ Thomasius had examined the relevance of natural law for marriage in his disputation De crimine bigamiae of 1685, where he had concluded that the prohibition of bigamy had to be based on divine positive law because natural law did not offer any clear arguments against it.²⁵ In the Institutes Thomasius discussed at length the laws banning the different forms of polygamy and limiting marriages between relatives. Thomasius’s conclusion there, too, is that these restrictions rest on divine positive law, not natural law, which is insufficient to explain them.²⁶ To the extent that divine positive laws are directed toward the affairs of temporal society, they stand in no need of interpretation by theologians. Jurists are capable of understanding and applying them, like the precepts of natural law or human positive law, and in so doing do not need to seek the advice of theologians.²⁷ This right of jurists to interpret Scripture on matters relevant to temporal law was part of Thomasius’s argument against clerical authority more generally, which he continued and expanded in the following years, especially after he moved to the territories of the Elector of Brandenburg and began to teach at the University of Halle.²⁸ Here Thomasius also began to rethink his natural jurisprudence, a process that led to his second main work on natural law, the Foundations of the Law of Nature and Nations, published in 1705.

Foundations of the Law of Nature and Nations (1705)

An important change in Thomasius’s natural jurisprudence concerned the relationship between moral and physical qualities. In the Institutes he

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had argued that these two types of qualities were distinct and separate: whether a particular action or condition was deemed morally good or evil depended on the moral value imposed on it by a superior, not on its physical attributes. In the three books of the Foundations Thomasius changed his mind and argued that moral value was not something that was attached by an act of will to a morally indifferent nature. Instead, moral qualities were a species of natural qualities, and moral philosophy itself formed part of natural philosophy, or “physics.”²⁹ In particular, actions were morally good or bad, depending on their natural effects. Moral actions tended naturally to further the well-being and happiness of the agent and others, while immoral actions caused infelicity and ill health. This was so because God had created nature in such a way that its ordinary course reinforced moral conduct.³⁰

These natural advantages and disadvantages in temporal life could be considered a form of divine rewards and punishments, though Thomasius said that they were not comparable to the sanctions threatened by a human legislator.³¹ In particular, they were not sufficiently obvious to deter humans from breaking the law of nature, because “every [human] punishment must be inflicted visibly, but the evils which God has ordained for the transgressors of natural law come secretly, in such a way, that the connection of the evil with the sin is not evident, even if the evil itself is evident.”³² The natural consequences of moral and immoral actions were thus more similar to advice than to coercion.³³ God had no reason to compel humans to act morally by threatening them with punishments, because he derived no advantage from their obedience. Also, if the disadvantages of immorality were so clear and powerful that they deterred everyone from violating natural law, there would be no merit in being virtuous. A human legislator, on the other hand, had a clear interest in forcing his subjects

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to be obedient, regardless of whether they did so only out of fear. Related to this new idea of punishments was another change in the Foundations, Thomasius’s rejection of the notion of a divine positive law: because God was not comparable to a human legislator, who enforced his laws with punishments, the concept of a divine positive law, which was analogous to human positive law, made little sense. Divine positive law, according to Thomasius, had been the invention of self-interested clergymen, who had tried to use their authority in questions of scriptural interpretation to exercise influence on temporal matters, such as legal cases concerning marriage.³⁴

Thomasius also completely changed his notion of the freedom of the human will and its relationship to the human intellect. His previous idea of an “indifferent” will, he now argued, was wrong, for if the will was equally indifferent to all available courses of action, it was impossible to explain why it chose one rather than the other.³⁵ The human will was free, but not in the sense of being “indifferent.” It was free insofar as it was “spontaneous,” that is, insofar as the external actions of the agent corresponded to the intentions of his or her will and were not frustrated by external circumstances and accidents.³⁶

The degree of this “spontaneity” also determined the extent of an agent’s moral responsibility. A person, for example, who aimed a gun at a bird and shot a friend by mistake could not be said to have acted “spontaneously” and to be guilty of murder, since the person had not intended any harm to the other.³⁷ The choices of the will, however, were not free in the sense that the agent could have chosen to will something different. The will was not an ability to choose but was best described as a passion, desire, or love that provided the motive force and direction of human actions.

