Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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no more godless people than those who say that beasts come very close to the perfection of humans. This is how the Cartesians have used religion for the purposes of their philosophy. But they are not content with this reason. They have examined divine nature to find arguments against the rationality of beasts, and one can say that they have found many good things there.45
And his entire, highly erudite dissertation, which he proposed on the occasion of the treatise of Darmanson, La beste transformée en machine, pages 19–34,46 is worthy of being read by you. To put it briefly, the whole doctrine can be summarized in these few points: (1) The Peripatetics, I believe, concede that the soul of man cannot be conceived as anything other than a faculty for thought. (2) They concede that the internal senses perform acts of cognition. (3) Either it must be conceded that all cognition occurs as a result of thought, or it must be confessed that those who attribute cognition to the senses do not know what they are saying. Thus, (4) the conclusion follows naturally: Animals lack internal senses because they lack reason. Therefore animals must either be granted reason or they
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must be deprived of both reason and sensation, or perception, or cognition, or whatever word you want to use here. But this doctrine is not so new that it has to be traced from the age of Descartes. Sturm says in the first dissertation of his Eclectic Philosophy, page 54:
the first was Gomez Pereira, who asserted that animals lacked all cognition or perception,47 and Willis in De anima brutorum, chapter 1, page 6, testifies that he [Pereira] was followed in the present century by Descartes and Digby.48 Morhof in his dissertation on the paradoxes of the senses49 says that Gomez, a Spanish philosopher and physician, devoted a lot of effort to this, and in Methyna in 1554 published a book he had worked on for thirty years, which was named the Antoniana Margarita after his parents.50
Add Bayle in the work cited, pages 20ff., where he shows that this opinion perished soon after Pereira, and so the glory of inventing it should not be denied to Descartes. There has even been an anonymous author who reminded Bayle that already at the time of Augustine there were debates on this matter, and to prove this he quotes the words of Augustine from De quantitate animae, chapter 30: “But it seemed to you that there was no soul in the body of living beasts, although this may seem absurd, and there has been no lack of highly learned people who adopted this opinion, and I believe there is no lack of them now.” See Bayle, Nouvelles de la République des lettres, month of August 1684, page 2,51 and Rondelius in a particular letter, a fragment of which Bayle published in the month of October of the same year, page 290,52 points out to him that more than three hundred
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years before Augustine, at the time of the Caesars, the Stoics doubted whether beasts had a sensitive soul; another three hundred years before them Diogenes the Cynic did the same, even though the anonymous author soon retracted his opinion because in studying Augustine he had noticed that in the words quoted from Augustine the question did not concern the doctrine of Pereira. The learned Bayle therefore suspected that perhaps passages quoted by Rondelius did not clearly prove his intention; see the month April 1685, page 425, which is a question we perhaps will discuss in greater detail elsewhere.
§41. The arguments which I put forward on the imputability of moral actions in chapter 1, §66, are almost all taken from the writings of Mr. Pufendorf, Of the Law of Nature and Nations, book 1, chapter 5, and On the Duty of Man and Citizen, book 1, chapter 1. Yet I believe that the Peripatetics pretty much agree with me on these rules and that they are generally taught by them in their books on ethics, especially the principle which I state in §69, that facts cannot be morally imputed to a person when he has no influence over their presence or absence. But I understand all these rules to refer to the human court [forum], because in the entire Institutes I discuss jurisprudence, which has as its ultimate end the preservation of temporal peace through the execution of laws and the administration of justice, and so I do not contradict the theologians and their doctrine of the imputation of original sin in the divine court. The fact that I composed a treatise on divine jurisprudence is no hindrance, though it might lead a reader to believe, according to the laws of sound method, that these general rules are to be taken in such a wide sense that they apply not only to the human but also to the divine court. But it will be clear to anyone from what I say at the end of chapters 1 and 2 that jurisprudence, even when it is called divine and is concerned with divine laws, is not concerned with the divine court, but leaves this entirely to the theologians. I wanted, however, to add an explanation of my opinion because I wanted to avoid causing scandal to others.
§42. In chapter 2, §2, I state that certain divine laws have the well-being of humans in this life as their purpose. And by that I mean their immediate
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purpose, for this is what I say expressly in the same chapter, §§125 and 138. Thus I do not deny that every divine law which has eternal salvation as its purpose also simultaneously has well-being in this life as its purpose. I do deny, however, that this is its immediate purpose.
§43. In §3 of the same chapter I said that I disapproved of the common division of divine law into moral, ceremonial, and forensic. Yet I deny that I have thereby committed an impiety or a crime against sacred theology. I have put forward my reasons for this disapproval in a public disputation On the Crime of Bigamy, §§8 and 20.53 Many who use this division treat moral and natural law as identical, and argue that the Decalogue everywhere inculcates precepts of natural law, or they defend the view that outside of the Decalogue there are no moral precepts in Scripture. They do this although it is evident that the moral law is broader and comprehends within it positive universal law, and that the Decalogue also inculcates universal positive laws, for example in the ninth and tenth precepts; finally there are moral precepts outside the Decalogue, for example in Leviticus 18.54 As far as the first point is concerned, Mr. Osiander agrees with it in his Typum legis naturae, page 117, §15, where he says lucidly that “the moral and the natural law are based on different reasons.” The late Dorscheus said in his first Disputation on Moral Theology, §10:55
divine positive law was superadded to natural law and communicated to humanity. It was put forward by Moses more fully and restricted to the government of the Israelite people, which was more ancient than the laws of all nations and also provided all first legislators with the origins of their laws. This is clear from the testimony of the pagans, on which Eusebius comments in book 1, Praeparatio evangelica, chapter 9;56 from the fact that they trace the origin of all laws to Egypt, which, according to Joseph
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Psalm 105.22, owed its habitation to the ancient pious Israelites;57 from the comparison of Roman and Hebrew laws by Justus Calvinus in his Themis Ebraeo-Romana, William Velrot in his Parallels of Jewish and Roman Law, Molinaeus in his Comparison of Roman and Hebrew Laws, and others. Add Diodorus Siculus, book 1 of his Bibl., chapter 5, page 43.58
Then he [Dorscheus] adds in §11 that the written moral law, which was transmitted by Moses, was known already before the time of Moses, and he proves this, according to the order of the precepts of the Decalogue, with various scriptural passages. Finally he says in §13: “It is clear from the divine illumination of the Patriarchs and God’s proclamations in Genesis 3, 4, 6, etc., that moral laws which were known before the time of Moses were not only to be ascribed to natural reason but were also positive laws, and thus promulgated by God.” Add to these the blessed Scherzer in his System of Theology, locus 9, §9, page 266: “From this foundation emerges the distinction between the natural moral law and the positive law (which is better than the common distinction between primary and secondary natural law).”59 On the second point, concerning the ninth and tenth precepts, we will soon say more. Concerning the third, what we have just noted from Dorscheus can suffice. Add to this what I discuss in great detail in the Institutes themselves in book 2, throughout chapter 3.
§44. The question concerning government within marriage in the state of innocence, which I touch upon in §§29ff. of chapter 2, is, I believe,