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Christian Thomasius, Institutes of Divine Jurisprudence. With Selections from Foundations of the Law of Nature and Nations [2011]

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Christian Thomasius, Institutes of Divine Jurisprudence. With Selections from Foundations of the Law of Nature and Nations. Edited, Translated, and with an Introduction by Thomas Ahnert (Indianapolis: Liberty Fund, 2011). http://oll.libertyfund.org/titles/2725

About this Title:

First published in 1688, Thomasius’s Institutes attempted to draw a clear distinction between natural and revealed law and to emphasize that human reason was able to know the precepts of natural law without the aid of Scripture. His Foundations published in 1705 revised the theory he had put forward in the Institutes.

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Table of Contents:

Edition: current; Page: [i]
institutes of divine jurisprudence
Edition: current; Page: [ii]

natural law and enlightenment classics

Knud Haakonssen

General Editor

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lf1590_figure_001.jpg

Christian Thomasius

Edition: current; Page: [iv] Edition: current; Page: [v]
natural law and enlightenment classics
Institutes of Divine Jurisprudence
With Selections from Foundations of the Law of Nature and Nations
Christian Thomasius
Edited, Translated, and with an Introduction by Thomas Ahnert
liberty fund
Indianapolis
Edition: current; Page: [vi]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

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The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

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Frontispiece: Portrait of Christian Thomasius by Johann Christian

Heinrich Sporleder (1754), oil. Reproduced courtesy of Bildarchiv der

Zentralen Kustodie der Martin-Luther-Universität Halle-Wittenberg.

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Library of Congress Cataloging-in-Publication Data

Thomasius, Christian, 1655–1728:

[Institutiones jurisprudentiae divinae & Fundamenta juris naturae et gentium. English]

Institutes of divine jurisprudence with selections from foundations of the law of nature and nations/Christian Thomasius: edited, translated, and with an introduction by Thomas Ahnert.

p. cm.—(Natural law and enlightenment classics)

Includes bibliographical references and index.

isbn 978-0-86597-518-7 (hc: alk. paper) isbn 978-0-86597-519-4 (pbk.: alk. paper)

1. Law—Philosophy. 2. Natural law—Early works to 1800. 3. Religion and law. I. Ahnert, Thomas. II. Thomasius, Christian, 1655–1728. Fundamenta juris naturae et gentium. III. Title.

kz2344.a31567 2011

340′.112—dc22

2011013180

liberty fund, inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250-1684

Edition: current; Page: [vii]

CONTENTS

  • Introduction xi
  • Note on the Text xxv
  • Acknowledgments xxvii
  • institutes of divine jurisprudence
    • Introductory Dissertation, Addressed to My Audience 1
    • Book I
      • chapter i: On Jurisprudence in General 61
      • chapter ii: On Divine Jurisprudence 88
      • chapter iii: On the Interpretation of Divine Laws in General and on Practical Principles 114
      • chapter iv: On the Interpretation of Divine Laws in Particular, That Is, on the First Principles of Natural Law and Positive Universal Law 128
      • chapter v: On the Duties of Man Toward God 144
    • Book II
      • chapter i: On the Duty of Man Toward Himself 153
      • chapter ii: On the Duty of Man Toward Others, in Particular on Preserving Equality Among Humans 178 Edition: current; Page: [viii]
      • chapter iii: On Avoiding Pride 183
      • chapter iv: On Not Harming Others and on Compensating for Harm That Has Been Done 187
      • chapter v: On the Various Duties of Humanity 195
      • chapter vi: On the Duty of Persons Forming an Agreement 205
      • chapter vii: On the Duty of Man Concerning Speech 226
      • chapter viii: On the Duty of Those Taking an Oath 241
      • chapter ix: On the Duty Concerning Things and Their Ownership 259
      • chapter x: On the Duty Concerning the Prices of Things 299
      • chapter xi: On the Interpretation of Divine and Human Will Insofar as It Is Expressed in Words 311
    • Book III
      • chapter i: On the Duty of Man Toward Fellow Humans in General 354
      • chapter ii: On the Duty of Man with Regard to Conjugal Society 367
      • chapter iii: On the Positive Laws Concerning the Duties of Marriage 412
      • chapter iv: On the Duties of Parents and Children 461
      • chapter v: On the Duties of Lords and Servants 475
      • chapter vi: On the Duties of Those Living in a Commonwealth 480
      • chapter vii: On the Duties of Citizens in States Concerning Punishments 512 Edition: current; Page: [ix]
      • chapter viii: On the Duties of Confederates 539
      • chapter ix: On the Duties Toward Legates 544
      • chapter x: On the Duties Toward the Dead 560
      • chapter xi: On the Application of Divine Laws 566
  • Selections from Foundations of the Law of Nature and Nations
    • introductory chapter: The Reason for This Work 571
    • Book I
      • chapter i: On the Moral Nature of Man 581
      • chapter v: On the Law of Nature and Nations 607
  • Bibliography 623
  • Index 635
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INTRODUCTION

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 the natural law theories of Hugo Grotius and Samuel Pufendorf.2 Both works have much material in common, a lot of which is standard natural jurisprudential argument, yet Thomasius also used the Foundations to reformulate the central principles on which his natural jurisprudence was based. The passages from the Foundations in this volume have been chosen because they make clear the key changes in Thomasius’s natural law theory that had taken place since the publication of the Institutes seventeen years before.

Thomasius was widely regarded as an innovative, even heterodox, thinker during his lifetime, a reputation that he often promoted very vigorously. He boasted, for example, that his decision in the mid-1680s to lecture at the University of Leipzig in German rather than in the traditional Latin had caused great consternation among the conservative professoriate,3 and in subsequent years he often criticized “pedantry,” “dogmatism,” and “scholasticism” in university teaching. Thomasius continued to be regarded as an intellectual innovator after his death. In the mid-eighteenth century the historian of philosophy Johann Jacob Brucker Edition: current; Page: [xii] praised him as one in a long line of “eclectic” thinkers, who formed their ideas independently and refused to follow blindly the authority of others.4 Toward the end of the eighteenth century the author Friedrich Gedicke in Berlin presented Thomasius as one of the initiators of the Enlightenment in Germany, describing him as the person “to whom we owe a large part of our intellectual and material happiness.”5 In recent years several studies have reaffirmed his status as a key figure in the intellectual history of the early Enlightenment.6

Life of Thomasius

Christian Thomasius7 was born in Leipzig in 1655, the son of Jacob Thomasius, a respected professor at the university, who taught the young Gottfried Wilhelm Leibniz in the early 1660s. Christian Thomasius entered the University of Leipzig in 1669. In 1672, the year in which Samuel Pufendorf’s On the Law of Nature and Nations was first published, he graduated with a master’s degree from Leipzig, moving to the University Edition: current; Page: [xiii] of Frankfurt on the Oder in 1675, where he received a doctorate in law, before returning to Leipzig in 1679. After an unsuccessful attempt at a legal career, Thomasius began to lecture on natural jurisprudence to students at the University of Leipzig. Within a few years, he was involved in a number of controversies with the university, its theological faculty in particular. His disputation On the Crime of Bigamy (De crimine bigamiae) in 1685 appears to have led to disagreements with Valentin Alberti, a professor of theology and an opponent of Samuel Pufendorf. Thomasius, in his Institutes of Divine Jurisprudence of 1688, was also highly critical of Alberti’s natural law theory8 and defended the main principles of Pufendorf’s system. In 1688 Thomasius began publishing a monthly journal, the Monatsgespraeche (Monthly Conversations), in which he often commented satirically on members of the university. In addition, he plunged into a dispute with the court preacher in Copenhagen, Hector Gottfried Masius, which led to a complaint by the Danish king to Thomasius’s prince, the Elector of Saxony.9 At the same time, Thomasius was associating himself with a quasi-Puritan reform movement within the Lutheran church in Leipzig, the so-called Pietists, who were opposed by the theological faculty at the university. While some clergymen and professors appear to have been sympathetic to the Pietists’ general aims, their concern seems to have been that some of the leading Pietists were not qualified theologians and therefore likely to mislead their followers on matters that were essential to salvation.10 Eventually, pressure from the Lutheran church in Saxony and the Elector forced most of the prominent Pietists to leave the country. Several moved to the lands of the Calvinist Elector of Brandenburg, who Edition: current; Page: [xiv] welcomed them, in part because he believed that they would be useful allies against his territory’s Lutheran church, with which his relationship was strained.11 In 1690 Thomasius also left Saxony, having been forbidden to teach, publish, and conduct academic disputations, and moved across the border into the territories of the Elector of Brandenburg. There Thomasius first taught at an academy for noblemen in Halle. Very soon, however, he joined others in urging the foundation of a full university in Halle.12 Their efforts were successful, and in 1694 the new University of Halle was opened, which soon became one of the leading academic institutions in the early German Enlightenment. Thomasius was appointed a professor in Halle and remained there until his death in 1728.

Institutes of Divine Jurisprudence (1688)

Thomasius first published the Institutes in Leipzig in 1688 as a textbook to accompany his lecture course on natural law. At that time he did not hold a university post but taught students in private seminars, so-called collegia. The Institutes was intended as a vindication of the main principles of Pufendorf’s natural jurisprudence against critics such as Valentin Alberti. Yet Thomasius’s work was more than a repetition of Pufendorf’s ideas. In Pufendorf’s theory, for example, the notion of human weakness (imbecillitas) had played a central role, which it did not have in Thomasius’s Institutes. Pufendorf argued that, unlike other animals, single humans in a state of nature were weak. They lacked teeth, claws, fur, speed, and the other natural attributes that allowed wild beasts to survive without assistance from others. This imbecillitas, according to Pufendorf, drove humans to form societies. It also made it clear that God must have wanted them to Edition: current; Page: [xv] do so, because he would not have created humankind only for it to perish immediately.13 The argument from imbecillitas, however, was susceptible to accusations of “Hobbesianism,” because it seemed to turn individual necessity into the foundation of natural law.14 It is perhaps for this reason that Thomasius did not emphasize the argument from imbecillitas in his natural law theory but replaced it with another that relied on less selfish grounds to account for the origins of society. Humans, Thomasius wrote, had been created capable of reasoning. That was a fact of which each individual was aware. Reasoning, however, was impossible without words, and words were terms imposed on the world by mutual agreement among several humans. The use of words and language, therefore, depended on the existence of human society and relationships, and the rational nature of humans was thus evidence that God had intended them to live in societies together.15

In most other respects Thomasius’s argument was similar to Pufendorf’s. The laws of nature were divine commands that could be known from the observation of human nature and reflection on it. They were grounded in the divine will, just as laws in general were based on the will of a superior, that is, someone who had the right to impose an obligation on others. Without these commands, physical nature had no intrinsic moral value, either good or bad. All moral values were impositions on a morally indifferent, physical nature by a superior. Moral and physical qualities, therefore, were strictly distinct from each other.16 Thomasius also argued, like Pufendorf, that the human will was free in the sense of being “indifferent”; that is, it was able to choose freely between any of the Edition: current; Page: [xvi] various courses of action that presented themselves to it at a particular time. If that were not the case, the will could not be held morally responsible for its decisions. This freedom of the will was a key difference between humans and beasts. It meant that the former were moral agents, while the latter were not, though Thomasius also believed that following the fall from grace the human will was not always able to exercise its freedom unimpeded. Ever since original sin, the human passions interfered with the operations of the will and distorted its choices. But this interference was never so strong that humans ceased to be responsible for their actions.17

God’s commands in natural law were not arbitrary, but his reasons were not fully evident to humans. It was only clear that, having created human nature as it was, God must have wanted humans to act according to the principles of natural law, as they were known from the empirical observation of humankind. Thomasius placed great emphasis on the inscrutability of God’s mind to human understanding. This was one important respect in which he distinguished his natural law theory from that of opponents such as Valentin Alberti. Alberti believed that the content of natural law was not the product of divine commands but founded on eternal truths in the mind of God.18 The moral principles of natural law were not identical to these truths, but they were derived directly from them and, therefore, were just. They were not known to humans on the basis of empirical observation and reflection but were innate and part of the so-called imago divina, the divine image that God had implanted in humans when he created the world.19 Yet Alberti also said that these moral principles had been present in their full strength and clarity only in the state of innocence, before original sin. Following the fall from grace, they were blurred and obscured, and humans depended on divine revelation to supplement their imperfect knowledge and understanding of them. In particular, it was the Decalogue, given by God to the Israelites after their exodus from Egypt, that summarized the central precepts of natural law.20

The first of Thomasius’s main objections was that Alberti’s theory of Edition: current; Page: [xvii] the imago divina and the derivation of natural law from eternal truths implied a continuity, which did not exist, between human understanding and the mind of God. The two differed in kind, not just in degree, and the distance between them was insuperable.21 Humans should therefore not dare to speculate about the ideas in God’s mind. The grounds for God’s decisions are inscrutable, and humans must not assume that their moral reasoning and that of God’s are comparable and based on similar principles. The precepts of natural law were binding because they were known to be the commands of God, who was the rightful superior of humankind, not because they conformed to particular eternal truths. Thomasius also argued that Alberti’s theory of eternal rational truths appeared to subordinate God’s will to an external standard of morality: it implied that there were rules independent of and superior to God, which God had to adhere to, thus restricting his freedom and power.22 Alberti replied that this standard according to which God acted was part of his own intellect, and thus it constituted no external restriction on him. To say that God acted according to principles that were part of himself, and not arbitrarily, did not imply that his freedom or his power was limited.23

Thomasius’s natural jurisprudence in the Institutes was thus largely, if not completely, Pufendorfian. Yet natural law formed only one-half of the “divine jurisprudence” referred to in the full title of his work. The other half was divine positive law, and one of Thomasius’s main concerns in the Institutes was to clarify the relationship between natural and positive divine law. As we have seen, Valentin Alberti argued that the main example of divine positive law, the Decalogue, was a republication of the laws of nature, which had been erased or at least obscured by the effects of original sin. Thomasius’s view in the Institutes was that divine positive law was not needed to reconstruct and understand the main principles of natural Edition: current; Page: [xviii] law. It was, however, important for other reasons, in particular because it provided guidance on certain temporal matters on which natural law was silent.

The most significant temporal matter, judging by the space devoted to it in the Institutes, was marriage.24 Thomasius had examined the relevance of natural law for marriage in his disputation De crimine bigamiae of 1685, where he had concluded that the prohibition of bigamy had to be based on divine positive law because natural law did not offer any clear arguments against it.25 In the Institutes Thomasius discussed at length the laws banning the different forms of polygamy and limiting marriages between relatives. Thomasius’s conclusion there, too, is that these restrictions rest on divine positive law, not natural law, which is insufficient to explain them.26 To the extent that divine positive laws are directed toward the affairs of temporal society, they stand in no need of interpretation by theologians. Jurists are capable of understanding and applying them, like the precepts of natural law or human positive law, and in so doing do not need to seek the advice of theologians.27 This right of jurists to interpret Scripture on matters relevant to temporal law was part of Thomasius’s argument against clerical authority more generally, which he continued and expanded in the following years, especially after he moved to the territories of the Elector of Brandenburg and began to teach at the University of Halle.28 Here Thomasius also began to rethink his natural jurisprudence, a process that led to his second main work on natural law, the Foundations of the Law of Nature and Nations, published in 1705.

Foundations of the Law of Nature and Nations (1705)

An important change in Thomasius’s natural jurisprudence concerned the relationship between moral and physical qualities. In the Institutes he Edition: current; Page: [xix] had argued that these two types of qualities were distinct and separate: whether a particular action or condition was deemed morally good or evil depended on the moral value imposed on it by a superior, not on its physical attributes. In the three books of the Foundations Thomasius changed his mind and argued that moral value was not something that was attached by an act of will to a morally indifferent nature. Instead, moral qualities were a species of natural qualities, and moral philosophy itself formed part of natural philosophy, or “physics.”29 In particular, actions were morally good or bad, depending on their natural effects. Moral actions tended naturally to further the well-being and happiness of the agent and others, while immoral actions caused infelicity and ill health. This was so because God had created nature in such a way that its ordinary course reinforced moral conduct.30

These natural advantages and disadvantages in temporal life could be considered a form of divine rewards and punishments, though Thomasius said that they were not comparable to the sanctions threatened by a human legislator.31 In particular, they were not sufficiently obvious to deter humans from breaking the law of nature, because “every [human] punishment must be inflicted visibly, but the evils which God has ordained for the transgressors of natural law come secretly, in such a way, that the connection of the evil with the sin is not evident, even if the evil itself is evident.”32 The natural consequences of moral and immoral actions were thus more similar to advice than to coercion.33 God had no reason to compel humans to act morally by threatening them with punishments, because he derived no advantage from their obedience. Also, if the disadvantages of immorality were so clear and powerful that they deterred everyone from violating natural law, there would be no merit in being virtuous. A human legislator, on the other hand, had a clear interest in forcing his subjects Edition: current; Page: [xx] to be obedient, regardless of whether they did so only out of fear. Related to this new idea of punishments was another change in the Foundations, Thomasius’s rejection of the notion of a divine positive law: because God was not comparable to a human legislator, who enforced his laws with punishments, the concept of a divine positive law, which was analogous to human positive law, made little sense. Divine positive law, according to Thomasius, had been the invention of self-interested clergymen, who had tried to use their authority in questions of scriptural interpretation to exercise influence on temporal matters, such as legal cases concerning marriage.34

Thomasius also completely changed his notion of the freedom of the human will and its relationship to the human intellect. His previous idea of an “indifferent” will, he now argued, was wrong, for if the will was equally indifferent to all available courses of action, it was impossible to explain why it chose one rather than the other.35 The 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 Edition: current; Page: [xxi] 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 Edition: current; Page: [xxii] 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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NOTE ON THE TEXT

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 into the footnotes. The 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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ACKNOWLEDGMENTS

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 Edition: current; Page: [2] 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. Edition: current; Page: [3] 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 Edition: current; Page: [4] 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 was highly deserving of praise. It was rather the widespread method of learning, according to which young students were usually taught by several doctors, who often disagreed among each other and drew on diverse principles. This was hardly suitable for producing anything solid. Also, as tends to happen, friends and conversations with fellow students wasted many hours which could have been spent on studies and attending lectures.

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§8. I rapidly became aware of this, however, and, putting that common proverb “we learn by teaching” into practice, I tried to fill the gaps and connect my different studies, which had often been interrupted. Thus, once I had graciously been granted a license to teach by the university authorities, I lectured a little on the Institutes of Justinian11 to some of my fellow students. To others I explained the questions of Jan Klenck on the books of Grotius12 in order to make an attempt at understanding this most noble discipline, to see what I could manage and what progress I would make by reading Grotius and Pufendorf.

§9. Until then I had been an assiduous defender of the doctrines of the Moralists,13 and though in all other respects I liked Pufendorf very much, I set aside those aspects that were considered heterodox. In this opinion I was strongly confirmed by the “index of novelties,” a highly dangerous document, especially as it was received with applause by numerous people.14 There were further writings like this, which attacked Pufendorf as a common enemy. I was extremely pleased about their appearance, because I hoped that I would be able to learn from them how to reply to Pufendorf’s arguments. I noticed many arguments which begged the principle or were circular, yet I selected some with which I believed I would be able to strike or avert the blows for the sake of the common cause. I profusely thanked those authors, who were inspired by the love of orthodox truth to take up arms; and at the same time the multitude of syllogisms, which were often prolix and difficult to understand, excited my admiration. I believed that if Pufendorf were confronted with these arguments he would succumb to their enormous weight, and would not even dare to open his mouth to contradict such great men.

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§10. I was, however, mistaken, for soon afterward the apologia of Pufendorf became available to us.15 When I read this I sensed that my weapons were inadequate to ward off his blow. At about that time I was beginning to dispel some of the clouds which had until then shrouded my understanding. For I had previously imagined that everything defended by the common opinion of the theologians was a proper part of theology, and that a good man should beware of listening to any heretic or innovator, two terms which were considered synonymous at the time. Yet, more careful meditation on the difference between theology and philosophy and a more diligent examination of the writings of authors on politics and public law had taught me that many views were upheld by the unanimous opinion of theologians and were generally held to be theological matters, although they did not belong to theology but to moral philosophy or jurisprudence. This was so because philosophers were content with their Aristotelian catalogue of eleven virtues and jurists with their glossators and so gave the theologians, first the papal theologians and then ours, the opportunity to seize the noblest part of wisdom, which was neglected and without a guide. This scrutiny had also taught me that the power to declare someone a heretic did not pertain to private persons, even though they might enjoy a lot of authority, but to the prince. And finally, it had taught me that the accusation of heresy did not necessarily imply the crime of heresy, and that this and the term heretic were very widely abused. I saw, however, that Pufendorf had demonstrated precisely these opinions to his adversaries and that their hopes of victory had rested to no very little degree on their erroneous principles.

