Essays on Church, State, and Politics
Publication Year: 2012
The essays selected here for translation derive largely from Thomasius’s work on Staatskirchenrecht, or the political jurisprudence of church law. These works, originating as disputations, theses, and pamphlets, were direct interventions in the unresolved issue of the political role of religion in Brandenburg-Prussia, a state in which a Calvinist dynasty ruled over a largely Lutheran population and nobility as well as a significant Catholic minority. In mandating limited religious toleration within the German states, the provisions of the Peace of Westphalia (1648) also provided the rulers of Brandenburg-Prussia with a way of keeping the powerful Lutheran church in check by guaranteeing a degree of religious freedom to non-Lutherans and thereby detaching the state from the most powerful territorial church. Thomasius’s writings on church-state relations, many of them critical of the civil claims made by Lutheran theologians, are a direct response to this state of affairs. At the same time, owing to the depth of intellectual resources at his disposal, these works constitute a major contribution to the broader discussion of the relation between the religious and political spheres.
Christian Thomasius (1655–1728) was a German philosopher and legal theorist. He was a cofounder of the University of Halle, where he was also a professor.
Ian Hunter is Australian Professorial Fellow in the Centre for the History of European Discourses, University of Queensland.
Frank Grunert is a member of the Institute for Philosophy at the University of Giessen.
Thomas Ahnert is a Lecturer in History at the University of Edinburgh.
Knud Haakonssen is Professor of Intellectual History at the University of Sussex, England.
Published by: Liberty Fund
Title Page, Copyright
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The German jurist and philosopher Christian Thomasius (1655–1728) published two major treatises on natural law, the Institutes of Divine Jurisprudence in 1688 and the Foundations of the Law of Nature and Nations in 1705.1 Thomasius’s declared aim in both was to improve and develop...
Note on theText
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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...
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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,...
Introductory Dissertation, Addressed to My Audience
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§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...
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§5. The faculty which is acquired through natural powers is either intellectual, if it is based in the intellect and is acquired through acts of the intellect, that is, affi rmation and denial, or it is voluntary, if it is based in...
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§1. Divine jurisprudence is the prudence that is required for explaining the divine laws concerning the well-being of humans in this life and for applying them to the actions of humans....
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§1. Every variety of jurisprudence teaches the interpretation and application of laws. For these are the means of introducing general tranquillity. And if jurisprudence neglected to teach the means of implementing the laws and remained content with saying what they are, it would not deserve...
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§2. By the first principle of natural law we should not understand the first practical principle, or the first principle of jurisprudence or of jurisprudence in general, insofar as it is distinct from natural and revealed jurisprudence. For by this first principle we mean, or certainly should...
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§1. By a duty of man toward God we here do not mean some theoretical principle, but a practical one. And this principle does not regulate internal actions only, but mainly external ones. It is, however, not a first practical principle, but a specific one which can be demonstrated by way of a conclusion...
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§1. Like beasts, man has a physical body, which is usually described as a form of animal life; and both [i.e., humans and beasts] have a desire for self-preservation as a natural instinct that is distinct from reason....
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§5. It is said that the main difference between obligations imposed by a superior and those that take their origin from mutual agreement seems to be that the latter are no longer binding as soon as the other person deviates from the agreement, while the former continue to be binding even if...
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§1. In the first negative precept, “Avoid pride,” it is easy to recognize what pride is. For the meaning of our precept is that nobody who does not enjoy a special right should arrogate to himself more than others but should allow others to enjoy the same right as he does....
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§5. Third, it is taken as the denial of a right which is owed to me even without an agreement with the person who harmed me, no matter whether this denial was directed at goods which cannot normally be taken away by unjust force, such as my honor and reputation, or those that are susceptible...
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§1. The third particular precept derived from the condition of humanity and the law for the preservation of equality is the first among two affirmative precepts: “Promote the utility of another human being as much as you conveniently can.”...
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§2. The necessity of agreements among humans is clear from the fact that the duties of humanity and their fulfillment are not suitable for everything that humans can usefully expect of each other. This is partly because of the condition of him who should perform the useful action, partly...
