Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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in every case a law binds via an agreement. We have already said this above.
§107. Thus the nations are (all) under no obligation to each other from an agreement. For where and when was an agreement of this kind established?
§108. The notion of a tacit agreement will not help you out, as if nations bound themselves by imitating each other and by continuing to use certain actions which were initially undertaken by a few. I do not admit the existence of such a universal and continued imitation of this kind and I deny that imitation alone implies a tacit pact.
§109. Perhaps the manners and customs of those who use this law mean that the law of nations is unwritten. But perhaps they do not. There is no unwritten law outside of a commonwealth. For custom is law because of the tacit approbation of the prince. When that is lacking, the custom is called de facto. Yet where among nations do we find the tacit approbation of a prince?
§110. The Scholastics, moreover, divide precepts of natural law into affirmative and negative. That is easy to understand and applies to all laws, but the usefulness of this distinction is exiguous.
§111. “No,” says the Scholastic; “it is a hugely useful distinction. Affirmative precepts are always binding, negative precepts always and at all times.”
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§112. “Nonsense,” I reply; “what poppycock. Let us speak in such a way that we understand each other.”
§113. Both types of precepts are always binding; that is, they are eternally true. But affirmative precepts are not binding at all times; that is, they do not bind all humans, nor do they bind in every single moment. Examples are the command to honor your parents, give alms, etc. But the negative precepts bind everyone and at all times. An example is the command not to insult anyone.
§114. So do the precepts “Obey a superior,” “Live honestly,” “Render everyone his due” not bind all humans at every time? And does the command “Do not commit a crime of lèse majesté” bind all humans and, for example, the princes and sovereigns themselves?
§115. You see that these effects do not depend on the affirmation or the negation, but are to be derived from elsewhere. The laws of nature either impose duties on humans living in any society whatsoever, or they impose duties that are peculiar to particular societies. Likewise, man can omit a thousand entirely different actions in one and the same moment, but he cannot perform these several different actions in one moment.
§116. Those are the subtleties which anyone can understand without pretty formulae. Moreover, we do not believe it is right to use this distinction to say that affirmative precepts of natural law always allow for an exception in cases of supreme necessity, and negative precepts do not. That will be clear from what is to be said in its proper place.
§117. Divine positive law is divine law publicized to humans through divine revelation and directs those actions that do not have a necessary connection with the rational nature of man.
§118. Thus, it is evident that this divine law is mutable and admits dispensation, but only by God, not by the pope or any prince. Yet the will of God is not therefore changeable.
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§119. Positive law is divided into universal and particular. There is no doubt concerning the latter, but the existence of the former is denied by some and defended by others. I think that the question what it is needs to be examined before the question whether it exists, if this can be done while preserving peace with the Scholastics.
§120. We speak of universal law with respect to all of humanity, particular with respect to a certain people. This distinction can, however, be taken in a twofold sense, either in relation to publication or in relation to obligation. Either meaning is relevant here, but publication is more important.
§121. Thus universal divine positive law is that which has been publicized to all humans or to certain persons representing all of humanity. The particular law is that which was given to the Jewish people.
§122. The Jews not only affirm all too confidently that this universal law was given to Adam and Noah, but they also describe it in their own way, mixing as they are wont to do false statements with true and augmenting natural law with positive law, mainly from their rabbinic traditions, whose opinion Selden, that ornament of Britain, explained in more detail in a work devoted to this particular question.31
§123. We have set aside all these traditions and look only toward Scripture, and so choose the middle way: we cannot deny the existence of such laws. For not only was Adam given the precept concerning the forbidden tree, and on avoiding polygamy and divorce, when marriage was first established, but Noah too was ordered to punish homicide as a capital crime and to avoid eating blood, etc.
§124. It is clear that these are positive laws because the relevant actions do not have a necessary connection with the rational nature of man.
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§125. We will survey the forms of this positive law in their proper place. We should only note this in advance, that these positive laws direct the duty of man either with respect to the worship of God or with respect to other humans. In the former case they have eternal beatitude as their immediate object. The latter have temporal well-being as their immediate object.
§126. Divine particular law is either ceremonial or forensic. The former concerns the regulation of divine worship, the latter the decision of court cases among the Jews. In the forensic law God aimed at the particular temporal well-being of the Jewish people, in the ceremonial at the eternal beatitude of all of humanity.
§127. Therefore, ceremonial law for the greatest part (that is, insofar as proselytes too were bound to its observance) binds all humans.32
§128. Thus, ceremonial law is, so to speak, in between forensic law and that law which we have called universal law. Universal law is such by virtue of its universal publication and obligation. Forensic law is particular in both respects. But ceremonial law is particular in its publication, universal in its obligation.
§129. For all precepts concerning religion are universal in terms of their obligation, for there is only one religion which cares for eternal salvation. They who neglect it are punished eternally.
§130. Nor should you be distracted by the common rule that “a law which has not been publicized is not binding.” This actually means that the (positive) law is not binding before it has been published. It does not mean that it binds only those to whom it has been actually publicized. For this would lead to many limitations, including, without doubt, the following: unless the subjects to whom it has to be publicized are at fault and do not admit the publication, for example, if they are rebels.
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§131. Forensic law has been extinct since the Jewish commonwealth has been extinct and the Jews have been dispersed over the entire globe. Ceremonial law expired with the advent of Christ, who having first fulfilled the law introduced new sacraments and a new religious worship, either by himself or through his apostles. This obligated all humans, in the same way, as once the Jewish law did, as we have said. About this there is all the less doubt, as the apostles were ordered to preach the gospel to all nations.
§132. However, Christ should not be called a new legislator because of that. For those who use that phrase imply that Christ also changed something in those precepts which concern the duties of humans to each other and required a more perfect obedience from Christians in the New Testament. But that would obviously contradict the infinite wisdom of God the Father, and it is also refuted at length by the theologians.
§133. So, does the particular Mosaic law and especially the forensic law have no use today? Grotius claims it has a threefold use: one is to show that the commands of those laws are not contrary to the law of nature. Another is to show that Christian magistrates may now pass laws that are similar to those given