§11. Thus I began to doubt the moral doctrines of the Scholastics. For I had never been disposed to adhere to preconceived opinions so rigidly that I could not be torn away from them when the truth became evident. I saw more than once my father setting a laudable example by abandoning his earlier opinions, if the following day showed him something else to be Edition: current; Page: [7] closer to the truth. But what had held me up in my pursuit of the truth had been above all the education in sectarian philosophy and the vain and unjust fear of suffering from a bad reputation if I diverged from the common opinion. When I noticed, therefore, that my judgment had gradually matured, and I reminded myself that I was a rational being like other humans, I became aware at the same time that I was sinning against the benignity of the Creator if I allowed myself to be led wherever it pleased others, like cattle wearing a muzzle. Therefore I closed the eyes of the mind, so that the brightness of human authority would not blind them, and cast aside all consideration of who or how great a person had written what I was reading. I examined only the arguments on either side and considered what this person asserted, that person criticized, another proved, and yet another replied. But above all I firmly impressed on myself the state of the controversy and noted how tenacious one person was, how another twisted and turned like an eel in order to elude his adversary and confuse him, until I concluded that I had to unlearn a lot and sensed that I had known nothing and that my knowledge was nothing but a confused chaos and a heap of many things, which were mixed with each other without any order.

§12. But when I had thought about this carefully and managed to reduce the chaos to some order, I unintentionally became a deserter, in the sense of someone who having fled from a tyrant invading the liberty of a commonwealth takes up arms in defence of liberty against this tyrant. For clear reasons had triumphed over the otiose subtleties of scholastic moral philosophy. I was also ashamed of any longer taking the side of those who had been full of boasts as long as there was no enemy and had been the first or among the first to sound the signal for battle, but, when their veterans had at their encouragement attacked the enemy and perished miserably, and they themselves had been honestly summoned to battle and had been challenged several times, hid behind their walls and thus indicated either their fearfulness or the injustice of their cause. Finally I was horrified, because I saw that egregious injustices were committed under the pretence of Christian benediction by some whose duty it was to guide the flock of Christians. They interfered in battle, without being called to it or being equipped with appropriate arms, and, like blindfolded Edition: current; Page: [8] gladiators, cut down anything which they encountered. I also noticed that they could not bear it if the smallest word of theirs had been ignored, as if a minister of the word enjoyed a privilege of inflicting injury and as if their holy office gave them immunity against enemies and allowed them [the ministers] to betray their office and provoke these enemies without a reason. Then I remembered a story which I had read, I know not where, of a beggar who had visited a bishop and had first asked for substantial alms; when these were denied he asked for a smaller amount, and when he failed to obtain these he asked for a very small amount. When all his requests had been in vain, he asked for a benediction. The bishop gave him that. The beggar, however, returned it to the bishop, saying that his benediction was not worth a penny, since he could not obtain a penny from the bishop before, in spite of his persistent requests.

§13. From this time on, after shaking off the yoke of sectarian philosophy, I took great care to preserve the liberty I had once acquired. Thus, even though I did not consider it unbecoming to struggle for truth under an illustrious leader, even in the last ranks, I always acknowledged him as a leader, not as a ruler, although a good leader differs little from a ruler, insofar as he diverges from the truth only very rarely and then only unintentionally. Although I thought at first that once I had reduced the doctrine to some system I would be able to keep it forever, I sensed that like any other person who reduces a confused heap of things to a particular order, I too had to correct the order several times and improve it. For I continually detected new errors to be corrected, which are just an indication of human weakness.

§14. In the meantime I perceived the rich fruits of cultivating such a noble doctrine. I ceased teaching it for a while, as soon as I sensed that the ideas I had previously believed rather than understood did not cohere with each other. Yet, when I returned home and there, having shaken off the original torpor, simultaneously devoted my efforts to civil jurisprudence, I noticed while I was teaching that with the help of natural jurisprudence I was able to explain the Pandects quite adequately. This was so although I had never previously studied them in their entirety. And, apart from other matters, Edition: current; Page: [9] 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 Edition: current; Page: [10] 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 Edition: current; Page: [11] 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 Edition: current; Page: [12] 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 Edition: current; Page: [13] this matter among them, with the exception of the most learned Kulpis in his Collegium Grotianum.20 There he examines the question of polygamy and promises to show in a separate treatise that there is such a universal positive law [against polygamy]. I eagerly awaited this treatise, since I hoped for many erudite insights from this famous man on the basis of my reading of his precise Collegium Grotianum, insights which could have illuminated me or helped me a lot in my meditations on this divine positive law. This most noble man, however, delayed fulfilling his promise, no doubt because of the pressure of other urgent business, and so I thought that I would not be committing a sin if I dared to drag this universal positive law, if not from darkness, at least from twilight, even though I am neither a theologian nor a jurist; I am, however, wholly devoted to divine laws and jurisprudence. I do this in the hope that, even if I do not present everything completely accurately, other equitable people will draw on my attempts and use them to examine more accurately this difficult subject, which is worthy of both theologians and jurists in equal measure.

§21. Hence, as some of you asked me last year to repeat the course on natural law, and to communicate to them in writing in individual points what I had previously taught to others orally about the confirmation of Pufendorf’s hypotheses, and about my observations on the little book by Pufendorf On the Duty of Man and Citizen, I then took the opportunity and began to work on the present Institutes of Divine Jurisprudence. My aim was twofold: first, after presenting the general principles of jurisprudence, to explain the controversies over Pufendorf’s hypotheses, according to the method which I thought most suitable for you, and to defend these hypotheses as if they were my own, and to show clearly in chapters on the single natural law the connection of the conclusions with the hypotheses and first practical principles, according to Pufendorf’s opinion and rarely according to my own, and so to give you some introduction to reading the well-developed and learned work by this illustrious man Of the Law of Edition: current; Page: [14] Nature and Nations and profiting from it, so that his adversaries and their writings can no longer cause you difficulties. Second, the aim is to show more distinctly the differences between universal positive law and natural law, and to illustrate the precepts of the former, insofar as their interpretation pertains to jurisprudence, concerning the doctrine on marriage and the chapter on punishments.

§22. Above all, it seemed necessary to me to reason consistently and to quote no authors, especially no modern authors, in the text, not even the great Pufendorf himself. For I knew well how preconceived opinions have the habit of becoming an obstacle in the acquisition of truth, and among these opinions none does more harm than the prejudice in favor of established authority. I therefore thought that it would be very useful for you if I abolished this prejudice to make sure that you did not ignore the arguments of Pufendorf’s adversaries just because Pufendorf’s authority had already inclined you toward his opinion; alternatively, if these [arguments of the adversaries] should prove attractive, you might block the well-argued responses and reasons based on human nature. Moreover, I wanted to stimulate your industry and persuade you to read Pufendorf’s work carefully, in the belief that if I did not quote passages, you yourself would read it with all the more care and would compare it with my Institutes. And since I often had to depart from the common opinion of great men, or from the opinion of a particular man of great authority, and it was yet my intention to inquire into unadorned truth, without regard to persons, and to struggle with opinions, not people, I did not want to detract from the reverence owed to the people with whom I disagree by referring to them.

§23. As far as other methods of teaching are concerned, I know that much is said in schools concerning the synthetic and the analytic methods, but these debates are otiose rather than useful. I believe there is only one good method, that is, to progress from the easier to the more difficult, from the known to the unknown, and that everything else depends on each individual’s judgment. It is correct to say that method must be a matter of individual judgment. And since all our erudition consists of the science Edition: current; Page: [15] of demonstrating true propositions and showing the connection between them and since the truth of propositions presupposes knowledge of the terms, it seems impossible to deny that the most natural method is the so-called mathematical one, which progresses from definitions to axioms and develops observations from them. Pufendorf arranged his Elementa according to that method. But each proposition has only two terms, and it would therefore be tedious if the definitions of all terms are listed in a continuous series, and it seems that the connection between the different propositions could not be shown very clearly if many axioms were presented successively. I believed, therefore, that I would best be able to avoid these two disadvantages if I mixed definitions and axioms and prefaced the individual propositions with definitions of the subject and the predicate, or added these definitions immediately after the proposition, and if I clearly linked the axioms themselves by starting from some first principle and deriving everything else from that by way of conclusions.

§24. I have divided these Institutes into three books. In the first of them I have presented a definition of divine jurisprudence and the doctrine of the first practical principle, as well as the first principle of natural law and universal divine positive law. To that I have added a proof that the duty of man toward God is not part of divine jurisprudence. In the second book I list the precepts of natural law that concern humans living in any kind of society. In the third, however, I list those precepts of natural law which direct the duties of man with respect to particular societies, that is, conjugal, paternal, domestic, civil, those based on treaties, and the society of nations. The beginnings of the chapters will show their connection with each other, and in the second and third books I mostly followed the order adopted by Pufendorf in his book On the Duty of Man and Citizen. I say mostly, for a look at these will easily show what I have changed here and there.

§25. Since I had Pufendorf’s work and the other writings published in his defense in mind throughout the Institutes, you will not be surprised at finding that often entire points have been borrowed from him and have not been changed by a single word. For my project, which I have explained Edition: current; Page: [16] to you, required me to do so. But there are in these Institutes some arguments of my own, which I continually mixed with the ideas of others. Thus, inevitably the incomparable man himself was linked to me without his intending to be. I do not know whether he will accept this with equanimity. He may rather desire his possessions to be clearly separated from mine. Yet he will not need to do so, since I am prepared, without the intervention of a judge, to divide my Institutes so that I leave to him only what is well said, even if it is mine, because his writings and hypotheses led me to investigate them. Those arguments, however, that are found to be incoherent and improper I shall take upon myself.

§26. Yet I will happily admit that I have sometimes borrowed the ideas of other learned men to whom must be rendered what is due to them, and I must indicate to you those authors whom you should add to the reading of my Institutes. For book 2, chapters 6, 7, and 8, I carefully examined Uffelmann’s Treatise on the Obligation of Man, which is the result of an oration that was held not many years ago in the Academia Julia;21 from this I transferred to chapter 6, On the Duty of Persons Forming an Agreement,” §64, some arguments criticizing Pufendorf’s opinion on the lack of obligation in an agreement with highwaymen. In the following passages, however, I have showed how easy it is to defend Pufendorf’s opinion. But in chapter 7, “On the Duty of Man Concerning Speech,” and similarly in chapter 8, “On the Duty of Those Taking an Oath,” I have adopted many arguments from the said book by Uffelmann, though I reserved the freedom of presenting them differently and disagreeing with them. In the final chapter of the same book, “On the Interpretation of Divine and Human Will,” I also found most helpful the very accurate discussion of the interpretation of obscure law which was publicly presented under the most learned Rebhahn as praeses at the Academy in Strasbourg in 1671.22 In book 3, in the second chapter on the duties in marriage, an Edition: current; Page: [17] occasion for more profound meditation was often provided by the studies of Lambert Velthuysen on natural modesty and human dignity and on the principles of justice and propriety. These treatises are to be found in his works, published in 1680 in Rotterdam.23 These are to be compared especially with my comments in the said chapter 2, §153 following. The third chapter of book 3 was based on my recollection of the famous controversies which were conducted in the writings of various people concerning divine law on conjugal duties, that is, on polygamy, the works of Sincerus Warenberg, Theophilus Alethaeus, Athanasius Vincentius, and Daphnaeus Arcuarius, who wrote in favor of polygamy; for writings against polygamy, see Musaeus, Christian Vigilis, Sluter, Feltmann, Brunsmann, Diecmann, etc.24 For the various legal opinions concerning the marriage of eunuchs, see the collection published by Hieronymus Delphinus two Edition: current; Page: [18] years ago;25 on divorces, see Selden The Jewish Wife, book 3, chapter 18 and the following chapters,26 and Strauchius in the fragment on the Institutes of Public Law, title 35;27 on incest with the sister of the deceased wife, see the work by Havemann, Tabor, Strauchius, Buchholz, and the editor of the Acta Oettingensia; there are also works by Samuel Bohlius and his adversaries on the incest of stepchildren, etc.28 My blessed father’s disputation on paternal power needs to be read together with the fourth chapter of the third book §§14ff., because there I intended to defend the opinion of my father that paternal society cannot be derived from consent. Chapters 9 and 10, on the duties toward legates and toward the dead, should be compared with Grotius, book 2, chapters 18 and 19, and his commentators, and with my father’s disputation on the inviolability of legates.29

§27. I believed at first that my good intentions, which I have just explained to you, would be treated fairly by all those who love studies and good scholarship and seek the truth. Yet I realized that I lived in a century in which there were not a few to be found who considered it their duty to obstruct free philosophical argument, to build walls and throw up barriers, to enclose it within limits which no human prudence could tear down, because they sensed quite rightly that this liberty of philosophical Edition: current; Page: [19] argument severely damaged the authority of the sectarian philosophers. For at one time the lecterns of the philosophers were protected by the authority of Aristotle or of some similar member of the original wise men, such as Albert, Thomas, Scotus, etc.,30 against those who philosophized freely. Now, however, the fortress of Aristotelianism has been taken, and so it seems there is a need for new trickery to defend the royal doctrines of the old masters. And since they do not have any real arguments with which to strengthen their fortress, they believe that their cause is advanced best if they persuade the people under the pretext of religion that, whatever they do, they act with God’s guidance and they struggle in defense of piety, and if they accuse their adversaries of being atheists, heretics, impious people, and careless innovators. Apparently they forget what the Apology for the Augsburg Confession, article 4, page 286, says about hypocrites, namely that they are guilty of impiety and of vices of all kinds far more than those they slander as impious.31

§28. I was not surprised, therefore, when I heard at the time of the publication of my first book of these Institutes that various criticisms of it were disseminated in public. And, as you know, the common claim was that I had based it on principles, which led you to atheism, heterodoxy, and I know not what impiety, and which all smacked of some new-fangled philosophy which threatened the commonwealth. This calumny was so widespread that discussion of it was even common among women visiting those who were in childbed. But I derided this open slander with high-minded contempt, and although one of you then told me that there were a few who were planning to lay a trap for me in this affair, I was nevertheless calm in the midst of all the uproar and lived secure in my conscience concerning both my conduct and my opinion, since I knew well that I lived under the rule of a just prince who was able and willing to protect the innocent. I was not even curious to find out the author of this horrid calumny, just as I am not keen to know this now, but rather wish Edition: current; Page: [20] sincerely that everything may turn out well for him, whoever it might be; for not only does Christianity order me to do so, but the zeal for sound philosophy to some degree tells me to, as do the examples of others who philosophize with moderation and without aggressiveness. Among these I mention above all René Descartes, whom the author of the first objections against his Meditations calls a hugely ingenious and very modest man.32 And indeed whenever I read the books by Gisbert Voetius, otherwise a man of great erudition, which he wrote against Descartes, and again compare the letter written in reply by Descartes to Voetius, I always have the impression (I am speaking of the style, not the subject matter) of two very dissimilar men, one of them a theologian, who is, however, not impartial and speaks badly of others, the other a politic person, but one who is extremely peaceful and accepts most criticisms generously.33

§29. Usually it is Zoilus and Momus34 who come under attack in prefaces, even where there is no Momus. I too had an excellent opportunity to spit bile at the Zoiluses, if I had not always believed that such invectives were a sign of an unsound, or at least of an undisciplined, mind. Moreover, these calumnies directed against me soon vanished; lies cannot persist for long. They are like snowballs which can grow to an enormous size when they are formed by humans, but which are rapidly reduced to nothing once they are exposed to the rays of the sun. Finally there seemed to be no need for invective, since my Institutes are sold publicly and themselves refute this calumny. I submit these Institutes to the scrutiny of all the learned, Edition: current; Page: [21] but only those who are truly such, for I scorn the censure of the others, who have no learning or know nothing beyond school and the seven liberal arts, even though they are filled to the brim and swollen up with their faith in a false philosophy.

§30. Yet I believe it to be in your interest, my listeners, that you who are, so to speak, caught between both sides know what responses I would want to be given in these controversies, whenever these matters happen to come up in familiar conversation, as they do. However, I wish you could avoid these occasions as much as is possible and not provide an opportunity for these kinds of quarrels, since nothing is more pedantic and nothing renders humans less suitable for civil life than being a disputatious animal in daily conversation and being unable to tolerate dissenters; just as he on the other hand suffers from the same vice of pedantry who stands at the lectern set up for the sake of public disputation and will not tolerate objections which are put forward according to the rules of the art, but to which he cannot reply, and yet is too embarrassed to admit an error. But as it is not always in our power to avoid quarrels completely, even among those we are familiar with, or to avoid hearing the thoughtless comments of one or the other person, your basic interest and the need to prevent you from being confused about the ideas you received from me demand that I say a little more about this matter.

§31. Thus, as far as the vice of atheism is concerned, I only ask my adversaries to look at the arguments I list in the first book, chapter 3, §§85ff., where I show that atheism is directly contrary to the principles I demonstrated. Concerning heresy, however, I should be much obliged to that person who will show me a thesis in these Institutes which is contrary to Holy Scripture and the articles of faith we profess. Moreover I appeal to you, who have heard me expound jurisprudence and philosophy on a daily basis, whether I have ever professed any opinion which contradicted the sacred mysteries of our faith and whether I did not rather devote all my efforts to preserve the strict limits which separate sacrosanct theology and human wisdom from each other and to show to you from the history of philosophy in all ages what great unrest the mixture of philosophy with Edition: current; Page: [22] theology has caused within the church. But why do we need long discussions? Do you believe that the venerable theologians of our university, or any others who are entrusted with the inspection of doctrines, be they private or public, will allow that heterodox doctrine to be spread and to corrupt your minds? Far from it. Yet I do not deny, and have demonstrated to you several times, that there are many questions and assertions which theologians commonly use, but which, if you examine them carefully, are properly speaking not theological, but philosophical or juristic. The fact that these matters are generally regarded as part of theology is mainly due to scholastic theology, which has done enormous damage by mixing philosophy with theology contrary to the admonition of Paul, and has created a confused and disorderly mass, in one word, a kind of amorphous chaos. But it is also the fault of philosophers and jurists who neglected letters35 before the Reformation and so gave the papal theologians the chance to seize what was left derelict. That is what happened to natural jurisprudence, as I say in the Institutes themselves, since the law of nature and nations and theology are entirely different. This I prove in book 1, chapter 1, §§163ff., and chapter 2, §§137ff. The news from the capital of Spain has recently brought us an excellent illustration of my opinion: “One suspects that the Dutch extraordinary envoy will receive satisfaction against the Inquisition for the insolent acts committed in his house in the case of Mr. Chares. These acts were condemned without exception by all high-ranking ministers, especially as Mr. De Lyra himself said that the inquisitors were people who understood theology, but not the law of nations, and thus did not know what was due to a public minister.”36 Nor do I conceal my belief that the power to declare a heretic does not pertain to either private persons or the clergy, but is a regalian right and pertains to the prince’s right in sacred affairs, even though this regalian right must be exercised according to the standard of the divine word. I see that this is how it has been observed in the primitive church and in the first ecumenical councils, and the genuine principles of political science teach me the same. I believe also that it belongs to the duty of a good citizen in the Holy Edition: current; Page: [23] Roman Empire, not to speak disparagingly either in public or in private about the religions that are tolerated in the Empire, because this is what the peace treaty of Westphalia teaches me. I believe furthermore that the rules on the duties of the good citizen also apply to the clergy and that this doctrine does not contradict the word of God. I believe that the prince makes proper use of his right if he coerces those with just punishments who are refractory and driven by some intemperate zeal: I believe that gentleness does more to convert adversaries in the church than harsh methods full of verbal abuse, etc. If there is anything heterodox in any of this, I will most willingly suffer correction by those to whom this power belongs.

§32. I turn to impiety; I hear that the supposed sign of this is that I strongly disagree with my late blessed father. From this someone inferred that I did not care about divine laws, but wanted all of them to be purged from sacred Scripture. This is certainly a cheeky argument, and one that is in many ways contrary to logic. I confess that I sometimes dissent from my father, but the Catechism does teach me that I may do so with a clear conscience and without violating the fourth precept [of the Decalogue]. If someone wanted to extend this to the point of saying that the honor and reverence owed to parents also included some sort of adulatory denial of truth, though truth is guided not by authority, but by right reason, I fear that this person would be hissed and booed even by the catechumens, who are still learning the Catechism. It is not true and even a lie to say that I think harshly of my father. I appeal to all of you to say whether I ever uttered a single little word which could be interpreted as disparaging my father, whenever I indicated to you my disagreement with him. As I have pointed out above, it is possible for me not to mention the name of my father or of others to whom I owe reverence without damaging the reliability of the information. It is true that I did not think highly of some doctrines of the Peripatetics, because I noticed that they did not rest on any firm reason; it is also true, and I acknowledge it, that I sometimes referred to the philosophical writings of my father on this in my lecture, since he was, to my knowledge, the best interpreter of Peripatetic philosophy, whose ideas I developed further. But then there was no more of a disagreement between my father and myself than there is in a court of law between a plaintiff and the lawyer of the accused, especially as my blessed Edition: current; Page: [24] father himself diverged from common opinion in many ways, since he had better reasons, not only in his published writings but also in hitherto unpublished manuscripts (as we will show in an example in the following passages), thus setting a praiseworthy example to me.

