Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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human will was free, but not in the sense of being “indifferent.” It was free insofar as it was “spontaneous,” that is, insofar as the external actions of the agent corresponded to the intentions of his or her will and were not frustrated by external circumstances and accidents.36
The degree of this “spontaneity” also determined the extent of an agent’s moral responsibility. A person, for example, who aimed a gun at a bird and shot a friend by mistake could not be said to have acted “spontaneously” and to be guilty of murder, since the person had not intended any harm to the other.37 The choices of the will, however, were not free in the sense that the agent could have chosen to will something different. The will was not an ability to choose but was best described as a passion, desire, or love that provided the motive force and direction of human actions.
This love always had a determinate aim, though this aim could vary
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from person to person and according to external circumstances: some, for example, loved sensual pleasures; others, wealth or honors.38 The direction of this will-as-love or will-as-passion could not, however, be influenced by the other main faculty in human nature, the intellect (or reason), because conclusions of the intellect did not have the power to motivate actions. They only informed the will how to achieve its ends, not which ends were or were not desirable. As David Hume would later put it, reason was the slave of the passions and ought to be nothing else.39
In defining the will as love or passion, Thomasius was drawing on a rich intellectual tradition to which he had been attracted since at least the late 1680s.40 This was predominantly French and had emerged from the revival of interest in the thought of St. Augustine, following the posthumous publication of Bishop Jansen’s Augustinus in 1640. Its central feature was a deeply Augustinian attempt to explain virtue and vice as the respective products of different varieties of love or desire.41
“Reasonable love” (amour raisonnable) described that form of desire directed toward virtuous ends. Opposed to it were various kinds of corrupt love that drove humans toward pursuing selfish and immoral ends. From the early 1690s Thomasius had similarly begun to explain moral and immoral action as the product of “reasonable” and “corrupt love,” respectively.42 He also began to argue that the change from “corrupt” to “reasonable” love could take place only as the result of religious and spiritual regeneration, an argument that subjected him to charges of religious “enthusiasm” and caused him to somewhat modify his views around 1700.43
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Yet it is arguable that Thomasius’s notion of “reasonable love” continued to be closely tied to a particular and rather heterodox form of Christianity, which I have discussed elsewhere.44
Thus, reasonable love was the foundation of true virtue and of a life fully conforming to natural law. Thomasius was, however, convinced that the majority of humans would never be guided by reasonable love but would continue to follow their corrupt desires. The human legislator was powerless to change them: threats of punishment could influence external actions but not turn corrupt into reasonable love, since sincere love could never be the product of coercion. Human society could nevertheless function tolerably well because it did not require the complete conformity of its members to natural law. In particular, Thomasius distinguished between three levels of natural law, not all of which depended on the presence of reasonable love.45
The first was the iustum (the just), which was summarized in the negative precept not to do to others what you would not have them do to you.46 The iustum marked the lowest degree of conformity to natural law, but it was also the one most essential to human society, which would disintegrate without it. Obedience to the negative precepts of iustum did not require reasonable love in the agent but could be enforced through threats of punishment and fears of revenge.
The second level was the decorum (the decorous). Its main principle was the command to do to others what you would have them do to you.47 It covered, for example, acts of benevolence or politeness toward others. Unlike the negative precept of the iustum, the main precept of decorum was positive and therefore could not be binding on everyone at all times. For, while it was possible to abstain from harming any other person at all times, one could not perform acts of benevolence or kindness toward all other people in every single moment. Some acts of decorum might be commanded by the legislator and enforced with threats of punishment, though they were then not usually the expression of reasonable love but of fear.
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The third level of obedience to natural law was the honestum (the honest), which demanded that humans rid themselves of corrupt passions and be guided by reasonable love, for the sake of their own happiness and well-being. Thomasius summarized the main command of the honestum as “Do unto yourself what you would like others to do to themselves.”48 The honestum represented the highest degree of conformity to natural law, though its violation also represented the smallest evil, compared to the violation of the rules of iustum or decorum, which were more important to social life. Those who fulfilled the precepts of the honestum, however, also observed those of the decorum and iustum, because they acted out of reasonable love, while obedience to the rules of decorum and iustum might be founded on motives other than reasonable love and thus did not automatically imply obedience to the precepts of honestum.
This emphasis on passions, love, sentiments, and related terms in moral theory became a prominent theme in Enlightenment thought. It was, for example, characteristic of the new genre of didactic “sentimental” literature, which was produced for the growing reading public of the eighteenth century.49 Moreover, Thomasius’s arguments about the passions were central to discussions by various German moral theorists in the eighteenth century, men such as Nicolaus Hieronymus Gundling, Johann Friedrich Hombergk zu Vach, and Johann Jacob Schmauss.50
There are also striking parallels between the evolution of Thomasius’s natural jurisprudence toward this greater emphasis on the passions and the broader development of moral thought in early-eighteenth-century Europe. A member of the St. Petersburg academy of sciences, Frédéric-Henri Strube de Piermont, commented that natural law was based on “the passions insofar as they conform to nature.”51
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There is a very similar emphasis on passions and sentiments in the moral philosophical literature of the Scottish Enlightenment, ranging from Francis Hutcheson’s Essay on the Nature and Conduct of the Passions and Affections (1728) to David Hume’s Treatise of Human Nature (1739–40) and Adam Smith’s Theory of Moral Sentiments (1759). Thomasius does not seem to have directly influenced these later debates in the Scottish Enlightenment; the similarities are, however, remarkable, and they strongly suggest that the changes in Thomasius’s natural law theory between the Institutes and the Foundations exemplify a more general development in the natural jurisprudence of the early European Enlightenments: a transition from a focus on laws and commands, which had been characteristic of Pufendorf’s voluntarist natural jurisprudence, to a moral psychological emphasis on passions and sentiments as the true springs of virtue.
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The translation of the Institutes is based on the 1688 Leipzig Latin edition. The translation was then compared to the seventh Latin edition of 1730 (reprinted by Scientia Verlag, Aalen, in 1994) and the contemporary German translation (not by Thomasius himself) of 1709, reprinted by Olms Verlag, Hildesheim, in 2001. The translation of the chapters from the Foundations is based on the text of the first Latin edition of 1705. The fourth Latin edition, published in 1718 and reprinted by Scientia Verlag, Aalen, in 1979, has also been used. This later Latin edition contains some additions to the 1705 text, which have not been included in the translation, though some of the information in the additions has been incorporated