Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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in the broad sense, and that which is concerned in particular with the honest actions of others in the past is judicial prudence in the strict sense, or jurisprudence in the strict sense, or the third part of jurisprudence in the broad sense.
§18. But that prudence which has as its object the pleasant or useful actions of men is prudence in the sense of skill [ars].
§19. If man directs these, as he should, toward honest actions, this is good and he remains prudent; if he does not do so, he is said to be astute or cunning.
§20. If he is obviously without prudence in skill, he is termed imprudent.3
§21. The faculty of the will remains. This is acquired by actions that are prescribed by law and in that case is a moral virtue, or by actions prohibited
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by law, when it is called a moral vice, or, finally, by actions permitted by law, when it is nothing more than skill.
§22. These points had to be presented in a little more detail, because the common doctrine of the Peripatetics on the division of the faculties and the various kinds of intellectual virtues is full of countless mistakes, which anyone who has compared their teachings with what has been said so far will easily detect.
§23. We cannot but point out here a little more fully that according to general opinion the difference between theoretical and practical intellectual faculties is that the latter also have action as their object, but the former have contemplation as their ultimate end.
§24. Now this error is not only contrary to right reason, since all theoretical faculties have practical ends, as can easily be shown empirically. It also conflicts with true religion and is the result of the false opinion of the Gentiles, who believed that the essence of God consisted in contemplation.
§25. Various comments by the great Aristotle, whom they follow, are relevant here: “That beatitude based on contemplation is nobler than that based on practice; that the former is accompanied by a more sincere pleasure than practice; that theoretical contemplation joins humans more closely to God than practice does”; similarly: “That prudence serves wisdom …”4
§26. Instead of these trifles we prefer the saying of Paul, the wise Apostle who above all contemplation preferred love that is born from prudence.5
§27. This is all we have to say concerning the term prudence. The term right is understood in several ways. Above all, it is understood either as law or as an attribute of a person.
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§28. Law is defined in one way by Grotius, in another by Aristotle, and in yet another by jurists. The Scholastics, however, labor over this question in ways that are strange and inept at the same time. We define it thus: “A law is a command by a ruler obliging subjects to guide their actions in accordance with this command.”
§29. According to this definition, a law differs from advice and from a pact in various ways. And that is not controversial. You should, however, note the following in particular, because it is not commonly accepted: “A law is always binding, even without a pact; a pact never without a law,” though a law sometimes obliges via a pact. Then the pact is only the occasion for the obligation, just as opening the doors is the occasion for letting light into the room.
§30. The author of a law is always a ruler [imperans]. We would rather use this term than the term superior, as others do. For apart from the superiority associated with rule there are other superiorities, of order, for example, or of dignity, as well as superiority based on beneficence. Here we are not concerned with these.
§31. It follows that God does not act according to a law and that the eternal law is a fiction of the Scholastics.
§32. He on whom the law is imposed is the subject or the person obeying. This presupposes reason, and as brutes lack reason, they are not bound by law.
§33. Thus man remains. Therefore law is commonly termed a norm of human actions. But the action of man in conformity to law is, in one word, called duty.
§34. But there are different kinds of human actions. Some are specific to man, others are common to him and to animals and plants. Therefore, we must determine which ones law can regulate. And here we first need to form a clear idea of man himself and his essence and must rid ourselves of certain prejudices.
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§35. Man is a rational animal. This is how man is commonly defined. Nor does the scala praedicamentalis of substance in the books on logic allow any other definition, even though it neither corresponds to the intention of Aristotle nor is to the taste of Porphyrius, the inventor of this scale.6 But the same definition is subjected to a variety of criticisms by Chrysostomus, Cardano, van Helmont, Antoine le Grand, and others.7 We will retain it but add the necessary explanation.
§36. We do not believe an animal to be a living body with powers of sensation, but a living body endowed with locomotive powers. Indeed, as the most acute philosophers have shown us, animals lack sensation—that is, internal sensation—without which the external senses do not deserve the name of senses, and they are not moved in any other way than clockwork, except that the more subtle particles of air sometimes strike those animal organs which are the seat of the external senses in man and thereby cause internal movements.
§37. I know that this hypothesis will not please those who measure the truth of assertions by their antiquity. Yet, even if I could make no other reply to them, I would at least urge them to tell me, if, as I hope, they do not attribute powers of reasoning to beasts, what the difference is between [on one hand] basic sensation, the imagination and memory, which they attribute to beasts, and [on the other] human reason.
§38. Therefore, just as man has life in common with plants, he has the powers of locomotion in common with beasts. What remains is covered by the term rational. But human reason is nothing other than thought.
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See Descartes’ wise statement: “Man when he understands something, thinks; when he wills, thinks; when he feels, thinks.”8
§39. It follows automatically that the two functions of our reason that are usually listed, namely, the intellect and the will, need to be supplemented by a third, namely, sensation, which is distinct from locomotion but includes the sensitive appetite.
§40. Sense is commonly divided into internal and external. Vision, hearing, smelling, taste, and touch usually represent the external senses, to which some add sexual lust as a sixth; others add a seventh and eighth to all of these, thirst in the mouth and hunger in the stomach. The internal sensations are reduced to three kinds: basic sensation, imagination, and memory.
§41. All external senses, however many they are, are passions of the body, not actions of the soul. But insofar as there is a simple apprehension of these things, the result is a sense perception which we can accept being described as basic sensation, just as imagination is used to describe the sensation by which man forms ideas for himself from these passions or when he is prompted by them. Finally, memory is the term for the sensation by which man remembers a sense impression, while reminiscence is the term used if this act of remembering takes place by means of ratiocination.
§42. The Peripatetics, however, say and teach that all senses perceive sensible objects, the external senses passively, the internal actively. But just as passive perception is a fiction, so I do not understand how active perception can exist without thought; and so they who teach this must concede that the internal senses are identical to the power of perception of the rational soul, or else they themselves have no idea what they are teaching.
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§43. Furthermore, the sensitive appetite, as it is described in the schools, is nothing other than a will which approves of the object that delights the body. And