§33. There remains the accusation of being an innovator. The disciples of true wisdom do not take this very seriously, since it is to be considered a matter of pride not to want to see everything with the eyes of others, but to find out something that has been overlooked by others, on the basis of one’s own reasoning powers. And that is the specific characteristic of Eclectic Philosophy, which I have adopted. Its superiority over sectarian philosophy is demonstrated in an erudite dissertation by Johann Christoph Sturm, which preceded a treatise on Eclectic Philosophy that appeared in the previous year:37 But none of the Sectarians or none of those who worship antiquity as if it were a deity will refute this [eclectic philosophy], nor can they refute it, as I have shown to you on another occasion.38 Thus I embrace many new ideas and I reject many new ones. Many new ideas I introduce myself by making use of my liberty of philosophizing and by being guided by reason which accepts new and old ideas equally. If a reply were required, I could fittingly use the sharp-witted epigram of a man among us who is both an excellent theologian by virtue of his life and his doctrine, as well as a most elegant poet—an epigram with which he recently honored participants in a public disputation:39

  • Whoever, in oral debate, wants to protect the errors of the ancients
  • And boasts that everything he teaches is ancient
  • He, while he mocks the others by the name of innovators
  • Will graduate in the class of the obsolete.
Edition: current; Page: [25]

I know that it is not easy to introduce something new in theological matters because the peace within the church must not be disturbed, though novelty can be defended if it is put forward properly. But I deny having introduced any novelty in that sense and have submitted my Institutes to public censorship.

§34. Yet these calumnies allowed me to see that some had taken the concise brevity which I used in the first book as an opportunity to distort my words. I therefore not only expressed my meaning in the second and third books more elaborately than I had originally intended to, but also conferred privately on the matters in the first book with some friends, men whom I revere for their supreme zeal for piety which is the true theological virtue. I asked them to warn me in time if they detected anything there which was contrary to the articles of faith, or might seem to be so, or could be interpreted in a bad sense because it was ambiguously expressed, or which promoted some novelty dangerous to sacred doctrine. And they were very happy to do so, discussing various objections with me in a peaceful manner. I accepted these gratefully, and in order to explain what is expressed rather obscurely in the first book and to reaffirm what is doubtful, I can only communicate to you the ideas which came into my mind as a result and from my own rereading of that book. Insofar as possible, I do this very briefly and according to the rule that I either teach you how to avoid an objection through an appropriate interpretation of my intention or that I show that the opinion I defend, even if new, is not theological, and not even so new, but resting on the authority of men who are above suspicion, and often on that of our own theologians, even if this opinion is not commonly accepted.

§35. In chapter 1, §§3ff., I set out a much improved and corrected classification of faculties, and in §22 of the same chapter I assert that the common doctrine of the Peripatetics in this matter is full of endless errors. And I do not change my opinion on this matter now. However, this doctrine is certainly not theological, nor even new. For while I believed at the time that I had been the first to detect these errors, since I only remembered one error that my father pointed out in his history of metaphysics, published Edition: current; Page: [26] together with his metaphysical questions,40 namely that the Scholastics described their metaphysics as wisdom, when it was nothing other than a dictionary of terms, many of which do not serve wisdom, but sophistry. Another error he pointed out in his annotations on practical philosophy was that intelligence was listed among the theoretical faculties. Yet, while doing something else recently, I noticed an elegant meditation in the manuscripts of my blessed father, which showed that the other observations I had made on the common division of qualities were already made by him around 1660. On this account I congratulated myself on the similarity of my thoughts with those of my father. This discussion is a little too long to be inserted conveniently into this preface. Yet my point will become clear if I offer a summary of his intention and his procedure in the division of the qualities. He says:

There is on the one hand intellectual virtue, on the other the virtue of the will; among the intellectual virtues one is simple, that is, intelligence, which belongs equally to theoretical and practical principles, while the other is composite. This composite intellectual virtue is either theoretical—that is, wisdom and science—or practical—that is, prudence, the guide in moral affairs, and diligence, which is the guide in matters of art. The virtue of the will is either moral, the secondary subject of which is the sensitive appetite of desire or anger; or it is artificial, that is, art, the secondary subject of which is the locomotive power of the mind as well as the body.

§36. However, as far as I know, this observation is my own, for in the same chapter 1, §23, I disclose a blatant error, contrary to Christian theology, on the difference between theoretical and practical faculties: it is illuminated by dissertations 5 and 6 of the Platonic philosopher Maximus Tyrus.41 There you will discover many arguments which he formulated on the superiority of theoretical over practical philosophy and which smack of the pagan hypothesis that the essence of God consists in contemplation Edition: current; Page: [27] and that the approach of man to God is through theoretical contemplation. I remember that among the speeches of my blessed father there was one, the 21st,42 in which he himself defended the superiority of a life of theoretical contemplation. But it is not true that he disagrees with me; in fact, he confirms my opinions in many respects. The purpose of this speech is to demonstrate the superiority of the theoretical life based on the prerogative of the first table of the Decalogue over the second. We do not deny this prerogative, but we do deny that the first table pertains to a life based on theoretical contemplation, and so we disagree in the definition of the terms. For the entire Decalogue regulates human duties, and these are the subject not of theoretical philosophy, but of practical philosophy, and the duties of man toward God will always concern practice, not mere theory. Our blessed father’s statements concerning pagan opinion on the superiority of theoretical philosophy over practical at the beginning of the said speech do, however, amply confirm what we have posited in the said chapter 1, §§24ff.

§37. What requires some explanation, however, is my statement in §24, toward the end, that “it is a false opinion of the pagans that God’s essence consists in contemplation”—that is, pure contemplation—and one which does not have any action as its end. You must therefore beware of mocking my words, perhaps by inferring that I declare God’s essence to consist in external action and so avoid Charybdis by being wrecked on Scylla and adopt the error of those pagans who say God is necessarily joined to prime matter from all eternity. For, leaving aside other matters, this argument would apply only if God were human. But as God’s essence is infinitely superior to that of humans, you would not even be able to infer that (if I had denied completely that God contemplated, which, however, you see I have not done) because contemplation is not the essence of God; it must be action. Similarly you would not be able to infer that if someone says a stone cannot see, he concludes the stone to be blind. For just as there is something in between seeing and being blind—that is, Edition: current; Page: [28] not seeing—which can be predicated of the stone because of its imperfection, so I believe that there can be a third term between contemplation and human action in God which I do not know because of his supreme perfection. For, based on Scripture, I know nothing of God’s essence; but I admire it, and without philosophical knowledge I believe those things which Scripture has revealed to me about it. Now if it is permissible to speak in the human way of God’s infinite essence, then my father’s words in the said speech, pages 504ff., will be found to be very pleasing:

God is happy not only in contemplation, but also in action. For even if he undertook infinite tasks in one moment they would not burden this supremely powerful and pure being. God’s beatitude is derived from himself, not from elsewhere. We by contrast owe whatever we have that is good to God, not to ourselves. What worms we are when compared to the divine majesty.

§38. In the same chapter 1, §29, I say that “Law is always binding, pacts are not.” Of course the consent of two or more parties produces an obligation (Scripture tells us so repeatedly and confirms that we are bound by promises). I discuss this in detail in chapter 6, book 2, on preserving faith; but I want the obligation that follows from the pact not to be the product of the consent itself, but of the will of the legislator who commands the keeping of promises. Thus I immediately subjoin that “a law is binding if there is a pact.” But I have done this in order to contradict more firmly some people who ultimately derive the power of obligation from a pact. Among these the foremost, if I am not mistaken, is Hobbes.43 At the same time I contradict Grotius, who asserts that the laws of nature would be binding even if we assumed that there were no God, etc.44 Yet, even if you preferred to replace the phrase that “law is sometimes binding because of a pact” with the statement that “a pact is binding because of a law” I will not contradict you, because I believe that these two phrases are compatible, Edition: current; Page: [29] since either suggests that a law can be binding in the absence of a pact but not without a legislator.

§39. In §31 of the same chapter I say that the eternal law is a scholastic fiction. By that I do not mean the thing denoted by that term, whether they mean divine justice or the entire order of nature established according to God’s will and decree. For who but the most blatant atheist would claim that these are the product of nothing? I declare, however, that the use of the term law by the Scholastics in explaining their concept is most improper and a fiction: Thus it follows that God does not act according to a law. You may think this is a harsh way of putting it, since what is poorly expressed is entirely different from a fiction, and fictions are not what is expressed in inappropriate words, but what does not exist outside the mind of the author of the fiction or of those who accept it. I would reply that a distinction needs to be made between different kinds of unsuitable expressions. For some of these expressions are such that they are held to be improper even by those who use them; others are such that those who use them claim that the predicate, which is applicable to the subject only in a very improper fashion, can be applied to it properly. I admit that it is not accurate to call the former inappropriate expressions fictions; but as far as the latter are concerned, these are real fictions, because the improper predication, while it is claimed to be proper, does not exist as such outside the conception of the author of the fiction, but he invents it entirely by saying that it is proper. Thus, if someone presented a portrait of somebody as the person himself, or wanted Herod to be a fox in the proper sense of the word, or the meadows to be smiling in the literal sense of the word, he would without doubt be inventing this. But it is evident that most of the Scholastics defended the idea that eternal law is a law in the proper sense of the word. On this basis they initiated wide-ranging controversies concerning the definition of this law, all in order that this general definition of law could be adapted better to God. Mr. Osiander discusses these at greater length in his Typum legis naturae.

§40. The doctrine that beasts are without sense perception clearly does not belong to theology. And if the interest of religion is mixed up with this controversy, the argument for the lack of sense perception of animals even Edition: current; Page: [30] triumphs over the contrary opinion. The words of the true and genuine critic Pierre Bayle on this matter are elegant; compare the Excerpts from the Republic of Letters, March 1684, pages 26ff.:

Religion comes to be involved in this cause because the anti-Cartesians hope thereby to undermine the machines of Descartes; but they are not able to see the benefit which the philosophers’ followers have derived from this. For they believe they have shown that in attributing a soul capable of cognition to animals, all proofs of the natural immortality of the soul are overthrown. They have shown that their opinion has no more obstinate enemies than the godless and the Epicureans, and that there is no better way of attacking these philosophers than by robbing them of all their false arguments, when they bring up the soul of beasts and claim that there is no difference between the soul of beasts and that of men, except that the former have a little less, and the latter a little more soul. It is certain that there are no more godless people than those who say that beasts come very close to the perfection of humans. This is how the Cartesians have used religion for the purposes of their philosophy. But they are not content with this reason. They have examined divine nature to find arguments against the rationality of beasts, and one can say that they have found many good things there.45

And his entire, highly erudite dissertation, which he proposed on the occasion of the treatise of Darmanson, La beste transformée en machine, pages 19–34,46 is worthy of being read by you. To put it briefly, the whole doctrine can be summarized in these few points: (1) The Peripatetics, I believe, concede that the soul of man cannot be conceived as anything other than a faculty for thought. (2) They concede that the internal senses perform acts of cognition. (3) Either it must be conceded that all cognition occurs as a result of thought, or it must be confessed that those who attribute cognition to the senses do not know what they are saying. Thus, (4) the conclusion follows naturally: Animals lack internal senses because they lack reason. Therefore animals must either be granted reason or they Edition: current; Page: [31] must be deprived of both reason and sensation, or perception, or cognition, or whatever word you want to use here. But this doctrine is not so new that it has to be traced from the age of Descartes. Sturm says in the first dissertation of his Eclectic Philosophy, page 54:

the first was Gomez Pereira, who asserted that animals lacked all cognition or perception,47 and Willis in De anima brutorum, chapter 1, page 6, testifies that he [Pereira] was followed in the present century by Descartes and Digby.48 Morhof in his dissertation on the paradoxes of the senses49 says that Gomez, a Spanish philosopher and physician, devoted a lot of effort to this, and in Methyna in 1554 published a book he had worked on for thirty years, which was named the Antoniana Margarita after his parents.50

Add Bayle in the work cited, pages 20ff., where he shows that this opinion perished soon after Pereira, and so the glory of inventing it should not be denied to Descartes. There has even been an anonymous author who reminded Bayle that already at the time of Augustine there were debates on this matter, and to prove this he quotes the words of Augustine from De quantitate animae, chapter 30: “But it seemed to you that there was no soul in the body of living beasts, although this may seem absurd, and there has been no lack of highly learned people who adopted this opinion, and I believe there is no lack of them now.” See Bayle, Nouvelles de la République des lettres, month of August 1684, page 2,51 and Rondelius in a particular letter, a fragment of which Bayle published in the month of October of the same year, page 290,52 points out to him that more than three hundred Edition: current; Page: [32] years before Augustine, at the time of the Caesars, the Stoics doubted whether beasts had a sensitive soul; another three hundred years before them Diogenes the Cynic did the same, even though the anonymous author soon retracted his opinion because in studying Augustine he had noticed that in the words quoted from Augustine the question did not concern the doctrine of Pereira. The learned Bayle therefore suspected that perhaps passages quoted by Rondelius did not clearly prove his intention; see the month April 1685, page 425, which is a question we perhaps will discuss in greater detail elsewhere.

§41. The arguments which I put forward on the imputability of moral actions in chapter 1, §66, are almost all taken from the writings of Mr. Pufendorf, Of the Law of Nature and Nations, book 1, chapter 5, and On the Duty of Man and Citizen, book 1, chapter 1. Yet I believe that the Peripatetics pretty much agree with me on these rules and that they are generally taught by them in their books on ethics, especially the principle which I state in §69, that facts cannot be morally imputed to a person when he has no influence over their presence or absence. But I understand all these rules to refer to the human court [forum], because in the entire Institutes I discuss jurisprudence, which has as its ultimate end the preservation of temporal peace through the execution of laws and the administration of justice, and so I do not contradict the theologians and their doctrine of the imputation of original sin in the divine court. The fact that I composed a treatise on divine jurisprudence is no hindrance, though it might lead a reader to believe, according to the laws of sound method, that these general rules are to be taken in such a wide sense that they apply not only to the human but also to the divine court. But it will be clear to anyone from what I say at the end of chapters 1 and 2 that jurisprudence, even when it is called divine and is concerned with divine laws, is not concerned with the divine court, but leaves this entirely to the theologians. I wanted, however, to add an explanation of my opinion because I wanted to avoid causing scandal to others.

§42. In chapter 2, §2, I state that certain divine laws have the well-being of humans in this life as their purpose. And by that I mean their immediate Edition: current; Page: [33] purpose, for this is what I say expressly in the same chapter, §§125 and 138. Thus I do not deny that every divine law which has eternal salvation as its purpose also simultaneously has well-being in this life as its purpose. I do deny, however, that this is its immediate purpose.

§43. In §3 of the same chapter I said that I disapproved of the common division of divine law into moral, ceremonial, and forensic. Yet I deny that I have thereby committed an impiety or a crime against sacred theology. I have put forward my reasons for this disapproval in a public disputation On the Crime of Bigamy, §§8 and 20.53 Many who use this division treat moral and natural law as identical, and argue that the Decalogue everywhere inculcates precepts of natural law, or they defend the view that outside of the Decalogue there are no moral precepts in Scripture. They do this although it is evident that the moral law is broader and comprehends within it positive universal law, and that the Decalogue also inculcates universal positive laws, for example in the ninth and tenth precepts; finally there are moral precepts outside the Decalogue, for example in Leviticus 18.54 As far as the first point is concerned, Mr. Osiander agrees with it in his Typum legis naturae, page 117, §15, where he says lucidly that “the moral and the natural law are based on different reasons.” The late Dorscheus said in his first Disputation on Moral Theology, §10:55

divine positive law was superadded to natural law and communicated to humanity. It was put forward by Moses more fully and restricted to the government of the Israelite people, which was more ancient than the laws of all nations and also provided all first legislators with the origins of their laws. This is clear from the testimony of the pagans, on which Eusebius comments in book 1, Praeparatio evangelica, chapter 9;56 from the fact that they trace the origin of all laws to Egypt, which, according to Joseph Edition: current; Page: [34] Psalm 105.22, owed its habitation to the ancient pious Israelites;57 from the comparison of Roman and Hebrew laws by Justus Calvinus in his Themis Ebraeo-Romana, William Velrot in his Parallels of Jewish and Roman Law, Molinaeus in his Comparison of Roman and Hebrew Laws, and others. Add Diodorus Siculus, book 1 of his Bibl., chapter 5, page 43.58

Then he [Dorscheus] adds in §11 that the written moral law, which was transmitted by Moses, was known already before the time of Moses, and he proves this, according to the order of the precepts of the Decalogue, with various scriptural passages. Finally he says in §13: “It is clear from the divine illumination of the Patriarchs and God’s proclamations in Genesis 3, 4, 6, etc., that moral laws which were known before the time of Moses were not only to be ascribed to natural reason but were also positive laws, and thus promulgated by God.” Add to these the blessed Scherzer in his System of Theology, locus 9, §9, page 266: “From this foundation emerges the distinction between the natural moral law and the positive law (which is better than the common distinction between primary and secondary natural law).”59 On the second point, concerning the ninth and tenth precepts, we will soon say more. Concerning the third, what we have just noted from Dorscheus can suffice. Add to this what I discuss in great detail in the Institutes themselves in book 2, throughout chapter 3.

§44. The question concerning government within marriage in the state of innocence, which I touch upon in §§29ff. of chapter 2, is, I believe, not a properly theological question, the affirmation or denial of which implies heterodoxy or breeds scandal in the church. Thus, just as I do not demand Edition: current; Page: [35] that the learned esteem my opinion, so do I not believe there to be any need to search in the commentaries of our theologians to see whether one or the other supports my opinion. I confess that there are several whom I have seen embrace a different opinion from my own. However, if we have to act on the basis of authority, I oppose to all of these the words of Luther on Genesis, chapter 3:60 “But if Eve had remained in the state of innocence, she would not have been subject to the rule of the man but would have herself been his companion in government, which is now a matter for men alone”; but if we want to argue on the basis of reason [rather than authority], I refer to those arguments which I discuss in more detail again in book 3, chapter 3, §§35ff., where I have also taken up this question.

§45. In chapter 1, §51, I state the common axiom: “Nothing is in the intellect which was not previously in the senses,” and this I declare to be true without limitations. But in chapter 2, §39, I say that the human intellect in the state after the fall from grace is like a clean slate, which is suitable for receiving various impressions: and in the same chapter, §§66 and 67, I declare that right reason is part of man from birth as a potential faculty capable of exerting its powers once the ideas have been formed previously by the intellect from sense impressions. I consider the doctrine of the Scholastics far too subtle; they teach that even infants have certain first practical principles by nature in the form of some kind of faculty with which they are born, etc. All these I add here because one follows from the other. And first, concerning that principle “Nothing is in the intellect . . .” this is so trite and widespread that it is to be found in all Peripatetic works on physics, so that I need not fear that this might be an assertion that does not conform to theology; see my blessed father’s Physics, chapter 49, questions 66ff., pages 263ff., and Zeidler’s Posterior Analytics, page 231, thesis 31, and page 572, §8.61 Concerning the other argument, it must be pointed out briefly that Plato and Aristotle disagreed over the way in which cognition works in our minds: Plato claimed this is the result Edition: current; Page: [36] of remembering, while Aristotle said it occurs through the reception of external sense impressions by the intellect. Plato therefore compared the human intellect to a slate that has been wiped clean, Aristotle to a bare one that has never been written on; see Zeidler, Posterior Analytics, page 391, thesis 4, and page 586, thesis 1. You should not however need to believe that when I mention a clean slate I have run over to the side of Plato. The previous principle, “Nothing is in the intellect . . .,” proves that this is not what I mean. This is directly opposed to Platonic philosophy, as I shall demonstrate to you elsewhere. I used the term clean [rasa] according to the common manner of speaking, in which clean [tabula rasa] and bare [nuda] are often used interchangeably. I am, however, happy for this term to be exchanged for the other in order to remove any cause for ambiguity. Finally, concerning the third point, I here have the consent of erudite men above all suspicion, and not only from other universities, but from our own. I refer again to Melchior Zeidler from Königsberg, who in his frequently cited treatise, book 2, chapter 3, §2, and in many following chapters shows in great detail that human reason from the time of birth is only a potential, and that ideas are innate only as mere possibilities, but not as actual qualities [habitus]. I also appeal to Conrad Horneius from Helmstedt, who in book 4 of his Moral Philosophy, chapter 2, §6, page 559, shows quite clearly that first principles, both theoretical and practical, require a previous knowledge of the terms and cannot be understood by infants.62 I also refer to Johannes Zeisold from Jena, who in the years from 1651 in four public disputations on natural ideas demonstrated our opinion from basic principles and strengthened it against the objections of Sperling at the University of Wittenberg.63 From our doctrine I refer you back to that of my blessed father, who, according to the judgment of our much revered Alberti in his oration on my parent,64 was a Christian philosopher Edition: current; Page: [37] (a title he aspired to throughout his entire life, and which is commonly applied to those people who do not contradict sacred theology by philosophizing, nor defend any opinions which are contrary to Scripture and could disturb theology. But if someone wanted to distort the meaning of this elogy and imply that this blessed man confused the disciplines of philosophy and theology, which are most clearly distinct, and that he attempted to demonstrate theological theses from principles of reason or philosophical theses from hypotheses of revelation, then he would do my blessed father a great injustice, since he would never have dreamed of confusing the two). My father therefore put forward these same principles which we have taught concerning natural knowledge, even concerning the knowledge of God himself; see his Physica, questions 68ff., page 284:

This rule is valid (nothing is in the intellect, etc.), but only concerning those ideas which are in the intellect in the form of an act, or an intelligible species, but not concerning those that are there in the form of a potential or a habit. A.: Prove it. B.: There are in our intellect certain innate ideas of the first principles, but they exist in the form of a potential, even if no sense perception of these principles preceded them. A.: I thought, however, that there are some intelligible species in our intellect, without having entered through the senses. For is not God (to leave aside other examples) in our intellect, although he cannot be grasped by sense perception? B.: Hear therefore another qualification: there is nothing in the intellect, which did not previously exist in the senses, whether in itself, or through something else. Thus I grant that God is not himself an object of sense perception, but I deny that he does not become such an object through something else.65

