Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius
translation was then checked against the contemporary German translation of 1709 (reprinted by Olms Verlag in 2003). The aim here has been to produce a usable and accessible text, not a full critical edition; the few significant discrepancies between the different editions used for translation have been pointed out in the footnotes. Complete reference information is given in the bibliography.
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I am especially grateful to Knud Haakonssen for inviting me to contribute this translation and edition to the Natural Law and Enlightenment Classics series. I should also like to thank Michael Lurie in Edinburgh for helping me to identify the sources of some Latin quotations. Finally, I should also like to record my gratitude to Diana Francoeur and her colleagues at Liberty Fund for their superb work in preparing the manuscript for publication.
Some final changes to the text were made during a period of research at the Institute for Advanced Study in Princeton in 2010–11. My membership at the Institute was funded by Rosanna and Charles Jaffin, Friends of the Institute for Advanced Study, and the Herodotus Fund. I am deeply grateful for their support. Any inaccuracies or other shortcomings that remain are my responsibility.
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INSTITUTES OF DIVINE JURISPRUDENCE
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Introductory Dissertation, Addressed to My Audience
§1. It is customary for the authors of books to preface the treatises they publish with a discourse in which they either recommend the work or discuss various other matters for the reader. I will not inquire here whether these discourses are useful or irrelevant, nor am I concerned with their title, whether they are more properly called a prooemium, a praefatio, or an antefatio, which is a term I have seen some people prefer. I believe that this should be left to the judgment of each individual and that the common proverb “everybody prefers his own way” is very appropriate here.
§2. I have various reasons for prefacing my Institutes with an introductory dissertation. First, I want you to have a clearer idea of my intention; second, I want to defend myself against the accusation of literary plagiarism and render the authors I have used in this work their proper due; third, to clarify certain opinions, which have been expressed a little obscurely and could expose me to slander, and to fortify them against objections; and finally, to say something about amendments to some passages.
§3. But I address you, my beloved audience, not only because I produced these Institutes of public law for your sake, and it is thus your immediate concern to know what is relevant to understanding them. It also seemed to some extent to be in my interest to justify my teaching and my studies to you, you whose fees and love by the grace of God sustain me, and who have encouraged me to be diligent and to contemplate true philosophy, since I had no opportunity to abuse public funds in order to
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be lazy or to profess a false wisdom, which rests on authority rather than reason.1
§4. So, I would have wasted my time and my efforts, if I had seized my quill to refute those who examine my writings insidiously and anxiously, not for the sake of learning, but with the intention of putting obstacles in the way of my honest endeavors, and of ensnaring my words. Yet I live under an obligation to those people who are free from passion when they read my Institutes or the present dissertation and believe that I, too, can put forward opinions which may not always and directly discover the truth, but which can nevertheless be of some use in inquiring about it and finding it, and who believe that one should not ask who says something, but what is said, and that often even the vegetable gardener makes appropriate comments.
§5. Thus, when I moved from school to university, I did not immediately enter one of the higher faculties, as our young people, unfortunately, often do. Instead, I first spent a number of years studying philosophy.2 There I had the opportunity to hear my blessed father3 lecturing on Grotius’s books On the Rights of War and Peace; and even though I did not understand very much at that time, nevertheless the dignity and elegance of the doctrine captivated me. Soon I was seriously devoting myself to understanding it better than others and of absorbing it into my very flesh and blood. I also remembered that my father had in his lectures often referred his audience to the theologians, who drew attention to Grotius’s errors in religion, and to the jurists. It was to the latter that Grotius’s work was mainly relevant. My father himself declared in his prolegomena that he had chosen this treatise to support the noblest part of jurisprudence.
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I therefore thought it necessary in my private studies to add two of Grotius’s commentators to my reading of him. One of them is a jurist, who is very learned in divine and human affairs and is the ornament of the University of Wittenberg, Caspar Ziegler;4 the other is a theologian in Tübingen, whose many publications have made him well known, Johann Adam Osiander.5 Of these two the first dispelled in short but succinct observations on Grotius the clouds of obscurity on many points. The other has repeated most of what Ziegler has said, even though he does not mention him, thereby helping me to memorize the arguments better. Apart from that, he warned me to beware of the heterodox opinions of Grotius, and at the same time introduced me to the moral philosophy of the Scholastics.
§6. Then appeared the books on the law of nature and nations by the illustrious and incomparable Samuel Pufendorf.6 I read these avidly, not only because his Elements7 had given me a certain foretaste, though I had only inspected them cursorily, but also because I was very taken by his clear and perspicuous style. I noticed there that most of the subjects which Grotius had neglected were explained very lucidly, and that he also clarified many of Grotius’s more obscure passages. And yet, I was not pleased with some of his opinions which contradicted the common belief in God’s eternal law, its conformity to divine sanctity, the existence of a standard of morality prior to the divine will, and similar matters. At that time I did not know how to separate theological questions from philosophical ones, and there was nobody who could teach me these things. I had also realized that in Osiander’s commentary on Grotius8 and especially in another
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book by that author titled Typum legis naturae9 these doctrines were defended strenuously. Thus I thought that he who even dared to doubt their truth was in danger of eternal damnation. Although it was not clear to me how Pufendorf’s objections could be met, and the replies of the learned, with whom I discussed this when there was an opportunity to do so, were entirely unsatisfactory, nevertheless the authority of so many venerable men prevailed. I therefore blamed the dullness of my own mind, rather than suspecting there to be anything wrong with the common doctrine.
§7. In the meantime my love of natural law had led me, with the consent of my father, to choose jurisprudence among the three higher faculties. My intention was to remedy the shortcomings of philosophy in that area [i.e., natural law]. For among other things, the commentary of the learned Boecler on Grotius10 showed that they who attempted to define and explain natural law without jurisprudence found it very difficult to do so only on the basis of the philosophy that is taught at the universities. Thus, I developed a basic understanding of it as well as I could and, since I had no guide who prescribed a method to me, I did the usual thing and listened now to one person, now to another, and thus acquired some understanding of it, which was, however, confused, fragmented, and incoherent, rather than true wisdom. Matters did not improve when I was sent by my family to Frankfurt an der Oder to complete my study of jurisprudence. This was not the fault of my teachers, who were excellent men and each of whom