Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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good in the sense of useful is confused with good in the sense of honest. I know that they define law as a dictate of reason and stick to that error. I know finally that the
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Apostle who defined sin as the transgression of the law knew very well the formal characteristics of a despicable action.26
§87. Finally, how, without contradiction, could obligation diffuse itself from the object to the precept, since the efficacy of every obligation depends on reverence and fear of the legislator?
§88. Thus, are not all actions by their nature indifferent? They are indeed; that is, all physical actions abstracted from their moral circumstances are neither commanded nor prohibited.
§89. Yet you will say that blasphemy and theft, for example, by their nature are not indifferent. I say, however, that these are not terms for action considered with respect to their nature. For blasphemy involves a concept of deliberate choice, that somebody utters certain words expressing disrespect for God. Theft involves the concept of fraudulent removal. And because of these circumstances blasphemy and theft are already prohibited by an eternal law.
§90. If you abstract from these circumstances these actions will no longer be despicable. They will not even be blasphemy or theft. The physical action in blasphemy is the uttering of words which are blasphemous. A witness, for example, when he repeats these words in giving evidence, does not commit blasphemy. In theft physical action is seizing something that belongs to someone else, etc.
§91. Thus, in order to explain briefly what I mean: the Scholastics confuse the natural aspect of an action, that is, an action considered physically, with the moral nature of an action, that is, an action considered morally.
§92. But perhaps we are contradicting ourselves by refuting others. Is it not the same whether you say that the object of natural law is an action which
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is honest or despicable antecedently to the divine will, or you say that there are actions which have a necessary connection with or are repugnant to the rational nature of man? For if we declare that God commanded or prohibited these actions because of such a conformity or repugnance, do we not by that very fact concede that these actions are honest or despicable prior to the divine will? Do we not admit that obligation flows from the object to the precept?
§93. There is, however, no danger of that. It can indeed be inferred from our assertion that those actions that are the object of natural law are by their nature good or bad.27 Yet it cannot be inferred that they are honest or despicable. These actions harm or promote the utility of humankind, even if you abstract from the divine will, but as long as you remain with that abstraction, they are not commanded or prohibited by law, and they do not obligate humanity to anything.
§94. Thus it is certain that particular medicines are very useful for ill people, and some foods on the other hand are highly harmful to them. Yet these medicines or foods do not obligate the sick person to do anything, if you abstract from the will of the legislator. Remove the legislator and it will be true without exception that every person is the sole guardian of his own utility.
§95. Ah, you will cry, I have caught you! When fools avoid one vice they fall into another. According to your opinion, therefore, utility itself is the mother of justice and equity; nor does nature know just from unjust.28 And this is what Carneades declared, what the herd of Epicurean swine has taught, and Hobbes, the Epicurean, has largely warmed up and reheated. Thus there is no natural law or justice, or if there is any, it will be supreme foolishness, because by taking care of the well-being of others, one’s own utility will suffer. If this is not introducing the poison of atheism by deceit, what is?
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§96. Yet I cannot imagine anyone would be so impudent as to accuse us of such a belief when we have tried so strenuously to prove the existence of this very law and of natural justice and its differences from other laws. This is so especially since the utility of individual humans, which the above-mentioned philosophers turn into the origin of universal law, is quite different from the utility of all of humanity. Thus, just as public utility is the proper norm of private utility in a commonwealth, so too is common utility the norm of particular utility in the society of humanity as a whole. To put it briefly: not everything that is useful is honest, but everything that is honest is also useful.
§97. Thus natural law is divine law inscribed on the hearts of all men, obliging them to do what necessarily conforms to the rational nature of man and to omit that which is contrary to it.
§98. We will inquire in more detail into this conformity with the rational nature of man in the following sections,29 but the main feature of natural law, its immutability and the impossibility of dispensation, follows automatically from our definition, because the rationality of man is indeed immutable and does not allow for dispensation.
§99. There are various well-known objections, especially with regard to dispensation. One example concerns the removal of the Egyptians’ silver vessels commanded to the Israelites by God, the killing of Isaac, the lie of the Egyptian midwives, etc.30 Jurists have come up with an almost infinite variety of distinctions, which are all unnecessary, since clearly no dispensation took place there: these acts were commanded or recommended by God and thus were not theft, homicide, or lying, as prohibited by natural law. And so those who disagree with us confuse the change of the subject matter with a change in the law.
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§100. Yet you might argue that the very fact that these actions are not theft, homicide, etc., means God gave dispensation from the law of nature, since dispensation is a declaration by the superior that a law does not apply to a particular action. I would then respond that this confuses restrictive interpretation with dispensation, which is precisely what we warned against.
§101. Natural law can be divided quite conveniently with respect to natural human societies. Some precepts of natural law concern the common society of all humans, living among themselves in a state of nature, or, as we have said above, in a state of equality. Now that commonwealths have been introduced this is called the society of nations; others direct the duties of humans living in a commonwealth and in societies that form part of a commonwealth, such as households.
§102. The former is usually called the law of nations. You could, therefore, call the former natural law in the strict sense, for the sake of distinguishing it from the latter.
§103. Elsewhere the term law of nations is understood in different ways, either (1) as an attribute of a person or a faculty, which nations exercise with the permission of nature; (2) as the moral customs of several nations, when they tend to make use of their right unanimously and in the same manner (in this sense, possessions, wars, servitudes, commercial ties, etc., are said to be matters of the law of nations); (3) as a law, and in fact as natural law in general, because this does obligate all nations; (4) as the civil law of many nations (here private persons’ means of acquisition, which are said to be of the law of nations, are relevant); or (5) as the law of nations in the proper sense, which describes the duties of nations qua nations toward each other.
§104. It will, however, be quite apparent that in the controversy whether the law of nations is a species of divine law or of human law, it is necessary to pay attention to the ultimate meaning. If we take this into account we can easily respond to those people who join Grotius in turning the law of nations into a form of conventional and human law. For they are talking
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either of the moral customs of nations or of right understood as the attribute of a person.
§105. In sum: The nations are equal among each other, and they do not acknowledge a superior among men. Therefore they cannot be under an obligation from human law.
§106. But, you say, they are bound by a lawful agreement; that is, they are bound by their own will. I repeat, however, that an