§46. These passages will show you that my opinions on these matters are neither new nor particularly heterodox because they were defended by men who have never been suspected of heterodoxy. Those who disagree, however, as well as those who generally defend the opinion of the Scholastics Edition: current; Page: [38] point to Romans 2, verse 15, where it is said that the law of nature is inscribed on the hearts of men. That is why the Index of Novelties, n. 19,66 also claims that the illustrious Pufendorf denies the law of nature to be something implanted in human nature and an innate faculty. But the illustrious man makes a fully satisfactory reply to this in his Apology, pages 46ff.,67 where he shows very clearly, and by using other, parallel passages of Scripture, that the phrase writing on the hearts of men means something other than an innate faculty of this kind. And Zeisold in his entire fourth disputation already tried to show the view that our opinion was not contrary to religion, and gave a satisfactory reply to many contrary arguments by Sperling and pointed out that already in his time our famous philosopher and theologian Jacob Martinus had attacked that doctrine of the Scholastics.68 Sperling therefore, in his Anthropologia, book 1, chapter 3, question 8, pages 186ff., insisted on the passage from the Apostle as a proof for innate ideas by writing:

For this the Apostle said: “For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another.”69 Here it is possible to form the following conclusion: Whatever is inscribed on the hearts of pagans is not acquired but innate. The work of the law of nature is inscribed on the hearts of the pagans. Therefore the work of the law of nature is not acquired, but innate.70

Among other things he cites the response of Martinus from the Partitiones metaphysicae, section 3, question 4, page 321, where he writes as follows:

The response to the authority of the Apostle is at hand: a distinction needs to be drawn between the inscription itself and the means of inscription. When natural [innate] knowledge is denied, this does not mean that Edition: current; Page: [39] pagans do not have the law of God inscribed on them by nature, since they do what is required by God’s law; but what is denied is the form which some insist on, namely, that it is inscribed at birth: that cannot be demonstrated from the saying by Paul referred to. Attention should be paid to the intention of the Apostle, and then the matter will be clear. He argues thus: either the reason for works in the cause of justice is the same for Jews and for Gentiles, or God regards the person. God does not, however, regard the person. Therefore the reason for both is the same. The minor premise is proved, or, rather, is contained within verse 11.71 For God does not regard the person. The proof of the major premise and the connection is contained in the following verses and can be summarized in this syllogism: all those who sin equally cannot, as far as their sins are concerned, be judged differently before God. Jews and Gentiles have sinned equally, therefore. . . . The Apostle proves the minor premise in verse 12.72 For whoever has sinned without a law (that is, pagans) will also perish without a law: and those who have sinned against the law (the Jews) will be damned by the law. Having argued thus, the Apostle proceeds to verses 14 and 1573 (in which the entire core of the objection that was raised resides) and shows that his statement that Gentiles had sinned without a law was not to be understood simply and absolutely, but in a certain sense. Pagans lacked the external promulgation of the divine law (these are the words of Mr. Mylius on this passage), which was made to the Israelites in the Sinai desert. That is what Paul means when he says they have no law. In the meantime, he says, nature provided what was required by the law and they therefore were a law to themselves; that is, they had within themselves and in their entire nature the means to balance this defect to a certain degree. Will therefore the law insofar as it is revealed be opposed to natural law?74

Among the modern theologians I mention Mr. Osiander, who in the Typum legis naturae, page 158, where he speaks of the nature of the human intellect, calls it an “indifferent and indeterminate power, according to Aristotle, Edition: current; Page: [40] a bare slate,” since on the same page he adds a reference to that passage of the Apostle, but see also pages 129ff., where he argues against those who deny that there is a natural law and insist that humans introduced all laws for themselves on grounds of utility. He first refutes this opinion by referring to the same passage from Paul; then he argues against those people on the basis of reason and adds a reference to natural ideas and says that “Reason is by nature instructed with certain theoretical principles which are so evident that they are evident even to an infant if the relevant terms are put forward, for example, what a whole is, what a part is . . . and so it is to be understood that the knowledge of these terms is pre-existing and based in the mind.” Thus this venerable man says quite clearly that these ideas are mere possibilities until the terms are understood. Finally, the fact that even the smallest infants are credited with faith by the theologians is no obstacle, although faith requires some knowledge, and this knowledge has to be actual [i.e., not potential]. For faith is not the work of nature. But we are here concerned with a natural effect that can be demonstrated with the light of reason, and that need not be explained through obscure and meaningless words. Therefore, just as a physician who denies that a virgin can give birth does not in that respect contradict a theologian who says that the virgin Mary did give birth, so the philosopher, when he denies that there is natural knowledge from birth, does not contradict the theologian who asserts that faith is awakened in infants by supranatural means from birth. Rather, this philosopher, if he is a Christian and sees Scripture telling us that infants have faith, does not allow himself to be drawn into the debate of the Scholastics, whether this children’s faith is an act or a potential or an ability, but will think roughly as follows:

Holy God, you have said in your word that you have not manifested the mysteries of faith to the wise of this world, but to the foolish and those who believe that all of wisdom is of no use in understanding even the smallest point of the mysteries of faith; you have through your elected vessel reminded humans that in matters of faith they should not allow themselves to be deceived by philosophy. See, almost the entire world has come to the point that it wants to measure the incomprehensible mysteries of faith with some sort of Scholastic theology, which is nothing other than a chaotic mixture of reason with your revelation. But help me Edition: current; Page: [41] to prefer the authority of your word to the authority of humans, however great they may be, and if I see in matters pertaining to faith your words before me, which are either wholly clear or can be interpreted by reference to other parallel passages, help me to believe these by simply assenting to them, even though I do not understand how the predicate is connected to the subject, and not to try to express your ineffable mysteries with metaphysical distinctions or other useless subtleties of this kind. Therefore, if your word teaches me that infants, who do not have the use of reason, believe in Christ, I believe this, even though I cannot form a distinct concept of this for myself, because I know that your word does not lie. But I do not know what this “faculty” [habitus] is which the Scholastics, who want to explain Scripture from philosophy, intruded into Scripture, and which they insist is neither a potential nor an act. And so, while they want to be understood clearly, the effect is that they themselves do not understand what they want, and nor do others who hear them. . . .

§47. In the same chapter 2, §65, I aim to prove that divine positive law must be derived from divine revelation and I refer to the passage by the Apostle, Romans 7:7: “I would not have known that concupiscence is a sin if the law had not told me: thou shalt not desire.” This passage I interpreted to mean that the Apostle here professes that he, if left to the devices of his natural reason, would not know that concupiscence is a sin unless the divine positive law had told him: thou shalt not desire. But later I noticed that not all of the theologians shared that opinion, that this law, “thou shalt not desire,” is positive law, but some considered it to be natural. Based on this opinion one could argue against my doctrine as follows: the law on concupiscence rests on creation itself, and this requires from us that we are as we have been created, and that is without any desire for evil; therefore this precept is such that if God’s justice and truthfulness are to remain intact he cannot do anything other than demand that man is such as he in his holy counsel had destined him and made him to be. For the law on which creation rests is natural, not positive. From what has been said it follows that the difference we looked for between natural and positive law in §64 does not cover the whole question, because the knowledge of natural law must be sought from right reason, positive law, however, Edition: current; Page: [42] from revelation. This would be valid if our reason itself had not been obscured: while it recognizes and detests the more obvious vices, it does not extend to the deeper and more subtle ones, which it would, however, have recognized equally well in the state of innocence, even though we would have known the positive laws only from revelation. And therefore it is the result of the corruption of nature, which the Apostle himself deplores, that he does not even realize his own illness except from the renewed promulgation of the law, etc. But though I placed this periphrasis of the passage from Paul into my Institutes, I did not do so without consulting our theologians, and above all I looked to the words of the late Scherzer in his Systema theologiae, locus 7, §9, page 154: “Innate concupiscence is prohibited in the Decalogue; therefore it is a sin. In Romans 7:7, concupiscence is discussed, the lawlessness of which cannot be recognized on the basis of the law of nature.”75 And if you compare these words of the blessed Scherzer with my Institutes or my exegesis of this passage, I am certain that I will not have diverged from his meaning in the least way, and that this doctrine is one that will not cause any unrest in the church, even though other theologians favor a contrary opinion. I do not want to argue with them, but it does seem to me that—leaving other things aside—this disagreement can be easily resolved by distinguishing between the law of nature in the primordial state and that in the state after the fall, so that the objection against our opinion is relevant to the former, but we, following the blessed Scherzer, speak of the latter. And I believe that with this distinction the dispute can be resolved better than if you distinguish as follows: it is one thing for something to be prohibited by natural law, another for the prohibition to be recognized by reason alone in its present state. For, first, Scherzer not only says that the sin of concupiscence cannot be recognized by reason, but he says notably that it cannot be known from the law of nature. Second, I suspect that this distinction can be attacked on the basis of the passage from Paul, Romans 2, verses 14 and 15. While this testifies that the laws of nature are inscribed on the hearts of all nations, this passage according to the common interpretation means that the pagans also knew the law of nature after the fall, without the aid Edition: current; Page: [43] of revelation, and that therefore natural law at this time is nothing other than that which can today be known by humans from the light of reason, be it through certain ideas present from birth or through acquired ideas. Nor will the fact that the law of nature is unchanging and does not admit dispensation remove the distinction between the law of nature of the state of innocence and that after the fall, as long as you make the following distinction: the variation of the law itself, in which there is a proposition representing the intention of the legislator, is one thing, and another is the variation of the degree of knowledge of the same law, inculcating the same proposition in the state of innocence and in the state of corruption.

§48. I think the matter is clear, but to make sure you do not believe that I, who am not a theologian, have improperly tried to judge a dispute among theologians, I cannot but cite Osiander. Though he is a little long-winded, he will not only confirm my argument, but will absolve me from the accusation of introducing theological innovations. This eminent man says in his Typum legis naturae, pages 167ff., §§44 and 45:

The law of nature considered in the state of innocence and that of corruption after original sin are quite different from each other by their nature, condition, and effects. . . . For the law of nature in the primeval state requires the rectitude of all faculties, which tolerates no crookedness; it looked toward the divine image and was founded on justice, sanctity, and truth. For God created man morally good, not with infantile imperfection, as Josephus claims,76 and not just simple and free from evil, as the Photinians77 believed, but positively morally good in terms of the intellect, the will, and the passions. . . . See the passage in Deuteronomy 9, verse 5. Thus Augustine in his sermon on the truth of the Apostle, chapters 2 and 14,78 says that man is made just and that nature has been created good by God. But the law of nature in the state of corruption is but a shadow of the primeval rectitude and a vestige of the divine image, Edition: current; Page: [44] faded letters from a clear type, because it exists with the completely corrupt condition of all faculties, the blindness of the intellect, the perversity of the will, the depravity of the passions, on which see Ephesians 2, verses 1, 2, 3. Second, the primordial law of nature forbade all concupiscence; it showed that all discord between the faculties was bad, and not only obliged a person to an active justice, as Molinaeus79 believes, but even nature itself to intrinsic rectitude, as creation itself teaches us. See the passage in Genesis 1, verse 31, and compare Genesis 2, verse 25, and Genesis 3, verses 6 and 7. Augustine said correctly that the first man was created without guilt or vice in his nature (sermon 11 on the Apostolic Truth, chapter 2).80 The law of nature after the fall, however, does not eradicate concupiscence, nor does it draw attention to this profound evil in the innermost fibers of the mind, so that the Apostle himself says in Romans 7, verse 7, that he had not recognized sin without the help of the law—that is, the Mosaic law—which prohibits concupiscence. For although he acknowledged, as a Pharisee, that concupiscence which leads to evil external actions is a sin, he believed that the inner stirrings were not to be given this despicable name. Although he was able by the light of reason and natural law to come to realize that the inner stirrings, produced with the concurrence of the will, were reprobate fruits, he still could not penetrate to the evil root and recognize the evil of habitual concupiscence without divine law. Thus he says further in verse 14: “We know that the divine law is spiritual; but I am carnal, beholden to sin.” The Decalogue therefore or the divine law is spiritual, but man, as he is, remains carnal even with the law of nature: for if a regenerate person calls himself carnal, regardless of the fact that the spirit of renewal is dominant within himself, how much more carnal is an unregenerate person, even though there is a little of this spirit in him. Third, the law of nature in the first man included the love of God and of our neighbor and was a pure and perfect faculty, with which he could produce truly good works, which pleased God. And when this law was observed, it culminated in eternal beatitude. For he who acts thus will, according to Moses, live in them (Leviticus 18, verse 5). This is why Augustine also declared that Adam had been created as a blessed being, endowed with a good will. For the joy, he said, which is born from the acquisition of this good, is called the blessed life since it elevates the mind peacefully, quietly, and Edition: current; Page: [45] constantly—unless you believe that to live blessedly is something other than to enjoy what is truly and certainly good. See book 1 of the work On Free Will, chapters 12, 13, and 14, On the City of God, chapter 20.81 But the law of nature in corrupt man does not know what this love of the true Deity—the Father, the Son, and the Holy Ghost—is, nor does it know this sincere and perfect love of our neighbor; it does not give birth to truly good works, but—if you consider the evil within the soul—only to the appearance of virtue, nor does it lead to eternal beatitude. Otherwise pagans could, by constantly observing the rules of external honesty, aspire to the goal, the ultimate end, which exceeds all of nature after the fall of Adam and all the natural powers [i.e., eternal life]. That would also be contrary to the explicit words of Christ in Mark 16, verse 16. It is the case, therefore, that the law of nature in the state of innocence is not the same as the law of nature in the state of corruption, since the former draws attention to a more sublime dominion and binds humans to it; the latter, however, exists in an inferior sphere: it does, of course, take care that humans do not degenerate into beasts, but does not in any way stimulate the search for and the veneration of God. It is also the case that the law of nature which had informed the mind of Adam was repeated in the Decalogue which corresponded to it exactly; it required that perfection which shone forth in Adam and demanded the highest and most extensive love of God and one’s neighbor, as interpreted by Christ, Matthew 22, verse 37.

§49. In §§125ff. of chapter 282 I stated that the divine positive laws, which direct the duty of man concerning the worship of God, have eternal beatitude as their immediate purpose, and I immediately related ceremonial law to this. Yet I sensed later that there were some theological arguments which could be put forward against me on that matter. One is that the ceremonial law did not have eternal beatitude as its aim in the sense of being a means to acquiring it, so that whoever rigorously observed the Decalogue would achieve salvation. The ceremonial law was also imposed after man had become corrupt and incapable of being saved through a law, and Edition: current; Page: [46] divine wisdom would never have imposed a law for a purpose that could never be achieved. The purpose of this law was rather that the Israelite people and the church, from which the Messiah was to be born, should be distinguished from other nations and that the law should be a guide to this end for those people who were subject to it and had that particular promise. The ceremonial law as law therefore did not save anyone, even if it was adhered to rigorously, but it did contribute to salvation, insofar as it furthered belief in the Messiah. For it cannot be denied that the sacrifices and the other sanctions of the law relate to the faith in Christ, but that the law and its sanctions are one thing, the faith they encourage is another. God, therefore, did not have either temporal well-being or eternal salvation in mind when he framed the ceremonial law, in the sense that it would be obtained through this law. But he prescribed a form of worship which on the whole led humans toward faith and the Messiah and directed them toward him, so that they might achieve salvation through him and by these means. If God intended something with a law, this would be obtained by adhering to the law. In that case God would have done better if he had not given corrupt human nature any law at all and had tried to bring about their salvation without a law, because the honor of saving humans, according to his own order, is due to his grace and to faith alone, etc. What do we reply? To put it briefly: We agree completely that, by observing the ceremonial law, humans cannot acquire eternal beatitude, but we deny that therefore it cannot be said that God intended the eternal beatitude of man in this law. We argue, rather, that because God in imposing this law wanted to provide guidance toward faith in Christ, he thereby intended to save humans. We believe it also has to be said that in the very imposition of this ceremonial law God intended the salvation of man, not immediately, but eventually, insofar as it contributed toward faith. Therefore we note that this phrase that “God had a purpose in the law” is to be understood in two ways: first to refer to an intention, which supplies the law as an immediate means to achieve this end; second, it is understood to refer to an intention, which looks to achieve an end in such a way that the law itself does not supply the means, but only leads us to the means to achieve the end. The former meaning is that used in the objection, but we are concerned with the latter sense in our Institutes. I will Edition: current; Page: [47] illustrate through a simile that the latter sense is not inappropriate. Thus it is not inappropriate for me to say that he who studies physic because he wants to later devote his efforts to medicine intends to cure the human body, even when he learns in physic the imperfections to which the body is subject. This is so even though the knowledge of these imperfections is not the means to achieve this cure, but only leads to another discipline which does show the cure, namely, medicine. Yet I can forgive someone who has skimmed my Institutes or read them superficially and then raises this objection, because I realize that my choice of words encourages it. For I had said that in the laws which concern the worship of God, including the ceremonial law, God immediately intended the eternal beatitude of humans. How did God intend this salvation in a law if the law itself is not a means to achieving it? The ceremonial law and all the other laws that were published after the fall do not dictate beliefs that are to be held, but actions to be performed, and regulate some matters concerning divine worship. We admit that they look toward eternal life only in the last instance and to the extent that they offer guidance toward faith. But we thereby clearly assert that these same laws are concerned mediately with eternal beatitude. If this is the case, surely, one of the main principles on which our Institutes rest would be overturned. Thus, in order both to support my principles and to put to rest this grave doubt, it is all-important that I resolve another ambiguity which is contained in the phrase “to intend something immediately.” The word immediate is taken either in an absolute sense as a negation of any other means, or conditionally as a negation of certain means. If someone wants to examine accurately what we have discussed in our Institutes in the said chapter [2 of book 1], §§125ff., it will be clear to him that when we say that “laws regulating divine worship have eternal beatitude as their immediate end,” it is not our intention to deny all means, such as faith, but to deny only that these laws concern eternal salvation via temporal well-being, or that they concern temporal well-being and the tranquillity of humanity in the first instance and eternal life in the second. We will explain our meaning again with a simile. If I compare the study of nature with ethics I say correctly, and certainly not inappropriately, that the immediate aim of ethics is the care for the mind; the study of nature, however, has as its immediate end the care of the Edition: current; Page: [48] body. Apart from this comparison, however, or if I compared the study of nature with medicine, it would necessarily follow that the care of the body through the study of medicine is mediated by medicine even though the study of nature would have this care of the body as its immediate aim through the mediation of medicine.

§50. At the end of chapter 2 I discuss the exact difference between jurisprudence and theology and the true boundaries between these two university faculties. I argue there that the explanation of divine laws concerning the duties of men toward their fellow men also belongs to jurisprudence and that this doctrine is shared by jurists and theologians; see §§137, 141, and 142 in that chapter [2]. But in order to remove any remaining doubts on that, I appealed (1) to the common practice in the territories of the Protestant princes, for it is known that in matrimonial cases (and the divine positive law, which also pertains to jurists, applies particularly in these cases) when there is any doubt concerning a prohibition in divine law, opinions are sought not only from the theologians, but from the faculties of law. And this is because the doctrine on marriage among Protestants is part of ecclesiastical jurisprudence, which Carpzov at our university and Brunnemann and the excellent Stryk in Frankfurt an der Oder have explained in greater detail in entire treatises.83 And in these treatises they also cite opinions of faculties of law on matrimonial cases. Thus from the response of such a faculty of law emerged the controversy between Buch holz, Havemann, and Strauch concerning the case of a marriage with the sister of a deceased wife.84 Bucholz listed various testimonies of our theologians to prove that matrimonial cases are a secular matter, because matrimony, according to our belief, is not held to be a sacrament; see the responses of the Rinteln jurists, etc., numbers 9 and 10, pages 27ff.85 (2) The practice of the consistories86 shows the same, because usually half Edition: current; Page: [49] their members are theologians and half are jurists, for no other reason than that spiritual matters concerning eternal salvation pertain primarily to the theologians, while secular matters, which directly concern temporal tranquillity, are the business of the jurists. And in order to show that this is not a gratuitous comment, I appeal (3) to the principal Constitution of the Elector Augustus, the Saxon Elector, in the Regulations of the Leipzig and Wittenberg Consistories, title 1:

Since not only cases of conscience, but also secular cases must be brought before these consistories and dealt with there, concerning matrimonial cases, the goods and salaries of church employees and schoolmasters, the life and conduct of teachers and congregation, none shall be staffed exclusively with either theologians or secular officials, but in equal measure with persons from both estates, that is, with two learned and pious, upright and honorable theologians, and with two secular officials. Title 8. The opinion or judgment, however, should be formulated and pronounced according to holy Scripture and the laws that are commonly accepted and in general use in our territories. And since a number of eminent theologians, [such as] Luther and Phillip [Melancthon], drew conclusions from Scripture, which concern cases of marriage and other similar matters but are incompatible with the common laws, so the members of our consistories shall pay heed to these, too, and insofar as these have been hitherto observed in our territories and have been accepted through the practice of the consistories, shall formulate their judgments and decisions on that basis.

