Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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duties of man toward God, the second in demonstrating the need for a society, the third in comparing diverse precepts of natural law with each other and elsewhere. The fourth belongs to jurisprudence, especially human jurisprudence.
§61. We now return to the argument. We have said that in either state of man, that of innocence and that after original sin, both forms of divine law, natural and positive, had a place. Concerning natural law, perhaps, there is no doubt. Positive, revealed law in the state of innocence was that which prohibited eating from the forbidden tree, as well as the prohibition of polygamy and divorce when marriage was originally established. In the state after the fall from grace there are various positive laws, about which more will be said later.
§62. We are, however, trying to explain the divine laws to the extent that they are relevant to jurisprudence. I therefore believe it is evident that we are primarily concerned with those laws which govern the postlapsarian state. For jurisprudence must explain the laws which are to be applied to
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human actions subsequently [to the state of innocence]. We are not, I believe, judging our first ancestors [that is, Adam and Eve], we are not their lawyers, and we are not concerned with their actions, but with humans of this age who retain only remnants of the original felicity. If only they can preserve these, that is enough for tranquillity in this life.
§63. Now let us see the differences between these two laws. Usually authors look for the difference in the fact that natural law binds all humans, while positive law binds only the Jewish people. But it will be clear from the following that this is not sufficient.
§64. (1) For a start natural law and divine positive law differ in their principles of knowledge: in natural law this is right reason; in divine positive law it is divine revelation.
§65. The proof of this difference is derived from the second difference. The Apostle Paul recognized this difference exactly, and this is clear in part when he said that those nations that did not have the positive law did by nature what was according to natural law, and in part because he declared that he would not have known from reason alone that concupiscence is a sin, unless the divine positive law had said, “Thou shalt not covet.”24
§66. By right reason I here mean a natural faculty of reasoning or deriving true conclusions from true first principles. But as is obvious to anyone, man has this faculty from birth as a potential. This is suitable for exercising his powers if, with the input from the senses, the ideas have first been formed by the intellect and the same potential has later been exercised in human society.
§67. Therefore, we cannot but laugh at the excessively subtle meditations of the Scholastics, who teach that infants have certain practical principles by nature that have the form of a kind of innate faculty, and these tell them what is to be done or omitted according to the law of nature.
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§68. Each practical principle is a proposition. Every proposition indicates whether a predicate does or does not conform to the subject. Yet infants are destitute of the knowledge of terms, especially moral terms, since even adult, erudite humans barely agree on their meaning. Who would, therefore, believe that infants, for example, know that murder is to be shunned and that agreements are to be kept, since they do not know what an agreement is, what murder is, etc.
§69. The Scholastics themselves are unsure whether this innate faculty is only a potential in infants or is already present in them. Some have reached the point of saying that this faculty is neither of the two, but is somewhere between being actually and potentially present. Thus, we have a particularly felicitous solution whereby something is put forward which can both be and not be at the same time.
§70. Even if positive law is derived from divine revelation, it is not permissible to argue as follows: This act, which is commanded or prohibited in Scripture, is recognized as honest or despicable by pagans, too. Therefore, it is part of natural law. For these pagans are either Greeks or Romans. The Romans took their laws from the Greeks. The philosophers of the Greeks borrowed much from Moses. Solon similarly introduced many laws from Egypt to Athens. The Egyptians, however, took the rudiments of their laws from the Hebrews.
§71. (2) These laws differ in that natural law is concerned with actions that either conform necessarily to the common rational nature of man or are contrary to it; positive law is concerned with actions that are neither.
§72. For since it is apparent from natural reason that God wanted man to be rational and also for his actions to be subject to a particular kind of norm, it follows necessarily—to avoid contradiction—that God wanted to command the actions which necessarily further the rational nature of man and to forbid those which are contrary to it. But since there are many actions by which, when they are committed or omitted, the essence
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of man is neither violated nor furthered as such, man will not be able to know how these are regulated. Here the promulgation of a whole other law is required.
§73. I speak of a necessary conformity of an action with reason whenever the omission of an action by humankind would necessarily cause it to perish, and of repugnance to reason whenever humanity would perish as a result of this action being committed.
§74. This difference is interpreted differently by the Scholastics and indeed in various ways. For sometimes they say that what pertains to natural law is actions that are in themselves and by their nature, even antecedently to the divine will, honest or despicable, while indifferent actions pertain to positive law.
§75. Sometimes they say that obligation in natural law flows from the object to the precept; in positive law, however, from the precept to the object.
§76. Yet none of these definitions are that good. You could say that actions determined by natural law are honest or despicable as such [per se] with regard to their immutability. But they apply this expression “as such” to imply that this is antecedent to the act of commanding natural law.
§77. However, they contradict themselves when they say that certain acts are by their nature honest or despicable. In a human action you can consider either its nature or its morality in relation to a law: its nature insofar as it is abstracted from moral circumstances, and morality insofar as the moral circumstances are examined.
§78. Moral circumstances are covered in the common phrase who, what, where, etc.25
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§79. But beware of thinking that, where one or another of these circumstances is present, there is immediately a moral circumstance.
§80. For otherwise you would have the absurd consequence that no action could be considered as a natural phenomenon, since every action certainly involves one of these circumstances.
§81. Thus these circumstances are called moral insofar as a law commands or prohibits a particular action because of these.
§82. And so he who calls certain actions honest or despicable by their very nature says that certain actions are by their nature moral. But he who says so does in fact declare that certain actions, if abstracted from their moral circumstances, by virtue of this abstraction involve moral circumstances.
§83. Further, an honest action is one which is commanded by a law, a despicable action one which is prohibited by a law. A law, however, is the will of the legislator, and the source of all laws is the divine will.
§84. So they who want certain actions to be honest or despicable antecedently to the divine will also want certain actions to be commanded or prohibited by a law that is prior to law.
§85. I know indeed that a distinction is made between honest actions considered materially and formally; they claim that laws are defined materially by us, but that those actions are honest or despicable formally which conform to the dictate of right reason.
§86. Yet I also know that the distinction between material and formal, when applied to moral affairs, is either obscure or superfluous, and in most cases unsuitable.