Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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added physicians, too, since someone discussed the laws of nations concerning headaches in a public disputation at a Catholic university.38
§10. The disputations of the ancient philosophers on the supreme good are relevant here. For Polemon the Platonist philosopher said, and Zeno and the Stoics, who received this opinion from him, taught everywhere, that
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the supreme good is to live according to nature. Plato taught the same, as did Aristotle.39
§11. So far the ancient philosophers agreed on the matter itself. The aim of all of them was to teach that a peaceful life of man with others is the supreme good. When they should have clarified this and taught the means of acquiring it, they quarreled over inane matters, which were irrelevant to the question. Do you believe that someone who says that the supreme good consists in an act of virtue becomes better able to acquire the supreme good than he who says that it is a habit of virtue or he who wants it to be a pleasure of the mind? Do you not believe that those people who argue over whether money consists in the physical object, the quantity, or the aptitude to buy other things are unable to make a profit, while in the meantime others are carrying out commercial transactions?
§12. Thus, we leave all of them to their mad wisdom. Justinian claimed that there were three precepts of right: “Live honestly,” “Harm nobody,” and “Render everyone his due.”40
§13. In fact, his generosity is a little overwhelming. We are looking for one proposition, and he gives us three instead. Let us pick the best one.
§14. The precept “Do not harm anyone” has to my knowledge not met with universal approval, maybe because it was too narrow. The other two have found some adherents.
§15. You may see some arguing vigorously that in the precept “Honest actions are to be performed, despicable actions are to be omitted” the sum of all natural wisdom is concealed. We do not object to that, but we would like some evidence. What is honest? No matter whether you call that honest which conforms to a law or that which conforms to reason, we are still not
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enlightened. For we shall then ask, “What is that which conforms to reason and law? You explain something obscure with something equally obscure.”
§16. Yet we fear above all that we will be ridiculed by the entire world if we attempt to put forward the idea of innate principles against those who deny the perspicuity of this axiom and if we wanted to censure them for denying the very first principle.
§17. But as far as the third precept is concerned, “Render everyone his due,” we see no reason why we should glory in it as if it were a newly discovered continent after the jurist had already mentioned this in his time in the definition of justice. If this precept really were evident, it would be surprising why none of the many ancient glossators, who studied the same with such great diligence, ever arrived at a clear idea of it.
§18. I think something similar ought to be said of another slogan of Roman law, that “everyone should live by the same law he uses to settle the legal cases of another person.” A similar rule is “What you do not wish to have done to you, do not inflict on another.” All of this is true; these are pious sayings, but they are not evident, nor are they adequate. They do not apply to relations between unequal persons. They cannot be applied to the duties of man toward himself.
§19. We almost forgot Hobbes. He put forward the following fundamental law of nature: “Seek peace, where it can be had, and where it cannot, resort to war.”41 Not bad indeed, if only Hobbes had meant what he said, and if only by peace he had meant the peace of all. A little earlier he had said that the first foundation of natural law is that “everyone should protect his life and limbs as much as he can.”42 Many scholars have already shown that this is false. That norm regulates the instincts of brutes. The excellence of man requires a different rule.
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§20. Until now we have easily cleared the field of lightly armed soldiers and fresh recruits who had little support. But now we need to resort to heavier weapons. The enemies attack in droves; their bold leaders march ahead of them: Sanchez, Rodriquez, Vasquez, names bound to instill terror.43 What then shall we do? Shall we flee? Shall we fight? The former is shameful. The latter is audacious. Either is prudent. We will flee, since even a Horace flees.44
§21. Therefore, having placed ourselves outside the battlefield we expect their approach. What need, they say, is there to search laboriously for a norm of reason? Man is created in the image of God, and it therefore must be the case that in the state after the fall the rays of divine sanctity and justice, which are, so to speak, relics of the divine image, shine forth in man. Thus, since God did everything according to the norm of his divine sanctity, goodness, wisdom, and justice, and so imposed on himself out of his own free will a quasi-eternal law, it has to be the case that natural law is also based on this archetype, and therefore to conform to right reason is the same as conforming to divine sanctity and justice.
§22. What do we say to that? Let us examine whether this proposition, “whatever conforms to divine sanctity is commanded by natural law, whatever does not conform to it is prohibited by natural law,” conforms to the above requirements. I will not comment on its truth. For we have already shown above45 that this eternal law is a fiction of the Scholastics and that God is not subject to a law, except in a very improper sense.
§23. Let us then consider the adequacy. And this norm seems to us wider than what is regulated by it, and in another respect narrower. For do you
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not believe that divine positive law is also based on its conformity with sanctity and justice? But we are already seeking the axiom from which we could derive the conclusions of natural law.
§24. If you respond that positive law is founded in conformity with the divine will, natural law in conformity with its sanctity, antecedently to the divine will, I will return to the comments I have already made above on this improper notion of divine attributes.
§25. But it is also narrower. Natural law dictates gratitude. But how do you deduce this virtue from the archetype of divine justice? Who ever did God a favor in order to have it returned?
§26. But above all we miss evidence. I will not repeat that virtues and justice are predicated of God in human terms and improperly. You should only consider this: natural reason provides no or only very confused notions of the image of God and its sanctity, but Scripture must here do its best. Hence, if a pagan asks why homicide, for example, is contrary to divine sanctity, or why keeping agreements for example is according to his justice, we shall either not have a reply or we shall have to draw on sacred Scripture and so meddle with it.
§27. I believe, however, that this belief of the Scholastics in the conformity of natural law with the divine essence owes its origin to pagan philosophy. For Augustine and Clement of Alexandria46 mention that Plato defined the supreme good and the essence of virtue as man becoming similar to God. The ineptitudes of the Stoics, who compared their wise man to God, are widely known.
§28. We therefore remember the saying of the apostle and do not seek the norm of natural right outside of man, but in man himself, in whose hearts
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it is inscribed.47 Let it be the case that there is in human reason an image or some remnant of the divine image, yet why do we not look at this reason of man in itself rather than in relation to something outside itself? Human reason is indeed something that exists in itself, not a mere relation the essence of which only consists in the fact that it is related to something else.
§29. Thus, we believe that the condition itself of humanity or the state of all of humanity is the norm of natural law. And why should we not think that? Indeed, natural reason itself, which almost everybody speaks about, is a condition of this