Therefore, I concluded in §140 of chapter 2 that in this respect jurisprudence is privileged in comparison to medicine and philosophy, because these two must not draw their principles of demonstration from theology. There is no doubt in the case of medicine; nor do the physicians pretend to have the right to do so. In the case of philosophy I recently gave you conclusive proof of this. That is what the venerable Faculty of Theology of our university referred to recently in the program for the ninth Sunday after Trinity this year, displayed in public, which said that “nobody in our university should be permitted to explain the mysteries put forward in Scripture, or to derive what is just and unjust from revelation, which is the duty of moral theology, or to hold classes on the fathers of the ancient church, the dogmas, heresies, rites, and whatever else ecclesiastical history Edition: current; Page: [50] examines, unless he has obtained the right and the privilege of teaching these matters from us after a thorough examination.”

§51. In chapter 3, §§65ff., I touch on the mixture of philosophy with theology, which was the worst possible thing introduced by the Scholastics, and in the following paragraphs I include Pneumatics87 in that. This goes against the authority of many men who enjoy great respect in many matters, so in order that my opinion may not appear too harsh or new to you, I draw on the authority of the illustrious Seckendorff in his Christen-Staat,88 book 3, chapter 7, §2, pages 514ff.: “Our Messiah did not reject the use of the Jewish schools, but rather pointed to them and called them the chair of Moses. What he did reject, however, was the abuse, that is, the mixture of God’s word with human opinions and interpretations and the formation of different sects: for it is from the disputes of the schools that the factions of the Pharisees and Sadducees developed, about which much can be read in the New Testament.” See also, in the same work, chapter 7, §4, pages 518ff.:

One does not hear it said that Paul had a philosophical manner of speaking or arguing according to the terms of the art of logic, topical argument, metaphysics, or apodictic argument, which were already in existence by then. He was perfectly capable of forming rational and concise conclusions and using ornate expressions supplied by reason and practice without the artful books and teachings of the Greeks, and he kept the Holy Spirit as an instrument for preaching the word. These are the elements that are left over from the good light of nature and which he purged and sanctified. Thus, when he began to dispute with the sects of the Epicureans and the Stoics in Athens and could adapt himself well to people, becoming, as he himself says, all things to all people, he did not need the philosophical wisdom of the schools, but only proclaimed the gospel of Jesus and the resurrection to them [the sects], regardless Edition: current; Page: [51] of how incoherent it seemed to them. And since he spoke publicly (in the Areopagus89) on the square where executions took place, he did have a great opportunity to start talking on, for example, being as such, the divine nature, or the condition of the world, just like the philosophers who came up with these topics and could conduct nit-picking arguments over them with each other. Yet he did not do it but set aside all such art and artful words and began from a point that seemed the worst possible and made them ignorant idiots: that is, from the altar of the unknown God. He then moved on to the foundation of the word of God, without considering it worth examining or refuting their theology and idolatry in detail, or disputing de natura deorum, that is, the nature of God and his properties in metaphysical terms. Instead he began with the article of the Creation and the right knowledge and reverence for God that followed from this: he accused them of idolatry and ignorance. And, leaving aside all their countless and subtle books, he put forward the single testimony of a poet which confirmed Creation, namely, that humans were a divine race or came from God. Thus he left their whole philosophy and subtlety aside, admonished them only to convert by holding up to their eyes the threat of the last judgment and the glorious opportunity, which the judge of the world (Christ risen from the dead) offered through faith.90 Thus it is evident how this incomparable Apostle or messenger of God, who was directly instructed by heaven, taught Christianity even among the most learned people of that age (these were in Athens which had the most famous school of philosophy). He did this without philosophical art and did not use any tools provided by the learning common at that time, unless he found something in a well-known book that conformed to the article of faith concerning Creation. One also finds that he first taught from the Old Testament in the Jewish schools and then used this to prove that Jesus of Nazareth was the Messiah prophesied in it. He directed his two dearest and best disciples and followers (who became wonderful and holy bishops), that is, Timothy and Titus, to Scripture and to reading and repeating it diligently, just as he warned them to abstain from worldly cleverness and school quarrels.91 He warned Christians in general of this, as he did in these words to the Colossians: “Beware lest Edition: current; Page: [52] anyone spoil you through philosophy and vain deceit, after the tradition of men, after the rudiments of the world, and not after Christ.”92

See also chapter 8, §1, page 531: “Very erudite people have already observed that as soon as the philosophers or the learned pagans adopted Christianity and introduced their doctrines and manner of teaching into the church, the quarrels of the schools, of which Saint Paul had warned, increased. Most of the heresies emerged from these, for the same learned men brought their previously held opinions into the church and wanted to judge of the articles of faith according to the rules and modes to which each was accustomed.” And §2, pages 534ff.:

When, however, the old books of the pagan philosophers fell into the hands of the clerics, especially the monks, then Scholastic Theology broke loose, doing more harm than good. It seems to me as if the good monks and priests who first laid their hands on these books were driven by great curiosity and at first made a big secret out of it. They also wanted to be seen to be able to speak and chatter of other things than holy Scripture and the Fathers or the legends and saints’ histories, which is what they almost exclusively fed the laity, both high and low. Their action would have been Christian and good if they had burned the recovered pagan books immediately, rather than using them. . . . For unfortunately it seems that they learned to grasp the meaning of God’s word with the help of these arts. They acted like someone who wants to furnish a palace according to the example of some random old farmhouse. And if one compares the dignity of holy Scripture with worldly wisdom, then they have mixed gold with copper and lead, pure wine with murky water, by beginning to measure and examine articles of faith according to the standards of philosophy. Then they wanted to know how to talk about God, Christ, the holy sacraments according to the praedicamenta and the predicabilia, then substance, accident, quality, quantity, act, potential, moral cause, abstract, concrete, and other such terms, far more nit-picking than those the pagan philosophers had ever produced, and with invented barbaric expressions that had to be applied to the mysteries of faith, which then had to be examined and weighed according to them. Among other countless terms and their distinction were otherness, thisness, identity, individuation, whatness, supposite, whereness, voluntariness, eminently, Edition: current; Page: [53] formally, entitatively, concomitantly, radically, intentionally, primary and secondary, numeric, precise, reduplicative, and many other similar ones. . . . And since this art has taken over almost the entire clerical estate, it was no longer possible to subdue it. Instead it became as necessary as some others, for once one had gone beyond God’s word it was necessary to disprove the errors which developed from this with equal subtlety. This developed in the manner described in the learned proverb concerning the northeasterly wind, which they call Caecius, which tends to produce great waves it cannot disperse. . . . And so scholastic theology became a system which nobody could ever finish learning. On the contrary, the quarrels increased to such an extent and arguments were conducted with so much deceit that it was almost impossible to distinguish any longer the true and well-founded opinion or at least rarely possible to form a definite conclusion about it.

See also the additions to chapter 7, §2, page 299:

Johann Gerhard in his Theological Method,93 final chapter, makes the following comment on the Scholastics: the blessed Luther took the well-founded and salutary decision to ban Scholastic theology, which he called ignorance of the truth and inane fallacy, from our schools, and where one tried to re-introduce it, it was as if one wanted to have acorns instead of bread as food. For, he said, the Scholastics had confused philosophy and theology concerning the principles of disputation. Hence Erasmus compared Scholastic theology, especially as it was practiced at the Sorbonne in Paris, to the centaurs, who according to the poets were half human and half horse.94

Thus you will not be surprised that in chapter 3, §61, I reject that term eminenter, which the Scholastics use in discussing the divine attributes, because you see that the illustrious Seckendorff in the passages cited above reckoned this, too, among the barbaric terms and distinctions.

§52. In chapter 4, §§35ff. I believe I showed through genuine arguments that it is possible, without damaging Christian religion, to use a fiction concerning something that God has revealed to us as being different. And Edition: current; Page: [54] in order that the argument not be conducted in vain, I defined in §38 what I meant by a fiction, namely, the first part of a hypothetical proposition which neither affirms nor denies anything, but which only infers the second part as a consequence from this fiction. This description is appropriate for the incident that gave rise to this controversy. When the illustrious Pufendorf was about to publish his work on natural law, he assumed that one had to abstract from the state of innocence and, when arguing with a pagan, assume the present state of man. On this basis, that is, the hypothesis of the pagan who knows no other state, the pagan must be persuaded of the truth of the natural precepts, however he conceives the origin of humanity. But this is nothing else than to infer a necessary connection between the second part—that is, the precepts of natural law—and the first part of the hypothetical proposition, which the pagan considers true, but the doctor of natural law neither affirms nor denies. The argument that among others is usually advanced against Pufendorf’s doctrine is that a Christian must not invent anything. I could not contradict this opinion any more strongly than by showing that a fiction defined in that sense is not contrary to religion and, moreover, differs from a lie, which I define in book 2, chapter 7. Yet, if someone refused to be satisfied by my argument, I would ask him, before he picks a fight with me, to propose his own definition of a fiction and to show that I have not defined it correctly. If he uses the term fiction in another sense than I do and refuses to explain his meaning of the term by offering an unambiguous description, nobody can blame me if I abstain from a struggle that would be inglorious, like that of blindfolded gladiators who make the audience laugh but are useless at finding the truth, which should be the purpose of all disputation. He may tell me that hypothetical propositions could not be used against him; for example, that in the trite inference “if an ass flies, he has feathers,” the logician does not pretend that the ass flies or has feathers, but only shows the consequence, by which one follows from the other. He may repeat this a hundred times, but I will still uphold my definition of a fiction until he has supplied me with another and better one. Indeed, thinking further on this matter, I can see no way how anybody can deny that in this proposition the prior part if an ass flies is a fiction, unless it is that the term fiction was not expressly used here. Yet the principles of determining Edition: current; Page: [55] equally strong arguments show clearly that it is one and the same whether you say, “If an ass flies, he has feathers,” or you explain your intention thus: “Imagine that an ass flies, then he will have feathers”; just as, again, it does not matter whether you say: “Imagine a person; no matter by what means he has been set in this world, he is nevertheless a social being,” or: “If a person is placed in this world, no matter by what means this comes about, he is nevertheless a social being.” The arguments that are derived from the definitions of things are normally apodictic, and the description I have provided of the fiction shows that it is not contrary to religion, even if we invent something that has been revealed to be otherwise in Scripture or invent whatever pleases us. It is clear from this that it is a gross violation of the rules of learned debate to accept my definition of the term fiction but at the same time criticize the use of fictions and hypothetical propositions, which I used only for the sake of explanation, wishing to show that the reason for the difference is that nothing was to be invented in an argument if the contrary has been revealed by Scripture. For nowhere have I used an argument from analogy, against which otherwise the proof of a disparity would carry a lot of weight. Thus I do not infer that if the fiction “if an ass flies” is valid, then it must also be all right to come up with the fiction that man has been placed in this world, by whatever means, or that there are two kinds of humans in this world, which is a fiction I put forward in §31. So that you do not think I need an argument from analogy, I ask: Do you believe it to be a sin against orthodox religion, if an arithmetician speaks thus: “Let us pretend that there were twelve pots in Canaan in Galilee, of which each held three measures; it follows then necessarily that they were filled with thirty-six measures in total.” But here something is invented which Scripture revealed to us differently, namely, that there were only six pots. And I am convinced everybody will say that this fiction of the arithmetician is close to being a lie, because he invented something contrary to revealed truth. And if that is not said, this will not protect him against the accusation that his argument is absurd, even if he put forward as a proof that truth, especially divine truth, is simple, and that therefore what is contrary to it is a lie. Apart from the fact that here a moral lie is confused with a logical error, how is it possible to say that if our definition of a fiction is assumed and holds up, a fiction which neither Edition: current; Page: [56] affirms nor denies anything is contrary to truth? I believe that all remaining doubts concerning my opinion and its orthodoxy will now have been lifted from your minds. I will add a few comments on its novelty. I do not fear being accused of that, because I am convinced that fictions are accepted by scholars in all faculties. I would even be prepared to bet that, even in their dreams when fantasy strays more widely, none of our people would have thought of asserting that a Christian cannot invent something that is contrary to scriptural revelation. Rather, if someone wanted to examine the writings of the theologians more closely, he would undoubtedly be able to collect several examples of such fictions. So far I have not had the leisure to do so carefully, but I will offer you one, which is very clear and based on the authority of a theologian who is absolutely orthodox, that is, our venerable Mr. Alberti. For I read in part 2 of his Compendium of Natural Law Conforming to Orthodox Theology,95 chapter 7, §21, page 139: “Imagine the following impossible situation: that there existed at that time [when Adam distributed a part of his goods among Cain and Abel, so that the former owned all immovables, that is, the fields, the latter the movable possessions, that is, the cattle] so great a number of humans as would have been required to possess the entire globe; then Adam would have had to grant each individual some part of it, because he had received some for each person.”

§53. In the same chapter 4, §64, I conclude that sociality is the foundation of the law of nature. I do not want to put forward any new argument to prove this assertion, but will refer to a passage from the illustrious Seckendorff, which will, so to speak, make it obvious to you that our opinion already flourished before the birth of Christ, and that it is therefore older than the doctrine of the Scholastics, who derive natural laws from divine sanctity, and older than the very recent opinion of those who look for it in the state of innocence, and that this illustrious man proved our conception of human sociality. This is contained in the Entwurff oder Versuch von dem allgemeinen oder natuerlichen Recht, which is added to his German speeches, pages 442ff., §§10 and 11:96

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It is not difficult to see what the real characteristic and formal nature of this right is, namely, that it instructs the nature and reason of man and regulates his sociability with other human beings, or rather presupposes it. For because all humans have a creator and are the descendants of one man (a fact which the pagans suspected, but we know as a certain truth from God’s word), and have been created by God in such a way, both in their body and soul, that one human being cannot live without another, so the entire nature of man is such that he forms societies with others, not only in the conjunction of man and woman (for this is characteristic also of animals) and not out of a pure instinct, the way herds gather, but with deliberation and rational thought. Therefore, it must be posited that not just need, but the nature and reason of man, which are derived from the divine order, demand sociality and a form and just manner of dealing with each other in such a society. This is evident from, among other things, the fact that if it occurred from mere need, a man who had everything he required for his sustenance and comfort would not desire the company of other humans. He desires it zealously, however, unless he is deprived of natural reason or corrupted by deeply rooted sinful habits or bad education. So, like others, Cicero the learned Roman proves that such a desire is inborn, general, and a work of nature. Thus he says: “Humans are born for the sake of other humans, so that they can be useful to each other and help each other.” 1. Off.97 “Next to God it is man who can be most useful to man.” 2. Off.98 “Nature requires that one human being advise and help another, whoever he may be, for no other reason than that he is human.” 3. Off.99 “Nature drives us to want to help many people, especially in order to instruct them and make them wise. For this reason it is not easy to find someone who would not happily teach another what he knows. Thus we are not only eager to learn, but to teach others.” 2. De finib.100 We differ from animals mainly in that we speak with each other and can communicate our opinion to each other. In another passage he provides a parable by an old philosopher and says:

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If it were possible that a man were elevated to heaven and there saw the glories of the stars and other beautiful things, and then returned to earth, this would no longer give him any pleasure and joy, if he did not find or meet anybody with whom he could talk of the things he had seen and heard.

It can easily be concluded from this that if God had not commanded this sociality, humans would not require any other right in this life than what we see in animals, who have an instinct for self-preservation and seek to satisfy their lust.

And although some favor the opinion that this means of demonstrating sociality achieves little among pagan nations and barbarians, we nevertheless oppose to this the words of the illustrious author, ibidem, page 440, §6:101

The fact that we who are Christians and have specific and detailed civil laws speak about, teach, and inquire after this general divine or natural law has this reason and purpose in particular, among others: (1) that we recognize all the more our beatitude which we receive from the revelation of the divine word and can judge on good and evil all the better. For this reason we also believe the law of God and nature exists in order to discipline us, to direct us to Christ. Thus we do not only realize our faults and errors more readily, but also live all the more in a holy and just manner, because we are bound to it with twofold, even threefold ties. For we are under an obligation to do what is right, on the basis of nature and reason insofar as we are human beings and inhabitants of this world, on the basis of the laws of the magistrate insofar as we are citizens and members of our fatherland, and on the basis of God’s word insofar as we are believers and Christians. (2) that God’s word may not be accepted by all nations, and our civil and territorial law is even less accepted by strangers, but the rules and general reasons of natural right are valid in all human affairs. Even infidels or those outside the church, that is, those who are strangers and not subject to our government, must conform to these, since they must understand and allow themselves to be guided by the teachings of nature and reason, right and wrong, especially in matters of peace and war and in commerce and trade, even though Edition: current; Page: [59] they neither respect nor recognize either the foundations of our religion or our civil laws.

Furthermore, Boecler in the Prolegomena to Grotius’s On the Rights of War and Peace102 pointed out that according to the most ancient philosophers the origin of law and justice had to be derived from the principle of sociality. Mr. Schilter proves this opinion in his Philosophy of Law, chapter 3, §6, page 84.103 Add Augustine, On the City of God, book 19, chapters 5, 13, and 14.

§54. So far I have supported those opinions that might seem either doubtful or ambiguous in the first part of the Institutes. In the remaining two books this sort of explanation did not seem necessary because there I put forward what I meant in a little more detail in order to avoid obscurity. But you should not think that I defend my opinions out of sheer pertinacity and a perverse, instinctive self-love, rather than a desire to find out the truth. And in order to set you an example to follow, and so that you do not think it shameful to abandon your previous opinion after you have been taught something better, I will also indicate some passages which I later believed required some correction. I have already pointed out most of these in the discourse itself. In chapter 1, §53, page 18, the last words are to be deleted: “although the locomotive power of beasts differs from this, since it is devoid of thought.” In the same chapter 1, §75 as a whole is to be corrected as follows: The actions somebody performs under the influence of great fear, such as a promise, are sometimes imputed and sometimes not imputed, whether the action is contrary to the laws or not. This will become clear from the full discussion in the chapter on the duty of man concerning promises. In chapter 2, §116, you should correct the words contained there as follows: “Moreover we believe that the use of this distinction is adequate, because affirmative precepts of divine law always allow for an exception in cases of supreme necessity, while negative precepts do not.” In the same chapter the paragraphs 127, 128, 129, and 130 should Edition: current; Page: [60] be deleted. In chapter 4, §59, write as follows: “And to be precise, the pleasure of the senses will be very rare and practically nonexistent outside society”; and remove the subsequent words of this paragraph, “Through induction . . .” until the end. In book II, chapter 1, §164, following the words: “I do not think so,” put these in their place after deleting the others: “For the law of nature, which forbids killing a person, has itself a tacit exception of necessity, whenever this does not principally have the violation of the law as its object and there is no means of evading it by a natural instinct, as is explained in the examples listed.” Thus, the later paragraphs 165, 166, 167, 168, 169, 170, 171, 172, and 173 should be removed.104

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BOOK I

CHAPTER I: On Jurisprudence in General

§1. The term jurisprudence involves two concepts, prudence and right [jus].

§2. There is no better way for us to understand prudence than by going over the different faculties [habitus]1 in a little more detail.

§3. A faculty is either infused, that is, one which man possesses without previous knowledge, or acquired, for which labor and effort are necessary.

§4. The acquired is gained either through supernatural or through natural powers.

§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, affirmation and denial, or it is voluntary, if it is based in Edition: current; Page: [62] the will and is acquired through acts of the will, that is, the desire for or aversion to something.2

§6. The intellectual faculty has as its object either principles, which may be theoretical or practical, in which case it is called understanding, or conclusions from these.

§7. In the latter case, concerning conclusions, this faculty is either theoretical and aims to understand the creator and creation, or practical and aims to understand human actions.

§8. The theoretical has as its subject either being as such and is called ontology (nowadays usually metaphysics), or certain species of being.

§9. And this ontology either considers the creator —this is called wisdom [sapientia], and once used to be called metaphysics, but today is termed the first part of pneumatics —or it considers corporeal creatures and is called science.

§10. Science, however, examines corporeal creatures either with respect to their essence and qualities, which is what physics does, or with respect to quantity, which is the subject of mathematics.

§11. We now turn to the practical faculty. Its synonym is prudence, which takes on different names according to the diversity of human activities. If these actions are those of people living in a civil society, it is called political prudence; if they are the actions of those living in domestic society, it is called economic prudence.

§12. Each of the two is concerned with future and past actions. The former is advisory in a broad sense; the latter is judicial in the broadest sense.

§13. Advisory prudence is occupied either with one’s own actions or with those of others.

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§14. And it is occupied with the actions of superiors, or equals, or inferiors.

§15. The last of these is given the special name legislative prudence, which is the noblest part of jurisprudence in a broad sense. The other forms retain the title of advisory prudence, and that part which advises the superior in legislating or acting according to the norm of the divine laws is the other part of jurisprudence in the broad sense.

§16. Moreover, the actions of men, both future and past, are honest, that is , they conform to a law and are predicated of man insofar as he is rational; or they are pleasant, that is, they delight the external senses and concern man considered as an animal; or they are useful, that is, they are directed to the preservation of the individual. In the last case man is considered as a living physical being.

§17. That prudence which is concerned with honest actions in general is jurisprudence in the broad sense, and that which is concerned in particular with the honest actions of others in the past is judicial prudence in the strict sense, or jurisprudence in the strict sense, or the third part of jurisprudence in the broad sense.