This love always had a determinate aim, though this aim could vary

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from person to person and according to external circumstances: some, for example, loved sensual pleasures; others, wealth or honors.³⁸ The direction of this will-as-love or will-as-passion could not, however, be influenced by the other main faculty in human nature, the intellect (or reason), because conclusions of the intellect did not have the power to motivate actions. They only informed the will how to achieve its ends, not which ends were or were not desirable. As David Hume would later put it, reason was the slave of the passions and ought to be nothing else.³⁹

In defining the will as love or passion, Thomasius was drawing on a rich intellectual tradition to which he had been attracted since at least the late 1680s.⁴⁰ This was predominantly French and had emerged from the revival of interest in the thought of St. Augustine, following the posthumous publication of Bishop Jansen’s Augustinus in 1640. Its central feature was a deeply Augustinian attempt to explain virtue and vice as the respective products of different varieties of love or desire.⁴¹

“Reasonable love” (amour raisonnable) described that form of desire directed toward virtuous ends. Opposed to it were various kinds of corrupt love that drove humans toward pursuing selfish and immoral ends. From the early 1690s Thomasius had similarly begun to explain moral and immoral action as the product of “reasonable” and “corrupt love,” respectively.⁴² He also began to argue that the change from “corrupt” to “reasonable” love could take place only as the result of religious and spiritual regeneration, an argument that subjected him to charges of religious “enthusiasm” and caused him to somewhat modify his views around 1700.⁴³

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Yet it is arguable that Thomasius’s notion of “reasonable love” continued to be closely tied to a particular and rather heterodox form of Christianity, which I have discussed elsewhere.⁴⁴

Thus, reasonable love was the foundation of true virtue and of a life fully conforming to natural law. Thomasius was, however, convinced that the majority of humans would never be guided by reasonable love but would continue to follow their corrupt desires. The human legislator was powerless to change them: threats of punishment could influence external actions but not turn corrupt into reasonable love, since sincere love could never be the product of coercion. Human society could nevertheless function tolerably well because it did not require the complete conformity of its members to natural law. In particular, Thomasius distinguished between three levels of natural law, not all of which depended on the presence of reasonable love.⁴⁵

The first was the iustum (the just), which was summarized in the negative precept not to do to others what you would not have them do to you.⁴⁶ The iustum marked the lowest degree of conformity to natural law, but it was also the one most essential to human society, which would disintegrate without it. Obedience to the negative precepts of iustum did not require reasonable love in the agent but could be enforced through threats of punishment and fears of revenge.

The second level was the decorum (the decorous). Its main principle was the command to do to others what you would have them do to you.⁴⁷ It covered, for example, acts of benevolence or politeness toward others. Unlike the negative precept of the iustum, the main precept of decorum was positive and therefore could not be binding on everyone at all times. For, while it was possible to abstain from harming any other person at all times, one could not perform acts of benevolence or kindness toward all other people in every single moment. Some acts of decorum might be commanded by the legislator and enforced with threats of punishment, though they were then not usually the expression of reasonable love but of fear.

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The third level of obedience to natural law was the honestum (the honest), which demanded that humans rid themselves of corrupt passions and be guided by reasonable love, for the sake of their own happiness and well-being. Thomasius summarized the main command of the honestum as “Do unto yourself what you would like others to do to themselves.”⁴⁸ The honestum represented the highest degree of conformity to natural law, though its violation also represented the smallest evil, compared to the violation of the rules of iustum or decorum, which were more important to social life. Those who fulfilled the precepts of the honestum, however, also observed those of the decorum and iustum, because they acted out of reasonable love, while obedience to the rules of decorum and iustum might be founded on motives other than reasonable love and thus did not automatically imply obedience to the precepts of honestum.

This emphasis on passions, love, sentiments, and related terms in moral theory became a prominent theme in Enlightenment thought. It was, for example, characteristic of the new genre of didactic “sentimental” literature, which was produced for the growing reading public of the eighteenth century.⁴⁹ Moreover, Thomasius’s arguments about the passions were central to discussions by various German moral theorists in the eighteenth century, men such as Nicolaus Hieronymus Gundling, Johann Friedrich Hombergk zu Vach, and Johann Jacob Schmauss.⁵⁰

There are also striking parallels between the evolution of Thomasius’s natural jurisprudence toward this greater emphasis on the passions and the broader development of moral thought in early-eighteenth-century Europe. A member of the St. Petersburg academy of sciences, Frédéric-Henri Strube de Piermont, commented that natural law was based on “the passions insofar as they conform to nature.”⁵¹

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There is a very similar emphasis on passions and sentiments in the moral philosophical literature of the Scottish Enlightenment, ranging from Francis Hutcheson’s Essay on the Nature and Conduct of the Passions and Affections (1728) to David Hume’s Treatise of Human Nature (1739–40) and Adam Smith’s Theory of Moral Sentiments (1759). Thomasius does not seem to have directly influenced these later debates in the Scottish Enlightenment; the similarities are, however, remarkable, and they strongly suggest that the changes in Thomasius’s natural law theory between the Institutes and the Foundations exemplify a more general development in the natural jurisprudence of the early European Enlightenments: a transition from a focus on laws and commands, which had been characteristic of Pufendorf’s voluntarist natural jurisprudence, to a moral psychological emphasis on passions and sentiments as the true springs of virtue.