Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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nations or civil. But in truth this is the same as the division of right into connate and acquired, apart from the fact that it has three elements.
§129. For the right that takes its origin immediately from the will of God is usually called natural right [ius naturalis]. That which is produced by an agreement between different nations is called the right of nations [ius gentium]. Finally, what is derived from the will of a human sovereign is termed civil right [ius civilis].
§130. Accordingly, liberty belongs to natural right. Property, contract, and servitude are matters of the right of nations. Legally binding promises and in some sense the power of the head of household are said to belong to civil right.
§131. Yet we must beware of confusing these meanings of the term right with the division of law [lex] into natural law, the law of nations, and civil law, especially as this confusion is not uncommon among jurists and moral philosophers.
§132. This observation is of use in many questions, as will be shown in its proper place. The particular reason for avoiding the confusion [between right and law] is that the right of humans, insofar as it is a faculty, can be changed completely by a superior, even if it is a natural right or part of the right of nations. We will explain below that the opposite is true of natural law and the law of nations.
§133. Related to this observation is the well-known rule that “everybody can renounce his right,” though I believe that this must be qualified as follows: “unless this right is a necessary means of fulfilling an obligation.”
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§134. The correlate of right is obligation. Obligation is a passive moral quality, imposed on a person by law and restricting his liberty by forcing him to give something to or do something for another person with whom he lives in a society.
§135. This definition can be explained largely with the comments we have made about right. Yet it has to be noted that the restriction of liberty, which is the essence of an obligation, is nothing other than an act of reasoning that is based on knowledge of a law prescribed by a superior and informs a person of the anger of this superior and the punishment that will follow if the law is broken.
§136. This makes it clear that there can be no obligation without a superior, and least of all one without God. Whence again it follows that obligation does not properly speaking have its origin in agreements.
§137. Giving and acting differ as follows. To give is to transfer property. Acting comprehends all other actions and the failure to perform an action.
§138. There are as many types of obligation as there are types of right.
§139. For in correlates, what applies to one also applies to the other. Thus it follows necessarily that all obligation toward a human being is mutable, be it a natural obligation, an obligation of nations, or a civil obligation.
§140. Obligation is changed in some cases by the will of a superior, if he abolishes the right of the person to whom the obligation is owed, and in some cases by this person’s spontaneous renunciation of his right.
§141. Beware, however, of confusing a law that imposes an obligation with the obligation which is the result of the law. For even if the latter is mutable, the law can still be immutable.
§142. Grotius adds a third meaning of right to the two we have mentioned so far. He argues that it is also applied to the attributes of an action. But
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this meaning pertains more to what is right in a particular case than to the concept of right.
§143. An action, however, is right [actio justa] in general if it is either commanded by a law or is permitted; and it is permitted either because a person has a right to it or because there is no punishment for it.
§144. For a just or honest action is, to use Grotius’s expression, just in the positive sense if it is commanded by the laws, or permitted, that is, just in the negative sense, when it is not prohibited by the laws.
§145. A permitted action is either perfectly, fully, ethically, and internally permitted when it is based on a faculty pertaining to a person, or imperfectly, not fully, politically, and externally permitted when it is contrary to law, but not punished in a human court.
§146. These just actions can be compared with each other with respect to the law: an honest action is one that is according to law; an action that is tolerated, but not fully permitted, is contrary to law; and a fully permitted action is not contrary to law. Or they can be compared with respect to the legislator. No action is incompletely permitted to God, though this can be the case with regard to the prince.
§147. This meaning of a just action is compatible with the preceding two meanings of the term right because it comprehends each of these two [that is, law and the faculty of a person] within itself. It differs, however, insofar as the term right there is discussed in an abstract sense and directly, while here [i.e., in the case of a just action] it concerns a specific case or is discussed indirectly; it also differs insofar as the meaning of a just action is less strict and includes an action that is tolerated, which pertains neither to a law nor to a faculty.
§148. But just as the term a just action is taken in a threefold sense, so the expression “an honest action” is sometimes predicated of an action that is fully permitted, so that the term a permitted action is often extended to an honest action.
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§149. And although the terms permitted and authorized are almost synonymous, the scope of permission is wider than that of authorization. Permission is either a matter of fact, which only indicates the removal of an impediment but has no effect on the rightfulness and does not lead to an authorization; or it is a matter of right, which guarantees a secure conscience, or at least freedom from punishment. It is then either a full or an imperfect authorization.
§150. The opposite of a just action, the unjust action, can be taken in a broad sense to describe everything that is contrary to law. It then includes any action that is not fully permitted. Or it is taken in a strict sense and is distinguished from this action, which is then said to be dishonest, despicable, and not permitted, though the terms “dishonest” and “not permitted” are subject to the same ambiguities we have pointed out in our discussion of honest and permitted actions.
§151. An unjust action is also described as an injury, but an action tends to be described as unjust with reference to the legislator and as an injury with reference to the victim. This is the origin of the rule that “a person does not suffer an injury if he agrees to it.” And an action can be unjust even if there is no injury.
§152. In other cases the term injury is either understood very broadly as anything that is not done rightfully, even by those who have no intention of harming, or broadly as the denial of any right, either perfect or imperfect, or it is understood strictly as the denial of a perfect right, or very strictly as a personal insult.
§153. Finally, not only the action but also the human being is called just and unjust. An action is called just or unjust depending on whether the external actions of a person conform to law. A person, however, is characterized as just or unjust depending on the intentions behind his actions.
§154. Which of these many meanings of right is relevant to jurisprudence? All of them, in some sense. Jurisprudence not only instructs us how laws are to be passed, explained, and applied, but also explains the nature of the
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faculty belonging to any particular person by right and provides means of protecting and preserving it. It also gives advice on how actions are to be undertaken according to law so that they turn out just, and it judges those that have been undertaken to determine whether they are just or not. And it does all this with the intention that men may become just.
§155.