Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
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if there were any laws which contradicted natural jurisprudence, I tried in the preparation to see whether I could find a means of reconciling these with each other using the rules of sound interpretation drawn from Grotius and Pufendorf. I then consulted other authors and if I found them agreeing with me I was confirmed in my opinion; if they disagreed I compared them with my exposition and with each other and again applied these same rules of interpretation, always banishing the prejudice in favor of authority. Thus, I sometimes rejected a solution even if it stemmed from Bachovius16 and approved another, even if it was by Manzius.17
§15. Natural jurisprudence, however, helped me not only in the theoretical interpretation of laws. When I turned to legal practice, to try to apply law to individual facts (without which theory is a cadaver destitute of a soul), I became aware that it was of even more use, since very often the infinite variety of circumstances, which characterizes matters of civil law, produces a case and a situation which is either not covered by civil laws at all or to which several conflicting laws apply. Thus, if someone cannot draw on common principles or the rules of extending or restricting laws, he must often laboriously use the many myriads of advisers, respondents, and people who make decisions, from Germany, France, Italy, Spain, and almost the entire world, until he finds a case at the very end, as they say.18 And even then, when an appropriate case has been found, it is still unclear whether the judges to whom the decision of the case pertains favor the same opinion as the author of the decision. He who provides a good definition of the general foundations of law inscribed on the hearts of humans can easily master this Herculean labor. At the same time he can easily avoid this danger by other means which we shall not discuss here.
§16. Yet, after a few years I withdrew from legal practice, since I believed that I had done my part in scrutinizing the application of civil law to the
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affairs of humans and the benefits and disadvantages of legal practice. I also knew that man was meant for civil life rather than a solitary life, and that jurists in particular had the hope, held out to them as a prize, that once they had studied Roman law and acquired experience in legal practice they would be promoted to high offices in the commonwealth. And yet I felt there to be as great a difference between the law court and the court of the prince as that between night and day. For even if I leave aside countless other matters which I could mention here, one needs a mind willing to suffer mob rule to bear patiently the tedium of the law court; but since I did not find this quality in myself (since though I very gladly bear all burdens imposed by the prince, God’s representative on earth, I am a little less patient when it comes to putting up with the tedious affairs of the general population) I sought leisure in domestic study which would bring with it the tranquillity I was hoping for. And since I was persuaded that my thoughts were now in such an order that young students would benefit from having those thoughts communicated to them, and since some asked me for my opinions, I began to devote myself to you, my dearest listeners.
§17. Above all I made an effort to restore the universal foundations of law, derived from natural law, which students at this university have neglected for long enough. Nor were my efforts without success, thanks to the help of God. I first lectured on this most useful doctrine, according to the work of Hugo Grotius, seven years ago. Your attendance in large numbers, which I had not expected, encouraged me. But immediately after finishing the first book, you left me alone with Grotius, although I had had a full room the day before. The fear of the plague had driven you away from Leipzig. I had almost despaired (such little confidence do the minds of humans have in divine benevolence) of having another opportunity of this kind; but once the situation had improved and you returned to me without fear, I picked up the thread which had been interrupted for two years. You then attended my lessons diligently until I finally completed the task with the help of God. I then compared Grotius with Pufendorf and with all of his commentators, always following the principle of the freedom of philosophizing by adding my opinion whenever there was a controversial
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matter. But above all I tried to clarify the ambiguities in Grotius’s text and not to leave aside a single word which could occasion obscurity.
§18. My doctrine had not displeased you, just as your diligence could not but please me. Soon after I had completed the course on Grotius there were some who desired a repetition. I agreed, but instead of the work by Grotius I proposed that most elegant little book by Pufendorf On the Duty of Man and Citizen.19 Apart from other reasons, you yourselves realized how many hours were previously devoted to the investigation of the ideas of Grotius—time we could save by looking at a perspicuous author and which we could direct to more useful ends. Yet, because you demanded a fuller history and knowledge of the principles for which this illustrious man has been criticized and still is being criticized, I began with a more elaborate discussion of these same matters over the course of several months and presented them for teaching purposes as a consideration of jurisprudence in general. I acted openly toward you and sincerely: I put forward arguments on both sides of the controversy, and before I submitted my resolution, I took first this side, then that, in order to accustom you to paying more attention to the reasons than the authors of opinions. I demonstrated the sources and the origin or occasion of doctrines and the connection of conclusions with the first principles, which varied according to different hypotheses, and I took great care that in my hypotheses (mine, however, were those on which Pufendorf himself had constructed his discipline) I always proved my assertions through necessary inferences from the first practical principle, which had previously been demonstrated according to analytical rules. Then I turned to Pufendorf’s text and, following his method step by step, never ceased to recall the hypotheses of either side to you in the particular controversies and to show the connection of even the remote conclusions with them. Sometimes, though rarely, I even indicated how the difficulties of contrary opinions could be avoided
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by other means, or which weighty reason drove me to make use of my liberty and, resting on common hypotheses, to incline toward an opinion different from that of Pufendorf.
§19. I did not write down what I had discussed but communicated to you whatever the memory of my meditations before the individual lectures suggested to me. And as I saw some of you avidly taking notes on my lectures, I hoped that it would be possible for me to ask you for them, so that I would be able to refresh my memory later. But this did not really work. For after comparing three or four examples of your efforts with each other, I observed that few of you had fully understood my arguments, and some, whose miserable condition and lack of judgment I greatly deplored, had attributed fictitious opinions to me and very often combined contradictory opinions in one sentence. I therefore pondered how I could remedy this defect in future and assist your understanding of the material.
§20. I had also noted already some time before that in the common division of divine laws into moral, ceremonial, and forensic, the term moral laws usually mixed divine natural law and divine positive universal law with each other, as if moral law and natural law were synonyms, and as if there were no other kind of divine positive law than the ceremonial and the forensic. Yet, in the absence of some universal law which is also positive, it would be necessary either pitifully to abandon the orthodox opinions on the turpitude of polygamy and the prohibition of incest, etc., in the face of their adversaries, or to abstain from a decision of these very grave and important controversies. And while Hugo Grotius explained this distinction within divine law clearly enough, he not only mixed several errors into his statement on universal positive law, but in some cases also confused this law with natural law. Among our people, however, as far as the gentlemen in theology are concerned, I have noticed no one who has properly set out this distinction between natural law and universal positive law, or who has explained universal positive law appropriately and said which principles were relevant here, even though I went through very many authors, especially modern ones, who published works on moral theology. As far as the jurists are concerned, there is a complete silence on
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this matter among them, with the exception of the most learned Kulpis in his Collegium Grotianum.20