§18. But that prudence which has as its object the pleasant or useful actions of men is prudence in the sense of skill [ars].

§19. If man directs these, as he should, toward honest actions, this is good and he remains prudent; if he does not do so, he is said to be astute or cunning.

§20. If he is obviously without prudence in skill, he is termed imprudent.3

§21. The faculty of the will remains. This is acquired by actions that are prescribed by law and in that case is a moral virtue, or by actions prohibited Edition: current; Page: [64] by law, when it is called a moral vice, or, finally, by actions permitted by law, when it is nothing more than skill.

§22. These points had to be presented in a little more detail, because the common doctrine of the Peripatetics on the division of the faculties and the various kinds of intellectual virtues is full of countless mistakes, which anyone who has compared their teachings with what has been said so far will easily detect.

§23. We cannot but point out here a little more fully that according to general opinion the difference between theoretical and practical intellectual faculties is that the latter also have action as their object, but the former have contemplation as their ultimate end.

§24. Now this error is not only contrary to right reason, since all theoretical faculties have practical ends, as can easily be shown empirically. It also conflicts with true religion and is the result of the false opinion of the Gentiles, who believed that the essence of God consisted in contemplation.

§25. Various comments by the great Aristotle, whom they follow, are relevant here: “That beatitude based on contemplation is nobler than that based on practice; that the former is accompanied by a more sincere pleasure than practice; that theoretical contemplation joins humans more closely to God than practice does”; similarly: “That prudence serves wisdom . . .”4

§26. Instead of these trifles we prefer the saying of Paul, the wise Apostle who above all contemplation preferred love that is born from prudence.5

§27. This is all we have to say concerning the term prudence. The term right is understood in several ways. Above all, it is understood either as law or as an attribute of a person.

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§28. Law is defined in one way by Grotius, in another by Aristotle, and in yet another by jurists. The Scholastics, however, labor over this question in ways that are strange and inept at the same time. We define it thus: “A law is a command by a ruler obliging subjects to guide their actions in accordance with this command.”

§29. According to this definition, a law differs from advice and from a pact in various ways. And that is not controversial. You should, however, note the following in particular, because it is not commonly accepted: “A law is always binding, even without a pact; a pact never without a law,” though a law sometimes obliges via a pact. Then the pact is only the occasion for the obligation, just as opening the doors is the occasion for letting light into the room.

§30. The author of a law is always a ruler [imperans]. We would rather use this term than the term superior, as others do. For apart from the superiority associated with rule there are other superiorities, of order, for example, or of dignity, as well as superiority based on beneficence. Here we are not concerned with these.

§31. It follows that God does not act according to a law and that the eternal law is a fiction of the Scholastics.

§32. He on whom the law is imposed is the subject or the person obeying. This presupposes reason, and as brutes lack reason, they are not bound by law.

§33. Thus man remains. Therefore law is commonly termed a norm of human actions. But the action of man in conformity to law is, in one word, called duty.

§34. But there are different kinds of human actions. Some are specific to man, others are common to him and to animals and plants. Therefore, we must determine which ones law can regulate. And here we first need to form a clear idea of man himself and his essence and must rid ourselves of certain prejudices.

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§35. Man is a rational animal. This is how man is commonly defined. Nor does the scala praedicamentalis of substance in the books on logic allow any other definition, even though it neither corresponds to the intention of Aristotle nor is to the taste of Porphyrius, the inventor of this scale.6 But the same definition is subjected to a variety of criticisms by Chrysostomus, Cardano, van Helmont, Antoine le Grand, and others.7 We will retain it but add the necessary explanation.

§36. We do not believe an animal to be a living body with powers of sensation, but a living body endowed with locomotive powers. Indeed, as the most acute philosophers have shown us, animals lack sensation—that is, internal sensation—without which the external senses do not deserve the name of senses, and they are not moved in any other way than clockwork, except that the more subtle particles of air sometimes strike those animal organs which are the seat of the external senses in man and thereby cause internal movements.

§37. I know that this hypothesis will not please those who measure the truth of assertions by their antiquity. Yet, even if I could make no other reply to them, I would at least urge them to tell me, if, as I hope, they do not attribute powers of reasoning to beasts, what the difference is between [on one hand] basic sensation, the imagination and memory, which they attribute to beasts, and [on the other] human reason.

§38. Therefore, just as man has life in common with plants, he has the powers of locomotion in common with beasts. What remains is covered by the term rational. But human reason is nothing other than thought. Edition: current; Page: [67] See Descartes’ wise statement: “Man when he understands something, thinks; when he wills, thinks; when he feels, thinks.”8

§39. It follows automatically that the two functions of our reason that are usually listed, namely, the intellect and the will, need to be supplemented by a third, namely, sensation, which is distinct from locomotion but includes the sensitive appetite.

§40. Sense is commonly divided into internal and external. Vision, hearing, smelling, taste, and touch usually represent the external senses, to which some add sexual lust as a sixth; others add a seventh and eighth to all of these, thirst in the mouth and hunger in the stomach. The internal sensations are reduced to three kinds: basic sensation, imagination, and memory.

§41. All external senses, however many they are, are passions of the body, not actions of the soul. But insofar as there is a simple apprehension of these things, the result is a sense perception which we can accept being described as basic sensation, just as imagination is used to describe the sensation by which man forms ideas for himself from these passions or when he is prompted by them. Finally, memory is the term for the sensation by which man remembers a sense impression, while reminiscence is the term used if this act of remembering takes place by means of ratiocination.

§42. The Peripatetics, however, say and teach that all senses perceive sensible objects, the external senses passively, the internal actively. But just as passive perception is a fiction, so I do not understand how active perception can exist without thought; and so they who teach this must concede that the internal senses are identical to the power of perception of the rational soul, or else they themselves have no idea what they are teaching.

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§43. Furthermore, the sensitive appetite, as it is described in the schools, is nothing other than a will which approves of the object that delights the body. And if this desire is not contrary to the law, it is fine; if not, the will of man is perverted. Yet such a perversion of the will does not mean that it can be treated as part of a sensitive soul that is common to humans and beasts any more than perverted reason can. For in either case man still thinks, even when he reasons perversely and desires perversely.

§44. Intellect and will are left. If we disregard the ancient fables of some intellect acting outside man, intellect is understood either in a broad sense which includes intellective memory, or in a strict sense that is opposed to it. Indeed the intellect of man either apprehends the objects of the external senses directly, by forming a proposition on their nature or goodness from the accidental properties affecting the sense organs and delighting the body, or by forming unclear ideas of objects which it has perceived through the senses previously; or it reasons by meditating further on the truth of these propositions, the goodness of the object and on the ideas of it.

§45. The prior faculty retains the title of intellect, while the other is commonly described as intellective memory. We will call the former the first operation of the intellect, the latter the second, which can, however, be varied in infinite ways depending on whether it does more or less. If you want to call the first operation reason and the second ratiocination, we will not object either.

§46. Thus, we do not need to agonize over the widespread controversy whether there are three, four, or however many operations of the mind, especially as the first operation of the mind that is taught in the schools does not exist, and our division is more useful, about which I will say more soon.

§47. Therefore, among the internal senses the one which is called basic pertains to the first operation of the intellect; imagination and memory pertain to the second.

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§48. It is common to divide the intellect into theoretical and practical. But apart from the fact that this division seems to have been invented once upon a time in order to show the difference between the reason of brutes and that of humans, and that there is the same snake in the grass which we detected above when we were discussing theoretical and practical faculties, I also do not know whether this distinction would be of much use to us, even though we may tolerate it with respect to the object of intellectual activity.

§49. But just as the intellect judges on the nature of things and their relationship to man, so the will determines what is to be done by man. And this decision of the will follows immediately from either the first operation of the intellect or the second. The first of these desires directly; the latter chooses. You could thus describe the former as appetite, the latter as choice or as will in the strict sense.

§50. The first motions in the sensitive appetite, as it is commonly described, concern the simple appetite, while the other motions of the sensitive appetite, as well as the whole rational appetite, pertain to choice by the will.

§51. The ordinary process of reasoning and of the actions of man is therefore as follows. After external objects have affected the external senses, there follows the first operation of the intellect. This is received by the appetite, which either directly commands the locomotive power or passes the matter on to the second operation of the intellect to be considered, and after that chooses and impels the locomotive force, etc. From this it is clear that the axiom “Nothing is in the intellect which was not in the senses” is true without limitations, as is the following: “There is no desire for something that is unknown.”

§52. Since, therefore, man lives, is nourished, grows, moves from one place to another, feels, understands, and wills, it must be determined which human actions are subject to a law. In sum, those that are subject to the decision of man. But these are not the actions usually attributed to the vegetative soul, nor are they the passions of the external senses, the first Edition: current; Page: [70] operation of the intellect, or the first motions of the appetite. The remaining actions, therefore, which are controlled by the decision of man are the passing on of a decision to the second operation of the intellect, in some sense the second operation of the mind itself, and the choice following it, as well as the locomotive powers.

§53. Yet the common statement that “the sensitive appetite is subject to the command of the will” does not hold true for its first motions, just as the common argument that the locomotive power always depends on the decision of man is not true. The exception here is the locomotive force which man uses instinctively to ward off imminent harm to the body, although the locomotive power of brutes also differs from this, since it is devoid of thought!

§54. But just as it is certain that in our intellect and especially in its second operation there is a natural rectitude which, given the requisite attention, will not allow us to be deceived in moral matters, so man’s will in the strict sense is entirely free. It is also a true axiom that the will cannot be coerced, although it always desires what is good in general and often is inclined by a peculiar disposition of character, the temperament of the humors, the nature of the climate and soil, the semen, age, diet, health, occupation, etc., as well as by the shape of the organs of the body, habits, passions, and some diseases, and also by the external actions of others; but he must always be guided by the obligation imposed on him by his superior.

§55. Because of this liberty of the will, actions are imputed to man; that is, man is rightly held to be their author and is required to be answerable for them, and the effects of these actions are attributed to him. Therefore, we like the opinion of the illustrious Rachel very much, that there is one beginning of human actions—namely, choice—not four, as is commonly argued—namely, conscience, volition strictly speaking, deliberation, and choice.9

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§56. Furthermore, just as human actions are called moral in relation to a law, so the judgment on these actions by an intellect imbued with the knowledge of the laws is called conscience. This is either antecedent to human actions or subsequent.

§57. The antecedent conscience judges either correctly according to the law or erroneously. Therefore, another division of the conscience is into right and erroneous.

§58. Right conscience either knows how to demonstrate its judgment from certain and undoubted principles or draws on commonplace arguments. Therefore, right conscience (for erroneous conscience can only be probable) is generally subdivided into right conscience properly speaking (we will call this demonstrative) and probable right conscience.

§59. The Scholastics added the notion of a doubtful conscience, that is, when the judgment of the intellect is undecided and cannot discern whether something is good or bad and so whether it is to be done or omitted. But this is not a form of judgment. It is the suspension of judgment and therefore not a form of conscience.

§60. More relevant here would be the scrupulous conscience, which is close to doubt, [namely] when the judgment of the intellect is accompanied by anxious fear that the thing which somebody considered good might be bad, and vice versa. This belongs more frequently to the erroneous conscience than to the right conscience.

§61. The rules, however, which the learned have formulated as guidance for the states of conscience we have talked about either follow automatically from what has been said above or else they are obscure and doubtful.

§62. Subsequent conscience, insofar as it approves correctly what has been done or condemns wrongdoing, is subdivided into tranquil and restless, or, as we say in German, a good and a bad conscience.

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§63. Opposed to the voluntary actions of man, which are also called spontaneous, are the actions performed against his will. These are so partly because of a deficiency of the understanding, partly because of a defect of the will.

§64. To the understanding are opposed ignorance and error. Either of these defects is vincible or invincible, and it is either efficient or concomitant. All these points are clear from the standard books on ethics.

§65. Opposed to the will are coercion and fear. Fear is described in various ways, depending in part on the person causing it (whether he has the rightful power to instill fear or not) or on the person suffering fear (whether he is a constant man or not).

§66. The above allows us easily to formulate a response to particular questions concerning the imputability and morality of human actions and the degree to which they can be subject to laws. (1) Actions that are committed by one person, as well as operations of other matters of whatever kind and events of whatever kind, cannot be imputed to another person, except insofar as he can and is obliged to influence these or insofar as he has anything to do with them.

§67. He has something to do with the actions of others if he furthers them, commands them, consents to them, gives the persons performing the action a guarantee, or participates in their profit, gives advice, praises, assents, does not forbid, or hinder, or dissuade, and does not make known when he is obliged to do any of these things.

§68. Thus the actions of others can be imputed to these people, although it is imputed to the former primarily, to the latter secondarily. More on that in its proper place.

§69. (2) If it is not in the power of a particular person to determine whether what is in him or is not in him is there or is not there, this cannot be imputed Edition: current; Page: [73] to him, unless he did not apply the obligatory diligence in ridding himself of defects and introducing what is free of defects instead.

§70. (3) He who does not have an occasion to act and is not responsible for it will not be blamed for his failure to act.

§71. (4) Those deeds that are perpetrated as a result of invincible and efficacious ignorance or error are not imputed. But where ignorance or error is only concomitant or vincible the action is imputed. One example is the ignorance of laws that have been properly published.

§72. (5) The error of a third person, be it vincible or invincible, cannot be blamed on another who is not guilty of the error of the third person. In such a case it is more equitable for the erring person to be blamed.

§73. (6) Those actions that are beyond the powers of a person are not imputed, except insofar as he is responsible for the fact that they are impossible actions. Here the rule applies that nobody is bound to perform impossible actions.

§74. (7) Those actions to which a person is coerced are not imputed.

§75. (8) The actions somebody performs under the influence of great fear, such as a promise, are sometimes imputed and sometimes not imputed, whether the action is contrary to the laws or not. This will become clear from the full discussion in the chapter on the duty of man in relation to himself and in the chapter on the duty of man concerning promises.10

§76. (9) The actions of men lacking the use of reason are not imputed to them.

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§77. (10) In a human court it is very rare for actions committed in sleep or in dreams to be imputed.

§78. The author of law is either God or man. The former exercises his command by virtue of his right of creation independently of the consent of man. Man acquires the right to command either immediately through a divine concession or via the consent of another human. From this follows the first division of law into divine and human.

§79. Opposed to laws is their modification when the command itself is abolished either wholly or in part, and dispensation when one or the other of the subjects is exempted from a law which otherwise would pertain to him and from its obligation while the law remains in force for all others.

§80. Therefore, those people are mistaken who confuse dispensation with restrictive interpretation.

§81. Only the person who can pass a law can change it and grant dispensation from it.

§82. Right, understood as an attribute of a person, is an active moral quality conferred by a superior, which enables this person either rightfully to receive something from some other person with whom he or she lives in a society, or to do something.

§83. That is called an active moral quality which extends the liberty of man, even though it is sometimes used to describe a passive physical experience, for example, the right of a beggar to receive alms. It is opposed to a passive moral quality which restricts the liberty of man, which is what an obligation does, even though this restriction often denotes a physical action, for example, the obligation of the rich man to give alms.

§84. In explaining the origin of right the learned are either silent or disagree in strange ways; some argue that nature produces right, others say Edition: current; Page: [75] that it is law; some say it is property, others consent, and others again say that it is one of these two.11

§85. We must first of all distinguish the right of God and that of humans. The former is a right only by analogy and is very different from the right of humans. For God has this from himself through Creation. But the right of humans must ultimately be derived from the will of God, and in general from the will of a superior, which produces a right insofar as it increases liberty and, insofar as it restricts it, is called a law and is the origin of obligation. Consent on both sides is only an occasional and nonessential cause. Nature considered physically is irrelevant here, as is property, which is already a form of right.

§86. Right pertains to a person. A person here denotes a human being considered in his state [status]. A state is a quality which affects man and according to which his right varies.

§87. A person is either simple, that is, a single human individual, although he may participate in several states, or composite and formed by the union of several individuals in a particular state. The latter is called a college, society, university, etc.

§88. Thus, we will not discuss the right of God and of angels because that is not relevant here.

§89. By the word something in the definition of a right I mean a corporeal creature in general, be it human or inferior to man, be it a substance or an accident, something which is traded or which is not traded. Thus, again, neither God nor angels are relevant here.

§90. This right is demanded from another human with whom one lives in a society. For man alone is the immediate and primary object of right.

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§91. A society is a union of several humans for a certain end.

§92. Nevertheless, the term society is understood so broadly that it includes the society between God and humans in an analogical sense.

§93. Society in this broad sense is divided into unequal, which is that between persons who are different in kind and one of whom commands the others; equal, which differs from unequal societies in both respects [i.e., they are between persons of the same kind, none of whom commands the others], and mixed, which exists between persons of the same kind, one of whom commands the others.

§94. The only unequal society is that between God and man. Human societies are either equal or mixed.

§95. Human society is either natural, toward which man is led by divine command or by the concern for the utility of all humans, or conventional, which humans enter into for the sake of a particular benefit.

§96. Since these forms of particular benefit vary in infinite ways, conventional societies, therefore, are infinite in number. Natural societies are divided into simple (that is, conjugal, domestic, and paternal) and composite.

§97. Simple societies are the direct components of the house or the family. Several families compose a village, a district, a city, or a commonwealth. What consists of several villages is called a commonwealth or a province. Finally, a society composed of several commonwealths is a society of nations.

§98. Among the natural societies this last one is the only equal society [in the time] after original sin. Among conventional societies there are several examples of equal and of mixed ones.

§99. These points had to be made because of the various disagreements among the learned. Some of them clearly ignore the first division of society [into equal, unequal, and mixed]; some confuse unequal with mixed Edition: current; Page: [77] societies; some consider divine society to be a form of equal society, while others deny that it is relevant for civil life. Some consider all societies to be unequal; others consider all to be equal. Some ignore the other division of societies [into natural and conventional], while others either reject natural society or do not describe it correctly. And some define the village and the commonwealth differently or say something different about the society of nations.

§100. I return to the definition of right and put forward the following axioms: (1) Outside a society there is no right.

§101. (2) In every society there is right.

§102. (3) In an unequal society right lies only with the superior. In an equal or mixed society right is common to both sides.

§103. The terms to have and to do in the definition of right are related to the division of right into perfect and imperfect, even though others are of a different opinion.

§104. First, right12 is of course divided into perfect, which Grotius calls a faculty, and imperfect, or an aptitude, as he has it. The former is the power by which I can coerce another who does not want to fulfill his obligation to render what is due. The latter is a different matter. Here the fulfillment of the obligation is left to the shame and conscience of the person who has the obligation corresponding to this right.

§105. The means of enforcing a right is called war, if it takes place among those who live in the state of nature. Among those, however, who live in civil society, it is called punishment or legal action.

§106. The point of this division, according to Grotius, is that strict justice corresponds to faculty and attributive justice to aptitude. But just as Edition: current; Page: [78] this great man was wrong in presenting his strict justice as identical to commutative justice and his attributive justice as identical to distributive justice in Aristotle’s sense, so we would feel more comfortable without this Grotian division of justice [into strict and attributive], even though we could tolerate it. For it is not useful to us in any way and does not add anything to our division of right, and we would feel even happier if we could do without the Aristotelian division of justice, which is more suited to torturing minds than to educating them.13

§107. We would rather like to look for the particular usefulness of perfect and imperfect right by asking what violation of a right should lead to a legal action in a civil society and above all by determining by what right the prince may take up arms against someone who is inflicting harm on him.

§108. Therefore, we must briefly explain the signs indicating the two rights [perfect and imperfect], for Grotius does not discuss these. These signs, however, vary according to the different kinds of societies. (1) In an unequal society the only superior, that is, God, has a right over man and this right is perfect.

§109. (2) Among those living in an equal society the right that is part of natural liberty and which gives rise to agreements, and in general every right except that concerning the duties of humanity, is perfect.

§110. (3) In a mixed society the right of the superior over his subjects is always perfect, even with respect to the performance of the duties of humanity.

§111. (4) On the other hand, the right of subjects over superiors as such, even if it is based on pacts, is normally imperfect.

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§112. I said “as such” to avoid the objection that a wife, children, and servants sometimes have the right to legal action against the paterfamilias.

§113. I also said “normally.” In extraordinary cases the prince grants his subjects the right to a legal action against himself, though these are legal actions only in an improper sense. They are certainly not coercive remedies.

§114. Second, with respect to the source from which right is derived it can be divided into connate, which man has immediately from God without the consent of the person who is placed under an obligation (the power of parents, for example), and acquired, which belongs to him on the basis of an agreement with another, such as sovereignty.

§115. Third, a division of right, or rather of faculty in particular, derives from the object. For the object of right is either the actions of others or the things belonging to others—actions insofar as I direct them (which is called authority [imperium]) or insofar as they do not interfere with me.

§116. I say “insofar as they do not interfere with me. ” This refers either to my personal actions and is called liberty, or to the use and disposition of my physical possessions, which is called property.

§117. The things of others are the object of right in that either the thing itself is the principal subject of consideration and the other person the secondary subject or the person is the principal subject of consideration while the thing is the secondary subject. We will call the former a right in a thing, the latter, credit.

§118. The thing is the principal subject of consideration when the person, whoever it is, possesses this particular thing and is under an obligation to me. The person is the principal subject of consideration when a certain individual is required to give me a thing, whether he owns it or not.

