Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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understood in two ways: first to refer to an intention, which supplies the law as an immediate means to achieve this end; second, it is understood to refer to an intention, which looks to achieve an end in such a way that the law itself does not supply the means, but only leads us to the means to achieve the end. The former meaning is that used in the objection, but we are concerned with the latter sense in our Institutes. I will
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illustrate through a simile that the latter sense is not inappropriate. Thus it is not inappropriate for me to say that he who studies physic because he wants to later devote his efforts to medicine intends to cure the human body, even when he learns in physic the imperfections to which the body is subject. This is so even though the knowledge of these imperfections is not the means to achieve this cure, but only leads to another discipline which does show the cure, namely, medicine. Yet I can forgive someone who has skimmed my Institutes or read them superficially and then raises this objection, because I realize that my choice of words encourages it. For I had said that in the laws which concern the worship of God, including the ceremonial law, God immediately intended the eternal beatitude of humans. How did God intend this salvation in a law if the law itself is not a means to achieving it? The ceremonial law and all the other laws that were published after the fall do not dictate beliefs that are to be held, but actions to be performed, and regulate some matters concerning divine worship. We admit that they look toward eternal life only in the last instance and to the extent that they offer guidance toward faith. But we thereby clearly assert that these same laws are concerned mediately with eternal beatitude. If this is the case, surely, one of the main principles on which our Institutes rest would be overturned. Thus, in order both to support my principles and to put to rest this grave doubt, it is all-important that I resolve another ambiguity which is contained in the phrase “to intend something immediately.” The word immediate is taken either in an absolute sense as a negation of any other means, or conditionally as a negation of certain means. If someone wants to examine accurately what we have discussed in our Institutes in the said chapter [2 of book 1], §§125ff., it will be clear to him that when we say that “laws regulating divine worship have eternal beatitude as their immediate end,” it is not our intention to deny all means, such as faith, but to deny only that these laws concern eternal salvation via temporal well-being, or that they concern temporal well-being and the tranquillity of humanity in the first instance and eternal life in the second. We will explain our meaning again with a simile. If I compare the study of nature with ethics I say correctly, and certainly not inappropriately, that the immediate aim of ethics is the care for the mind; the study of nature, however, has as its immediate end the care of the
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body. Apart from this comparison, however, or if I compared the study of nature with medicine, it would necessarily follow that the care of the body through the study of medicine is mediated by medicine even though the study of nature would have this care of the body as its immediate aim through the mediation of medicine.
§50. At the end of chapter 2 I discuss the exact difference between jurisprudence and theology and the true boundaries between these two university faculties. I argue there that the explanation of divine laws concerning the duties of men toward their fellow men also belongs to jurisprudence and that this doctrine is shared by jurists and theologians; see §§137, 141, and 142 in that chapter [2]. But in order to remove any remaining doubts on that, I appealed (1) to the common practice in the territories of the Protestant princes, for it is known that in matrimonial cases (and the divine positive law, which also pertains to jurists, applies particularly in these cases) when there is any doubt concerning a prohibition in divine law, opinions are sought not only from the theologians, but from the faculties of law. And this is because the doctrine on marriage among Protestants is part of ecclesiastical jurisprudence, which Carpzov at our university and Brunnemann and the excellent Stryk in Frankfurt an der Oder have explained in greater detail in entire treatises.83 And in these treatises they also cite opinions of faculties of law on matrimonial cases. Thus from the response of such a faculty of law emerged the controversy between Buch holz, Havemann, and Strauch concerning the case of a marriage with the sister of a deceased wife.84 Bucholz listed various testimonies of our theologians to prove that matrimonial cases are a secular matter, because matrimony, according to our belief, is not held to be a sacrament; see the responses of the Rinteln jurists, etc., numbers 9 and 10, pages 27ff.85 (2) The practice of the consistories86 shows the same, because usually half
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their members are theologians and half are jurists, for no other reason than that spiritual matters concerning eternal salvation pertain primarily to the theologians, while secular matters, which directly concern temporal tranquillity, are the business of the jurists. And in order to show that this is not a gratuitous comment, I appeal (3) to the principal Constitution of the Elector Augustus, the Saxon Elector, in the Regulations of the Leipzig and Wittenberg Consistories, title 1:
Since not only cases of conscience, but also secular cases must be brought before these consistories and dealt with there, concerning matrimonial cases, the goods and salaries of church employees and schoolmasters, the life and conduct of teachers and congregation, none shall be staffed exclusively with either theologians or secular officials, but in equal measure with persons from both estates, that is, with two learned and pious, upright and honorable theologians, and with two secular officials. Title 8. The opinion or judgment, however, should be formulated and pronounced according to holy Scripture and the laws that are commonly accepted and in general use in our territories. And since a number of eminent theologians, [such as] Luther and Phillip [Melancthon], drew conclusions from Scripture, which concern cases of marriage and other similar matters but are incompatible with the common laws, so the members of our consistories shall pay heed to these, too, and insofar as these have been hitherto observed in our territories and have been accepted through the practice of the consistories, shall formulate their judgments and decisions on that basis.
Therefore, I concluded in §140 of chapter 2 that in this respect jurisprudence is privileged in comparison to medicine and philosophy, because these two must not draw their principles of demonstration from theology. There is no doubt in the case of medicine; nor do the physicians pretend to have the right to do so. In the case of philosophy I recently gave you conclusive proof of this. That is what the venerable Faculty of Theology of our university referred to recently in the program for the ninth Sunday after Trinity this year, displayed in public, which said that “nobody in our university should be permitted to explain the mysteries put forward in Scripture, or to derive what is just and unjust from revelation, which is the duty of moral theology, or to hold classes on the fathers of the ancient church, the dogmas, heresies, rites, and whatever else ecclesiastical history
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examines, unless he has obtained the right and the privilege of teaching these matters from us after a thorough examination.”
§51. In chapter 3, §§65ff., I touch on the mixture of philosophy with theology, which was the worst possible thing introduced by the Scholastics, and in the following paragraphs I include Pneumatics87 in that. This goes against the authority of many men who enjoy great respect in many matters, so in order that my opinion may not appear too harsh or new to you, I draw on the authority of the illustrious Seckendorff in his Christen-Staat,88 book 3, chapter 7, §2, pages 514ff.: “Our Messiah did not reject the use of the Jewish schools, but rather pointed to them and called them the chair of Moses. What he did reject, however, was the abuse, that is, the mixture of God’s word with human opinions and interpretations and the formation of different sects: for it is from the disputes of the schools that the factions of the Pharisees and Sadducees developed, about which much can be read in the New Testament.” See also, in the same work, chapter 7, §4, pages 518ff.:
One does not hear it said that Paul had a philosophical manner of speaking or arguing according to the terms of the art of logic, topical argument, metaphysics, or apodictic argument, which were already in existence by then. He was perfectly capable of forming rational and concise conclusions and using ornate expressions supplied by reason and practice without the artful books and teachings of the Greeks, and he kept the Holy Spirit as an instrument