Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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follows from the definition of a state provided above, that every state is in its way a norm of law.
§30. But I believe that here I am being warned of violating the first practical principle when I am occupied with trying to demonstrate everything from it. For I said above that law is the norm of human actions. And now I say that the condition of humans is the norm of law. Will the law therefore simultaneously be the norm of humans and humans the norm of law? Thus, the same thing is and is not a norm at the same time.
§31. I will try to extract the response to this objection from you. Let us pretend that there are two kinds of humans in this world who are not known to each other by any intercourse and conversation, one with an erect and robust body, the other endowed with a weak body and a misshaped hump on the back of the neck, the head bowed down toward the earth. Imagine a diet was to be prescribed to each kind of humans by a physician, or that a garment was to be made by the tailor, so that each of the two is held upright and does not creep on the ground like a quadruped. Well then, do you think the prescribed diet or the specially designed garment will not be rightly called a norm for living, or a norm for walking?
§32. Moreover, do you not think that the physician in prescribing the diet and the tailor in making the garment must also study the nature of the
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bodies to which these norms are to be applied? Indeed, the physician will ban more kinds of food for the person with the weak body than for the robust person and will also supply medicines in smaller doses. And when the tailor is making the garment for the crooked people, he will have to leave space for the hump. And while in the garments of the former that material is sufficient which gently prevents them from bending down, in the latter case there is need for stiff metal strips which suppress their inclination to walking hunched over.
§33. But how does this concern me, you will ask. In these examples the norm and what is regulated by the norm are in no way the same. The condition of the body is the norm of the diet and the garment. But the diet and the garment are not the norm of the body, but of the corporeal actions. These are different things.
§34. I will respond that it is the same with law and a particular state. The state is the norm of the law; the law, however, is the norm of actions, which humans living in this state must perform.
§35. Leave me alone, you say, with your silly comparisons. You will not extricate yourself from my objection like that. This is all fictitious. But it does not suit him who professes the true religion to invent such things, which God revealed to us differently. Nor will you be able to protect yourself by appealing to philosophical freedom, since your philosophy must not conflict with the precepts of true religion.
§36. Yet I do not remember sacred Scripture prohibiting a fiction, and I do not remember the Augsburg Confession prohibiting that we argue from fictitious cases. Theologians often invent many things. The jurists make up a lot. Logic teaches how the young should argue from fictitious cases in an erudite fashion. But should, therefore, the treatise on fictions be eliminated from jurisprudence as a heresy? Should the books on logic be purged as heretical, which put forward this example of a hypothetical proposition: if the ass flies, he has feathers? I do not think so.
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§37. There can be no doubt that a lie is one thing, a fiction another. Granted that a lie is contrary to religion, yet a fiction is something fundamentally different.
§38. We shall say nothing here of fictions in Roman law, but a fiction, as we have used it, is nothing other than the first part of a hypothetical proposition which neither affirms nor denies anything, but only infers from the fiction the second part as a consequence. From this the axiom is known that a condition does not assume anything to exist. Similarly, it is not necessary for examples to be true.
§39. Therefore, the assertion stands that the norm of laws of nature is to be derived from the common state and condition of humanity. The comparisons we have used to propose this thesis remain intact, and we will use them in future to demonstrate related claims.
§40. For as we have deduced above that the state of man is twofold, that of innocence and that after the fall, therefore order demands that we see which state we must turn to in deriving the law of nature. But here I ask that you yourself reply to me.
§41. Let us assume that a physician lives among humans who are furnished with a weak body and poor health and is himself weak and must prescribe a general rule for staying healthy to his countrymen. Do you believe that he should look to the constitution of robust men, after he has gained some confused knowledge about them from a travel book, or after he has found out from the writings of some other physician what means such people tend to apply to preserve their health? And when he realizes that he cannot achieve this state of health among his own people, do you believe that he must look to an idea of health that is formed from the constitution of robust people and must devote his efforts to preserving or bringing about such a state of health?
§42. But—and this is the main point here—we have already shown very clearly that man, with his natural powers, cannot in this life recover the
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perfection of the state of innocence even to the smallest degree but must be content with what is left over.
§43. And why do we need to say any more about it? Paul, one of God’s elect, complained bitterly of this misery and that man cannot rid himself of this inclination to evil,48 and he is a witness greater than any other.
§44. I cannot accept this cliché, which all Peripatetics would approve of, that he who teaches a particular discipline must form an idea for himself of a most perfect state, even if such a state does not exist and cannot exist, given the present condition of humans.
§45. I do not criticize this view for having its origin, apparently, in pagan and especially Platonic philosophy. I criticize it because it is obviously not suitable for civil life. We are dealing not with abstract ideas of men, but with actually existing humans. Thus, the remedies to be used are those that will preserve them. Nor do I believe that someone will earn thanks who refers to More’s Utopia when a prince asks him about securing the utility of the commonwealth.49
§46. Moreover, there was a positive law in the state of innocence, too. If, therefore, the conformity with this state were the foundation of natural law, it would follow that positive laws would also be the norm of natural law.
§47. There are also many things today which did not exist in the state of innocence and would not have developed, not only particular societies but also specific states of humans and their offices, such as those of executioners, midwives, warriors, tailors, surgeons, almsgivers, etc. Not to mention the fact that there were or were going to be many things in the state of
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innocence that have no place today, such as the nudity of the first humans, marriages between brothers and sisters, and similar matters.
§48. Finally, if we look for an evident principle, the requirements of the doctrine of the Apostle will not be met because he wanted to refute the pagans on the basis of the light of nature. For if you ask why homicide is contrary to the state of innocence and the keeping of pacts conforms to it, Scripture will have to supply the missing answer in either case. There also remains an almost infinite number of controversies concerning the state of innocence, in which either side can be defended because Scripture tells us very little about this state.
§49. We shall, therefore, primarily consider the nature of man as it is: it is corrupt indeed, but (so that you do not quibble over the idea of a corrupt law) right in its own way. Since we are writing among Christians, we will on the basis of the same principle confirm and illustrate our opinion later by showing that the same principle of ours also obtained in the state of innocence.
§50. For man in the state of innocence and man after the fall do not differ in kind, just as humans with a robust and with a weak body do not. The conclusions vary in either case, but the general principles are the same in both. These principles cannot be learned