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§119. In other cases the terms authority, liberty, etc., are understood in a different sense. For the term authority is also taken in a broad sense and is applied to property. Thus Grotius granted the authority over the sea to a commonwealth. Likewise, we speak of authority over a territory, etc.

§120. Liberty is also understood as a natural ability of humans to do what their physical powers allow them to do, without consideration of other humans. And then it is not a form of right, but sometimes even its opposite.

§121. It will be more appropriate to discuss the various meanings of property, right in a thing, and credit in connection with Roman jurisprudence.

§122. Fourth, the faculty of those living in civil society is either common or eminent. The common faculty is that of the subjects, the eminent that of him who holds power in the commonwealth over the things and persons in that commonwealth.

§123. This distinction can be applied to the above. For liberty is either eminent, which is otherwise described as liberty of the ruler and coincides with sovereignty (unless you wanted to say that liberty concerns the prince himself, sovereignty the relation of the prince to those below him), or it is common liberty, which is also called personal liberty.

§124. Concerning the distinction of authority into eminent and common, I do not think there can be any doubt what kind of power of command the head of a household enjoys.

§125. However, disputes have arisen over eminent property rights. We do not see a sufficient reason for abandoning the division of property rights into eminent and common.

§126. It is the same with the right over a thing and credit.

§127. The usefulness of this distinction is evident from the following rule: “whenever common right conflicts with eminent right, the former must Edition: current; Page: [81] invariably give way to the latter.” This is clear from what has been said about perfect and imperfect right, and can easily be demonstrated by inductive argument from examples of liberty, authority, etc.

§128. We should finally [fifth] add that division according to which right is either natural or that of nations or civil. But in truth this is the same as the division of right into connate and acquired, apart from the fact that it has three elements.

§129. For the right that takes its origin immediately from the will of God is usually called natural right [ius naturalis]. That which is produced by an agreement between different nations is called the right of nations [ius gentium]. Finally, what is derived from the will of a human sovereign is termed civil right [ius civilis].

§130. Accordingly, liberty belongs to natural right. Property, contract, and servitude are matters of the right of nations. Legally binding promises and in some sense the power of the head of household are said to belong to civil right.

§131. Yet we must beware of confusing these meanings of the term right with the division of law [lex] into natural law, the law of nations, and civil law, especially as this confusion is not uncommon among jurists and moral philosophers.

§132. This observation is of use in many questions, as will be shown in its proper place. The particular reason for avoiding the confusion [between right and law] is that the right of humans, insofar as it is a faculty, can be changed completely by a superior, even if it is a natural right or part of the right of nations. We will explain below that the opposite is true of natural law and the law of nations.

§133. Related to this observation is the well-known rule that “everybody can renounce his right,” though I believe that this must be qualified as follows: “unless this right is a necessary means of fulfilling an obligation.”

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§134. The correlate of right is obligation. Obligation is a passive moral quality, imposed on a person by law and restricting his liberty by forcing him to give something to or do something for another person with whom he lives in a society.

§135. This definition can be explained largely with the comments we have made about right. Yet it has to be noted that the restriction of liberty, which is the essence of an obligation, is nothing other than an act of reasoning that is based on knowledge of a law prescribed by a superior and informs a person of the anger of this superior and the punishment that will follow if the law is broken.

§136. This makes it clear that there can be no obligation without a superior, and least of all one without God. Whence again it follows that obligation does not properly speaking have its origin in agreements.

§137. Giving and acting differ as follows. To give is to transfer property. Acting comprehends all other actions and the failure to perform an action.

§138. There are as many types of obligation as there are types of right.

§139. For in correlates, what applies to one also applies to the other. Thus it follows necessarily that all obligation toward a human being is mutable, be it a natural obligation, an obligation of nations, or a civil obligation.

§140. Obligation is changed in some cases by the will of a superior, if he abolishes the right of the person to whom the obligation is owed, and in some cases by this person’s spontaneous renunciation of his right.

§141. Beware, however, of confusing a law that imposes an obligation with the obligation which is the result of the law. For even if the latter is mutable, the law can still be immutable.

§142. Grotius adds a third meaning of right to the two we have mentioned so far. He argues that it is also applied to the attributes of an action. But Edition: current; Page: [83] this meaning pertains more to what is right in a particular case than to the concept of right.

§143. An action, however, is right [actio justa] in general if it is either commanded by a law or is permitted; and it is permitted either because a person has a right to it or because there is no punishment for it.

§144. For a just or honest action is, to use Grotius’s expression, just in the positive sense if it is commanded by the laws, or permitted, that is, just in the negative sense, when it is not prohibited by the laws.

§145. A permitted action is either perfectly, fully, ethically, and internally permitted when it is based on a faculty pertaining to a person, or imperfectly, not fully, politically, and externally permitted when it is contrary to law, but not punished in a human court.

§146. These just actions can be compared with each other with respect to the law: an honest action is one that is according to law; an action that is tolerated, but not fully permitted, is contrary to law; and a fully permitted action is not contrary to law. Or they can be compared with respect to the legislator. No action is incompletely permitted to God, though this can be the case with regard to the prince.

§147. This meaning of a just action is compatible with the preceding two meanings of the term right because it comprehends each of these two [that is, law and the faculty of a person] within itself. It differs, however, insofar as the term right there is discussed in an abstract sense and directly, while here [i.e., in the case of a just action] it concerns a specific case or is discussed indirectly; it also differs insofar as the meaning of a just action is less strict and includes an action that is tolerated, which pertains neither to a law nor to a faculty.

§148. But just as the term a just action is taken in a threefold sense, so the expression “an honest action” is sometimes predicated of an action that is fully permitted, so that the term a permitted action is often extended to an honest action.

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§149. And although the terms permitted and authorized are almost synonymous, the scope of permission is wider than that of authorization. Permission is either a matter of fact, which only indicates the removal of an impediment but has no effect on the rightfulness and does not lead to an authorization; or it is a matter of right, which guarantees a secure conscience, or at least freedom from punishment. It is then either a full or an imperfect authorization.

§150. The opposite of a just action, the unjust action, can be taken in a broad sense to describe everything that is contrary to law. It then includes any action that is not fully permitted. Or it is taken in a strict sense and is distinguished from this action, which is then said to be dishonest, despicable, and not permitted, though the terms “dishonest” and “not permitted” are subject to the same ambiguities we have pointed out in our discussion of honest and permitted actions.

§151. An unjust action is also described as an injury, but an action tends to be described as unjust with reference to the legislator and as an injury with reference to the victim. This is the origin of the rule that “a person does not suffer an injury if he agrees to it.” And an action can be unjust even if there is no injury.

§152. In other cases the term injury is either understood very broadly as anything that is not done rightfully, even by those who have no intention of harming, or broadly as the denial of any right, either perfect or imperfect, or it is understood strictly as the denial of a perfect right, or very strictly as a personal insult.

§153. Finally, not only the action but also the human being is called just and unjust. An action is called just or unjust depending on whether the external actions of a person conform to law. A person, however, is characterized as just or unjust depending on the intentions behind his actions.

§154. Which of these many meanings of right is relevant to jurisprudence? All of them, in some sense. Jurisprudence not only instructs us how laws are to be passed, explained, and applied, but also explains the nature of the Edition: current; Page: [85] faculty belonging to any particular person by right and provides means of protecting and preserving it. It also gives advice on how actions are to be undertaken according to law so that they turn out just, and it judges those that have been undertaken to determine whether they are just or not. And it does all this with the intention that men may become just.

§155. At the same time it is evident from what has been said that the principal object of jurisprudence is the laws and that the other meanings are applicable only secondarily and with reference to the laws.

§156. Thus jurisprudence in its widest sense is nothing other than an understanding of the laws.

§157. When laws are to be passed, or actions to be initiated according to them, jurisprudence is described as legislative or advisory. But when laws are to be applied to past actions, it is called judicial. Giving advice on actions which are to be directed according to laws and judging on actions that happened in the past presuppose the interpretation and understanding of laws.

§158. Legislative jurisprudence is not relevant to our purpose. Advisory jurisprudence bears some relation to our aim, but we will mainly discuss judicial jurisprudence since this also presupposes the advisory variety.

§159. Judicial jurisprudence, therefore, is the prudence required in explaining laws concerning the well-being of man in this life and applying them to the actions of humans.

§160. This definition is clear from the above, but you must note that jurisprudence, which is an intellectual faculty [habitus], must not be confused with the actual explanation and application of laws. If these actions are based on prudence, they are classified as habits of the will and are to be considered partly skills and partly moral virtues. They may even be considered a vice when they are used to harm other people.

§161. There are, therefore, two parts of judicial jurisprudence: the interpretation of laws, which you could for the sake of distinguishing it term the Edition: current; Page: [86] jurisprudence of professors and doctors of law; and the application of laws, which is the jurisprudence of advocates and judges. Here we are referring to both, but in these Institutes we are concerned primarily with the former. The latter we will examine when discussing the resolution of controversies that are taken from ancient and modern history.

§162. There will, however, undoubtedly be as many kinds of jurisprudence as there are kinds of law. Therefore, we will be correct in dividing jurisprudence into divine and human. The former tells us how to explain and apply divine laws, the latter how to do so with human laws.

§163. To avoid meddling in holy theology, we added a limitation to the definition of jurisprudence, saying that it pertained to the laws concerning the temporal well-being of man. We need to expand on this in a little more detail.

§164. I am assuming that our academies at present are usually divided into four faculties, that is, theology, law, medicine, and philosophy, though a fifth or even sixth faculty has been added to this in some places.

§165. I assume, moreover, that philosophy, which now constitutes a separate faculty, is understood in a far narrower sense than it once was among the Greeks and Romans. There it was indeed the knowledge of divine and human affairs, that is, the contemplation of all those things which could be derived from sound reason, which meant that it embraced medicine, jurisprudence, and a large part of pagan theology.

§166. The point of this observation is mainly that we should not confuse the properties of ancient philosophy, which acted as the queen, with present-day philosophy, which is left with nothing but the function of an honest servant. See, for example, that well-known phrase of Plato that commonwealths will be happy when philosophers rule or rulers philosophize, etc.14

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§167. Thus it seems most appropriate to explain the distinctions between these four faculties as follows. The faculties are either subordinate [instrumentales], that is, philosophy, or principal [principales], that is, the remaining three.

§168. The principal faculties either have as their object the body of man and aim for its health, which is what medicine does, or they strive to care for the human soul and its happiness.

§169. That is, its temporal happiness, which is the object of jurisprudence, and its eternal happiness, which is that of theology.

§170. Yet, the main means of obtaining human happiness, as the philosophers generally admit, are laws. It is, therefore, obvious that the explanation of laws, depending on the kind of happiness which they serve, pertains sometimes to the jurist, sometimes to the theologian. This will be discussed more clearly in the following chapter.

§171. From this follow the order and the ranking of the four faculties, as this has been accepted among us and defended in published writings. Hence it will be easy to respond to those who want to start a controversy with jurisprudence on that account.

§172. Those who are competent at jurisprudence are called jurisprudents or jurisconsults. Whether there is a difference between them and the jurisperiti15 is the subject of acrimonious debate,16 but that debate does not seem important enough to detain us.

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CHAPTER II: On Divine Jurisprudence

§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.

§2. All of this is obvious, as long as we explain which divine laws have the temporal well-being of man as their object. But that will be clear from the division of divine law.

§3. It is generally taught that divine law is moral or ceremonial or forensic. We have said elsewhere why we are dissatisfied with this division.17

§4. We say that divine law is either natural or positive. The others say so, too, but in doing so they mean something different.

§5. The paramount question here is, in what respects are these two kinds of divine law similar and in what are they different? The following points will elucidate our opinion.

§6. (1) Divine positive law agrees with natural in that God is the author of each of the two, or, if we want to be more precise and speak of God in human terms, the divine will is its author.

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§7. We do not accept the argument that natural law took its origin from the sanctity of God antecedently to his will while positive law did not. For everything that is in God exists there simultaneously.

§8. Man is not permitted to form a conception of God since such a conception involves imperfection.

§9. Thus we cannot speculate about God, mainly because of our imperfection, and it is therefore impossible to consider our ideas of God to be true or to acknowledge them as a foundation on which conclusions in a factual discipline, such as jurisprudence, should rest.

§10. (2) Natural law and divine positive law converge with respect to the condition of man to which they apply. For each binds man in the state of innocence and after the fall.

§11. For the first division of the state of humans is that between man in the state of innocence and man after original sin. It will not be fruitless to examine each of the two a little more carefully because the usefulness of this meditation will soon become apparent.

§12. We will begin, however, with the state of innocence since it is prior in terms of chronological order and more excellent, if we are allowed to do so. For we need to beware of meddling in theology. We explain jurisprudence as a faculty [habitus] that is to be acquired by our natural powers, as we have said above. Whatever we know about the state of innocence, however, we know from Sacred Scripture.

§13. Therefore, we either have to stop here or we must see how we can extricate ourselves from this difficulty. What if we said that this state of perfection was known to pagans, too? Indeed, there are countless testimonies of Greek and Latin philosophers and poets to this effect.

§14. Yet I fear that this will not be enough. Pagans knew of the state of innocence but only had a very confused notion of it. They knew about Edition: current; Page: [90] it, not from the dictate of reason, however, but from their contacts with the Jews.

§15. Therefore, we need to try another approach. Perhaps we Christians are privileged over the pagans. They were not allowed to interfere in theology because they only taught jurisprudence. But we go further, for what we teach is Christian jurisprudence.

§16. But here again the theologians guarding the borders of their discipline will tell us to retreat and not to climb over the fence that separates our discipline from theology. The term Christian jurisprudence will be suspect to them, because if by this we mean a discipline that borrows its principles of proof from theology, it will be vain for us to try to cover up our trespassing with a few slogans, especially as far as natural jurisprudence is concerned. But if we restrict our proofs to theological matters, our Christian jurisprudence will not deserve its name any more than, for example, arithmetic is a Christian arithmetic because its principles allow us to calculate how many measures of wine filled the vessels at Canaan.18

§17. Therefore, we halt, especially as we know a way of avoiding this problem. For just as arithmetic, for example, does not encroach on theology, even though it applies its own principles to examples from sacred history, so we will not sin if we apply our principles to the state of innocence. It is one thing to borrow principles of demonstration from another discipline, another to apply these principles to an object taken from another discipline.

§18. And this is especially true of history, which, whether it is sacred or profane, is used by all four faculties.

§19. Thus, it is permitted to talk about man’s state of innocence, but only on the basis of sacred history, for the traditions of the pagans or the rabbis in that respect are mere trifles.

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§20. This state of innocence was perfect since in it man was created in the image of God. Therefore, the miseries which accompany the corrupt state today were absent.

§21. The human body was certainly endowed with the same members as a healthy person is today, and there was the same distinction of the sexes. And the members of the body would have been directed by the soul, immediately from creation in the case of Adam and immediately from birth in his children. We are not really concerned about the size of humans in the state of innocence since that adds nothing directly to human perfection.

§22. Moreover, man would never have died or fallen ill. He would always have enjoyed the most wholesome food and drink. Digestion would have been excellent. Poison would not have harmed. Whether man would have eaten meat in that state is an idle rather than a useful question. I believe he could have but cannot imagine that he would have wanted to.

§23. The sense organs were, as far as we can imagine, perfect and completely reliable. There would have been the pleasures of the senses, but subject to laws. Thus, there would have been the pleasure derived from touch in that it can be based on physical causes and anatomical principles, but not the kind of pleasure that causes man to lose self-control and is called lust. Humans would have enjoyed powers of locomotion immediately from birth, and these would not have been disturbed or impeded [by illness].

§24. Concerning his intellect, man would not only have been so perceptive in natural matters that he would have recognized at first sight the natures, qualities, and forms of created beings, which today are concealed from us or are barely perceived even after the most laborious research. In moral matters, too, man would have possessed supreme prudence in understanding law and its significance for his actions. Thus we must criticize the belief, defended by Grotius and others,19 that the Protoplasts were Edition: current; Page: [92] simple-minded and ignorant of vices rather than being endowed with the knowledge of virtue. This belief would also be an insult to God.

§25. And I do not see any reason why I should think differently about infants. They would indeed have been able from birth to reason with their parents on any subject whatsoever and would only have required a very brief period of time to be informed of the meaning of words which had their meaning from the imposition of man, not from the nature of the thing itself.

§26. The will enjoyed a great degree of liberty. Man could choose between sinning and not sinning but was more inclined to not sinning.

§27. Moreover, man in the state of innocence was not for one moment outside a society, but was joined immediately in a society with God, which was unequal but in which there was greater love and trust than can today exist in any paternal society.

§28. Man, however, by his nature desired something similar to himself, but did not find this similarity in God, because divine perfection was too distant from him, and thus it was not good that he was alone. Therefore God, in his supreme benignity, created a female companion for Adam, that is, Eve, whom he created from his rib (which yet was not superfluous in Adam, and its removal did not mutilate his body) and gave to Adam in matrimony.

§29. This society in the state of innocence was supremely equal, for only after the fall the power to command was transferred by God to the husband in order to punish the wife, and before the fall the common cause of subjection, imperfection, could not be attributed to Eve.

§30. The Apostle teaches that it does not befit wives to rule over their husbands, and he uses the argument that Adam was created earlier than Eve.20 But one cannot infer from this that in the state of innocence Adam commanded Eve because Eve could not command Adam.

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§31. The argument put forward by others, that the husband is superior to the wife in dignity and power because God intended to create the wife to complement the husband and not vice versa, establishes a priority of order but not a superiority of dignity or power, as can easily be shown with the example of a society of merchants.

§32. Such was the society of the state of innocence; would it have continued to exist if man had not lost his integrity? Some have thought so and denied that paternal society would have existed in the state of innocence. This has recently been argued among the English by Thomas Hobbes, who made bad use of his intellect, and among the Dutch by that horrible author Adriaan Beverland.21

§33. We not only defeat those authors with the words of the divine benediction: “go forth and multiply,” but rout them by pointing out the shape of the human body and the members destined for procreation.

§34. We believe, however, that this society too would have been equal, but would have differed from conjugal society in that children would have had to show reverence toward their parents not so much because of a priority of order, but because they received the benefit of procreation from them.

§35. For the debt of reverence does not presuppose the imperfection implied by subjection, and the cause of paternal rule, as will be shown in its appropriate place, would have been absent in the state of innocence.

§36. But the domestic society of masters and servants [servi] would certainly have been absent from the state of innocence. For the economic need, which introduced this society both on the part of the master and the slave, would not have existed in the state of innocence, not to mention the division of property.

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§37. And would there have been a commonwealth? That will become clear if we consider the structure of the commonwealth. It consists of the power to command, which is directed to preserving public peace and the sufficiency of all things. We have already shown that there was no political power in the state of innocence. And power would not have been necessary to obtain either peace (since there would have been no fear) or sufficiency (since there would have been no lack of anything).

§38. But they who argued for the existence of a commonwealth in the state of innocence confessed almost unanimously that they did not mean a society with power in the proper sense. Thus, some distinguished between directive power and coercive power. But by doing so they admitted that there was no power [in the state of innocence], because a directive power is like a cold fire.22

§39. Then follows the state of fallen man. Here many things were altered. The organs of the body required some time before they were able to exercise their powers of locomotion and to be guided by the soul. Death enters the world; various diseases precede and further it; digestion is often poor; man must beware of poison; food must be prepared with various artifices so that it does not inflict harm; the sense organs of humans frequently deceive; the intellect has become much less acute. In infants it is like a clean slate, suitable to receiving any impressions whatsoever. The will of man has lost much of its liberty and is inclined almost wholly to evil, because the passions very frequently rise up and make man lose control of himself and in any case are perpetually straining at the leash.

§40. We believe that these changes in man have been so great that it is absolutely impossible for man to correct these imperfections in the present life by natural means.

§41. If he could do so, it would be in his power to rid himself of original sin or to evade divine punishment. Either of these, however, is absurd.

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§42. Insofar as the intellect is concerned, however, perfection did remain to the extent that man could recognize the common rules and precepts, above all those of the law of nature that are relevant to the will, which was inclined toward evil, but in such a way that it retained at least the liberty of constraining external actions effectively.

§43. Moreover, if we look at the changes with respect to societies, in divine society today there is no longer the face-to-face conversation with God, nor is God only loved as a benign father; he is also feared as a just judge. Conjugal society has been turned from an equal into a mixed society, as a punishment for original sin. The power to command was introduced into paternal society for the sake of education. The curse on the soil and the resulting division of property produced the society of masters and servants, and the fear of external violence led to the foundation of cities and commonwealths.

§44. The state of innocence is also called the state of right nature [natura recta], and the state after the fall from grace that of corrupt nature. Yet we must note that here by corruption we do not mean moral corruption with respect to external actions, since that description pertains either to the physical corruption of man or, at least, to the moral corruption of the internal actions that strongly incline to sin against the laws.

§45. Thus the postlapsarian state is still right to some extent, and the sinful external actions in that state do not reflect the defects of the state but of the humans living in it.

§46. Hence, you should also note the following ambiguity: corruption is opposed either to the state of innocence or to the postlapsarian state, to the extent that this latter state is still uncorrupt; in that case it refers for example to the condition of thieves, etc.

