Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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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