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§1. We will now turn to hypothetical precepts, which have this name not only because they presuppose concomitant agreements and laws on keeping faith but mainly because it is easy to derive them from the general precept concerning the preservation of human equality and its four rivulets,...
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§1. If man had remained honest there would have been no need for an oath. For this has only been introduced as a crutch for corrupt nature, because in the present state of sin there is no other means by which to suppress fallacy or perfidy in a person who asserts or promises something, or...
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§3. As far as the two former concepts are concerned, authors on morality are usually concerned with justifying this capability to use created things on the basis of a divine grant and with defending the killing of beasts in particular against objections by others....
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§1. After dominions over things had been introduced, humans began to engage in commerce with each other. Commerce is nothing other than the mutual exchange of things (by which I also mean labor). For not every part of the earth produces everything, and therefore nobody has everything...
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§1. We could therefore finish the second book and move on immediately to the particular duties of man in different societies had we not remembered that the discussion of interpretation above was interrupted for certain reasons, and its last part was postponed until after the doctrine of...
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§4. Some of these, such as the society of nations, are called natural because man is placed in them by nature, even without his choice. Some, however, are called natural because nature leads man to them by a special instinct, which impels humans to choose to enter these societies voluntarily....
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§2. It is difficult to explain what everyone’s duty is in that regard, because the matter has been greatly complicated by the controversies of theologians, jurists, and philosophers, who have often argued with more acrimony and subtlety than perspicuity and clarity....
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§1. So far we have shown to what extent it is possible to teach the duties of marriage on the basis of natural reason alone. We must not be surprised, therefore, if we often see pagans being uncertain about how to derive their arguments, for which we as Christians can provide very clear reasons, and...
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§1. Following conjugal society it is worth examining the society that exists between parents and children, commonly called paternal society. The purpose of conjugal society, as we have said, is the procreation of children. Paternal society is the result....
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§2. Even in the postlapsarian state there was no need for such a society, as long as the community of goods existed and there were no distinct claims of ownership. For need is the ultimate origin of such a society. But when goods are common to all, there can be no owner who aims to acquire...
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§1. It would be easy to discuss the duties of those living in a commonwealth if there had not been such difficulties concerning the theory of such a civil society, without which these duties are discussed in vain. The reasons for these difficulties are the excessive adoration of the sayings of...
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§1. We now need to examine the parts of supreme power one by one and see what has to be observed in each particular case. There are not such great or difficult controversies here, and everything that comes under this heading has already been fully and clearly explained by others.113 Nothing...
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§2. I say “of several commonwealths,” for if two private persons come to an agreement for the sake of some benefit, that is an agreement or a contract, not a treaty. The same reason applies to an agreement between a prince and a private person, no matter whether of his own or another...
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§1. There remains the society of nations, in which as we have already said above no new purpose or new precepts are to be expected, only the application of the general precepts set out in the second book to two of the more important parts of the law of nations, those concerning legations...
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§1. Plato declared that there were three kinds of justice, the first concerning the gods, another concerning humans, the third concerning the deceased. For those who perform sacred duties according to the laws and take care of sacred matters are devout and pious. Those, however, who...
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§1. We said at the beginning that there are two parts of judicial jurisprudence, the interpretation of laws and their application. We have so far dealt with the skill of interpretation. It remains for us to say something about the skill of applying laws, but only very briefly....
Selections from Foundations of the Law of Nature and Nations
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§1. In the Institutes of Divine Jurisprudence I defended the foundations on which the famous Pufendorf had constructed the law of nature and nations. I am not ashamed of that, nor do I regret it. For just as Grotius revived and began to purge this extremely useful discipline, which had...
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§1. That complete entity which is called “the world” consists of things, some of which are visible, while others are invisible, such as air, light, ether, etc. Visible things are called bodies; invisible things we shall call powers, faculties, qualities, etc....
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§2. There are as many meanings of the term law as there are different rules of moral actions. Therefore, law in a broad sense signifies legal opinions (consilia), the commands of kings and lords (imperia), paternal admonitions (a mixture of imperium and consilium), and the conditions of agreements...
Page Count: 336
Publication Year: 2012
Edition: New Edition
Series Title: Natural Law Paper