§47. There are many more different meanings concealed in the term natural state. We know of the distinction between the natural and the legal states of man, which is explained in different ways by different authors Edition: current; Page: [96] but is usually interpreted to mean that the natural state was that of man flourishing in the state of innocence; the legal state, however, that of corrupt nature. And this distinction is commonly applied not only to individual humans, but also to human societies, above all to civil society. And apart from that its use in solving several political controversies is often emphasized.

§48. We have done so, too, in another place.23 But now we have changed our opinion, in part because the natural state [in this sense] presupposes the existence of a civil society in the state of innocence, and we have just demonstrated the opposite; in part because those [political] controversies can be solved, if not better, then equally well, if we direct our attention exclusively to the legal state.

§49. Almost any beginner will know how much political theorists have criticized the natural state of Hobbes, which he insisted to be a war of all against all, and how much he opposed the social state to this. Pufendorf’s comments in various places against this state of war deserve to be read here.

§50. The state of man after the fall from grace can be described as natural in many respects. This will be clear from the following distinctions. The natural state initially describes a condition common to all humans that distinguishes them from the beasts also after the fall from grace, namely, that they are able to reason and to acknowledge a supreme legislator and direct their external actions according to his precepts. This state is opposed to the life and condition of beasts or to the life of humans abusing this state and following the dictates of their corrupt reason in every way.

§51. This natural state can, second, be subdivided conveniently into a natural state and a social state, the former understood as the condition of humans that would obtain if man, after the fall, from birth had been Edition: current; Page: [97] left to his own devices and not enjoyed the help of other humans; and the latter, the social state, understood as the condition of humans living a life that is improved by the efforts of others.

§52. And this natural state and social state are not to be confused with the natural state and the social state of Hobbes. Even though we may be using the same terms, the substance is very different. For in his theory of the natural state Hobbes considers man to be in opposition to other humans, and he wants this to be a state of war of all against all, none of which fits with our natural state.

§53. The social state is, third, either natural, that is, the condition of humans living in an equal society who do not have a common lord and in which no one is subject to another, or civil, which is the state of those who live in a civil society and in the other minor societies comprehended within a civil society.

§54. The natural state in this sense must not be confused with that of Hobbes. Hobbes’s state is one of war and opposed to the social; ours is peaceful and social.

§55. And, fourth and finally, the civil state is either natural, that is, a condition which man has by nature and without any human action (for example, being a man, being an infant, etc.) or it is adventitious, that is, a condition which man has as a result of human imposition (for example, being a consul, a nobleman, a peasant, etc.).

§56. Yet we believe that it is justified to apply the term natural state to all these meanings. In the first meaning the term is based on the essence of man, in the second on the misery accompanying the nature of postlapsarian man, insofar as he is left to himself; in the third it rests on the natural liberty and equality of humans, and in the fourth on the properties, mainly the physical properties, which man has by nature.

§57. Yet if someone wanted to call the first type of a state of nature the state of humanity, that of the second the condition of solitary life, and that Edition: current; Page: [98] of the third the state of equality, we will accept that, since we do not want to argue over words.

§58. These four natural states can be compared with each other with respect to their actual existence. The first exists or at least should exist in all humans. The second is not common, but it can exist, for example, if a single man is cast ashore on an uninhabited island after surviving a shipwreck; and it exists, for example, in the case of infants exposed by parents. The third is very common, for example, among nations in their mutual relations. About the existence of the fourth, however, there can be no doubt.

§59. Thus, those people err who believe that the state of nature of the second kind is a fictitious state or that the misery which we said accompanies that state is fictitious.

§60. But we had a reason for presenting this fourfold meaning of the natural state. The first will be useful in deriving the duties of man toward God, the second in demonstrating the need for a society, the third in comparing diverse precepts of natural law with each other and elsewhere. The fourth belongs to jurisprudence, especially human jurisprudence.

§61. We now return to the argument. We have said that in either state of man, that of innocence and that after original sin, both forms of divine law, natural and positive, had a place. Concerning natural law, perhaps, there is no doubt. Positive, revealed law in the state of innocence was that which prohibited eating from the forbidden tree, as well as the prohibition of polygamy and divorce when marriage was originally established. In the state after the fall from grace there are various positive laws, about which more will be said later.

§62. We are, however, trying to explain the divine laws to the extent that they are relevant to jurisprudence. I therefore believe it is evident that we are primarily concerned with those laws which govern the postlapsarian state. For jurisprudence must explain the laws which are to be applied to Edition: current; Page: [99] human actions subsequently [to the state of innocence]. We are not, I believe, judging our first ancestors [that is, Adam and Eve], we are not their lawyers, and we are not concerned with their actions, but with humans of this age who retain only remnants of the original felicity. If only they can preserve these, that is enough for tranquillity in this life.

§63. Now let us see the differences between these two laws. Usually authors look for the difference in the fact that natural law binds all humans, while positive law binds only the Jewish people. But it will be clear from the following that this is not sufficient.

§64. (1) For a start natural law and divine positive law differ in their principles of knowledge: in natural law this is right reason; in divine positive law it is divine revelation.

§65. The proof of this difference is derived from the second difference. The Apostle Paul recognized this difference exactly, and this is clear in part when he said that those nations that did not have the positive law did by nature what was according to natural law, and in part because he declared that he would not have known from reason alone that concupiscence is a sin, unless the divine positive law had said, “Thou shalt not covet.”24

§66. By right reason I here mean a natural faculty of reasoning or deriving true conclusions from true first principles. But as is obvious to anyone, man has this faculty from birth as a potential. This is suitable for exercising his powers if, with the input from the senses, the ideas have first been formed by the intellect and the same potential has later been exercised in human society.

§67. Therefore, we cannot but laugh at the excessively subtle meditations of the Scholastics, who teach that infants have certain practical principles by nature that have the form of a kind of innate faculty, and these tell them what is to be done or omitted according to the law of nature.

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§68. Each practical principle is a proposition. Every proposition indicates whether a predicate does or does not conform to the subject. Yet infants are destitute of the knowledge of terms, especially moral terms, since even adult, erudite humans barely agree on their meaning. Who would, therefore, believe that infants, for example, know that murder is to be shunned and that agreements are to be kept, since they do not know what an agreement is, what murder is, etc.

§69. The Scholastics themselves are unsure whether this innate faculty is only a potential in infants or is already present in them. Some have reached the point of saying that this faculty is neither of the two, but is somewhere between being actually and potentially present. Thus, we have a particularly felicitous solution whereby something is put forward which can both be and not be at the same time.

§70. Even if positive law is derived from divine revelation, it is not permissible to argue as follows: This act, which is commanded or prohibited in Scripture, is recognized as honest or despicable by pagans, too. Therefore, it is part of natural law. For these pagans are either Greeks or Romans. The Romans took their laws from the Greeks. The philosophers of the Greeks borrowed much from Moses. Solon similarly introduced many laws from Egypt to Athens. The Egyptians, however, took the rudiments of their laws from the Hebrews.

§71. (2) These laws differ in that natural law is concerned with actions that either conform necessarily to the common rational nature of man or are contrary to it; positive law is concerned with actions that are neither.

§72. For since it is apparent from natural reason that God wanted man to be rational and also for his actions to be subject to a particular kind of norm, it follows necessarily—to avoid contradiction—that God wanted to command the actions which necessarily further the rational nature of man and to forbid those which are contrary to it. But since there are many actions by which, when they are committed or omitted, the essence Edition: current; Page: [101] of man is neither violated nor furthered as such, man will not be able to know how these are regulated. Here the promulgation of a whole other law is required.

§73. I speak of a necessary conformity of an action with reason whenever the omission of an action by humankind would necessarily cause it to perish, and of repugnance to reason whenever humanity would perish as a result of this action being committed.

§74. This difference is interpreted differently by the Scholastics and indeed in various ways. For sometimes they say that what pertains to natural law is actions that are in themselves and by their nature, even antecedently to the divine will, honest or despicable, while indifferent actions pertain to positive law.

§75. Sometimes they say that obligation in natural law flows from the object to the precept; in positive law, however, from the precept to the object.

§76. Yet none of these definitions are that good. You could say that actions determined by natural law are honest or despicable as such [per se] with regard to their immutability. But they apply this expression “as such” to imply that this is antecedent to the act of commanding natural law.

§77. However, they contradict themselves when they say that certain acts are by their nature honest or despicable. In a human action you can consider either its nature or its morality in relation to a law: its nature insofar as it is abstracted from moral circumstances, and morality insofar as the moral circumstances are examined.

§78. Moral circumstances are covered in the common phrase who, what, where, etc.25

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§79. But beware of thinking that, where one or another of these circumstances is present, there is immediately a moral circumstance.

§80. For otherwise you would have the absurd consequence that no action could be considered as a natural phenomenon, since every action certainly involves one of these circumstances.

§81. Thus these circumstances are called moral insofar as a law commands or prohibits a particular action because of these.

§82. And so he who calls certain actions honest or despicable by their very nature says that certain actions are by their nature moral. But he who says so does in fact declare that certain actions, if abstracted from their moral circumstances, by virtue of this abstraction involve moral circumstances.

§83. Further, an honest action is one which is commanded by a law, a despicable action one which is prohibited by a law. A law, however, is the will of the legislator, and the source of all laws is the divine will.

§84. So they who want certain actions to be honest or despicable antecedently to the divine will also want certain actions to be commanded or prohibited by a law that is prior to law.

§85. I know indeed that a distinction is made between honest actions considered materially and formally; they claim that laws are defined materially by us, but that those actions are honest or despicable formally which conform to the dictate of right reason.

§86. Yet I also know that the distinction between material and formal, when applied to moral affairs, is either obscure or superfluous, and in most cases unsuitable. I know that in this respect good in the sense of useful is confused with good in the sense of honest. I know that they define law as a dictate of reason and stick to that error. I know finally that the Edition: current; Page: [103] Apostle who defined sin as the transgression of the law knew very well the formal characteristics of a despicable action.26

§87. Finally, how, without contradiction, could obligation diffuse itself from the object to the precept, since the efficacy of every obligation depends on reverence and fear of the legislator?

§88. Thus, are not all actions by their nature indifferent? They are indeed; that is, all physical actions abstracted from their moral circumstances are neither commanded nor prohibited.

§89. Yet you will say that blasphemy and theft, for example, by their nature are not indifferent. I say, however, that these are not terms for action considered with respect to their nature. For blasphemy involves a concept of deliberate choice, that somebody utters certain words expressing disrespect for God. Theft involves the concept of fraudulent removal. And because of these circumstances blasphemy and theft are already prohibited by an eternal law.

§90. If you abstract from these circumstances these actions will no longer be despicable. They will not even be blasphemy or theft. The physical action in blasphemy is the uttering of words which are blasphemous. A witness, for example, when he repeats these words in giving evidence, does not commit blasphemy. In theft physical action is seizing something that belongs to someone else, etc.

§91. Thus, in order to explain briefly what I mean: the Scholastics confuse the natural aspect of an action, that is, an action considered physically, with the moral nature of an action, that is, an action considered morally.

§92. But perhaps we are contradicting ourselves by refuting others. Is it not the same whether you say that the object of natural law is an action which Edition: current; Page: [104] is honest or despicable antecedently to the divine will, or you say that there are actions which have a necessary connection with or are repugnant to the rational nature of man? For if we declare that God commanded or prohibited these actions because of such a conformity or repugnance, do we not by that very fact concede that these actions are honest or despicable prior to the divine will? Do we not admit that obligation flows from the object to the precept?

§93. There is, however, no danger of that. It can indeed be inferred from our assertion that those actions that are the object of natural law are by their nature good or bad.27 Yet it cannot be inferred that they are honest or despicable. These actions harm or promote the utility of humankind, even if you abstract from the divine will, but as long as you remain with that abstraction, they are not commanded or prohibited by law, and they do not obligate humanity to anything.

§94. Thus it is certain that particular medicines are very useful for ill people, and some foods on the other hand are highly harmful to them. Yet these medicines or foods do not obligate the sick person to do anything, if you abstract from the will of the legislator. Remove the legislator and it will be true without exception that every person is the sole guardian of his own utility.

§95. Ah, you will cry, I have caught you! When fools avoid one vice they fall into another. According to your opinion, therefore, utility itself is the mother of justice and equity; nor does nature know just from unjust.28 And this is what Carneades declared, what the herd of Epicurean swine has taught, and Hobbes, the Epicurean, has largely warmed up and reheated. Thus there is no natural law or justice, or if there is any, it will be supreme foolishness, because by taking care of the well-being of others, one’s own utility will suffer. If this is not introducing the poison of atheism by deceit, what is?

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§96. Yet I cannot imagine anyone would be so impudent as to accuse us of such a belief when we have tried so strenuously to prove the existence of this very law and of natural justice and its differences from other laws. This is so especially since the utility of individual humans, which the above-mentioned philosophers turn into the origin of universal law, is quite different from the utility of all of humanity. Thus, just as public utility is the proper norm of private utility in a commonwealth, so too is common utility the norm of particular utility in the society of humanity as a whole. To put it briefly: not everything that is useful is honest, but everything that is honest is also useful.

§97. Thus natural law is divine law inscribed on the hearts of all men, obliging them to do what necessarily conforms to the rational nature of man and to omit that which is contrary to it.

§98. We will inquire in more detail into this conformity with the rational nature of man in the following sections,29 but the main feature of natural law, its immutability and the impossibility of dispensation, follows automatically from our definition, because the rationality of man is indeed immutable and does not allow for dispensation.

§99. There are various well-known objections, especially with regard to dispensation. One example concerns the removal of the Egyptians’ silver vessels commanded to the Israelites by God, the killing of Isaac, the lie of the Egyptian midwives, etc.30 Jurists have come up with an almost infinite variety of distinctions, which are all unnecessary, since clearly no dispensation took place there: these acts were commanded or recommended by God and thus were not theft, homicide, or lying, as prohibited by natural law. And so those who disagree with us confuse the change of the subject matter with a change in the law.

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§100. Yet you might argue that the very fact that these actions are not theft, homicide, etc., means God gave dispensation from the law of nature, since dispensation is a declaration by the superior that a law does not apply to a particular action. I would then respond that this confuses restrictive interpretation with dispensation, which is precisely what we warned against.

§101. Natural law can be divided quite conveniently with respect to natural human societies. Some precepts of natural law concern the common society of all humans, living among themselves in a state of nature, or, as we have said above, in a state of equality. Now that commonwealths have been introduced this is called the society of nations; others direct the duties of humans living in a commonwealth and in societies that form part of a commonwealth, such as households.

§102. The former is usually called the law of nations. You could, therefore, call the former natural law in the strict sense, for the sake of distinguishing it from the latter.

§103. Elsewhere the term law of nations is understood in different ways, either (1) as an attribute of a person or a faculty, which nations exercise with the permission of nature; (2) as the moral customs of several nations, when they tend to make use of their right unanimously and in the same manner (in this sense, possessions, wars, servitudes, commercial ties, etc., are said to be matters of the law of nations); (3) as a law, and in fact as natural law in general, because this does obligate all nations; (4) as the civil law of many nations (here private persons’ means of acquisition, which are said to be of the law of nations, are relevant); or (5) as the law of nations in the proper sense, which describes the duties of nations qua nations toward each other.

§104. It will, however, be quite apparent that in the controversy whether the law of nations is a species of divine law or of human law, it is necessary to pay attention to the ultimate meaning. If we take this into account we can easily respond to those people who join Grotius in turning the law of nations into a form of conventional and human law. For they are talking Edition: current; Page: [107] either of the moral customs of nations or of right understood as the attribute of a person.

§105. In sum: The nations are equal among each other, and they do not acknowledge a superior among men. Therefore they cannot be under an obligation from human law.

§106. But, you say, they are bound by a lawful agreement; that is, they are bound by their own will. I repeat, however, that an agreement is not a law, nor is the agreement itself binding, but in every case a law binds via an agreement. We have already said this above.

§107. Thus the nations are (all) under no obligation to each other from an agreement. For where and when was an agreement of this kind established?

§108. The notion of a tacit agreement will not help you out, as if nations bound themselves by imitating each other and by continuing to use certain actions which were initially undertaken by a few. I do not admit the existence of such a universal and continued imitation of this kind and I deny that imitation alone implies a tacit pact.

§109. Perhaps the manners and customs of those who use this law mean that the law of nations is unwritten. But perhaps they do not. There is no unwritten law outside of a commonwealth. For custom is law because of the tacit approbation of the prince. When that is lacking, the custom is called de facto. Yet where among nations do we find the tacit approbation of a prince?

§110. The Scholastics, moreover, divide precepts of natural law into affirmative and negative. That is easy to understand and applies to all laws, but the usefulness of this distinction is exiguous.

§111. “No,” says the Scholastic; “it is a hugely useful distinction. Affir mative precepts are always binding , negative precepts always and at all times.

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§112. “Nonsense,” I reply; “what poppycock. Let us speak in such a way that we understand each other.”

§113. Both types of precepts are always binding; that is, they are eternally true. But affirmative precepts are not binding at all times; that is, they do not bind all humans, nor do they bind in every single moment. Examples are the command to honor your parents, give alms, etc. But the negative precepts bind everyone and at all times. An example is the command not to insult anyone.

§114. So do the precepts “Obey a superior,” “Live honestly,” “Render everyone his due” not bind all humans at every time? And does the command “Do not commit a crime of lèse majesté” bind all humans and, for example, the princes and sovereigns themselves?

§115. You see that these effects do not depend on the affirmation or the negation, but are to be derived from elsewhere. The laws of nature either impose duties on humans living in any society whatsoever, or they impose duties that are peculiar to particular societies. Likewise, man can omit a thousand entirely different actions in one and the same moment, but he cannot perform these several different actions in one moment.

§116. Those are the subtleties which anyone can understand without pretty formulae. Moreover, we do not believe it is right to use this distinction to say that affirmative precepts of natural law always allow for an exception in cases of supreme necessity, and negative precepts do not. That will be clear from what is to be said in its proper place.

§117. Divine positive law is divine law publicized to humans through divine revelation and directs those actions that do not have a necessary connection with the rational nature of man.

§118. Thus, it is evident that this divine law is mutable and admits dispensation, but only by God, not by the pope or any prince. Yet the will of God is not therefore changeable.

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§119. Positive law is divided into universal and particular. There is no doubt concerning the latter, but the existence of the former is denied by some and defended by others. I think that the question what it is needs to be examined before the question whether it exists, if this can be done while preserving peace with the Scholastics.

§120. We speak of universal law with respect to all of humanity, particular with respect to a certain people. This distinction can, however, be taken in a twofold sense, either in relation to publication or in relation to obligation. Either meaning is relevant here, but publication is more important.

§121. Thus universal divine positive law is that which has been publicized to all humans or to certain persons representing all of humanity. The particular law is that which was given to the Jewish people.

§122. The Jews not only affirm all too confidently that this universal law was given to Adam and Noah, but they also describe it in their own way, mixing as they are wont to do false statements with true and augmenting natural law with positive law, mainly from their rabbinic traditions, whose opinion Selden, that ornament of Britain, explained in more detail in a work devoted to this particular question.31

§123. We have set aside all these traditions and look only toward Scripture, and so choose the middle way: we cannot deny the existence of such laws. For not only was Adam given the precept concerning the forbidden tree, and on avoiding polygamy and divorce, when marriage was first established, but Noah too was ordered to punish homicide as a capital crime and to avoid eating blood, etc.

§124. It is clear that these are positive laws because the relevant actions do not have a necessary connection with the rational nature of man.

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§125. We will survey the forms of this positive law in their proper place. We should only note this in advance, that these positive laws direct the duty of man either with respect to the worship of God or with respect to other humans. In the former case they have eternal beatitude as their immediate object. The latter have temporal well-being as their immediate object.

§126. Divine particular law is either ceremonial or forensic. The former concerns the regulation of divine worship, the latter the decision of court cases among the Jews. In the forensic law God aimed at the particular temporal well-being of the Jewish people, in the ceremonial at the eternal beatitude of all of humanity.

§127. Therefore, ceremonial law for the greatest part (that is, insofar as proselytes too were bound to its observance) binds all humans.32

§128. Thus, ceremonial law is, so to speak, in between forensic law and that law which we have called universal law. Universal law is such by virtue of its universal publication and obligation. Forensic law is particular in both respects. But ceremonial law is particular in its publication, universal in its obligation.

§129. For all precepts concerning religion are universal in terms of their obligation, for there is only one religion which cares for eternal salvation. They who neglect it are punished eternally.

§130. Nor should you be distracted by the common rule that “a law which has not been publicized is not binding.” This actually means that the (positive) law is not binding before it has been published. It does not mean that it binds only those to whom it has been actually publicized. For this would lead to many limitations, including, without doubt, the following: unless the subjects to whom it has to be publicized are at fault and do not admit the publication, for example, if they are rebels.

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§131. Forensic law has been extinct since the Jewish commonwealth has been extinct and the Jews have been dispersed over the entire globe. Ceremonial law expired with the advent of Christ, who having first fulfilled the law introduced new sacraments and a new religious worship, either by himself or through his apostles. This obligated all humans, in the same way, as once the Jewish law did, as we have said. About this there is all the less doubt, as the apostles were ordered to preach the gospel to all nations.

§132. However, Christ should not be called a new legislator because of that. For those who use that phrase imply that Christ also changed something in those precepts which concern the duties of humans to each other and required a more perfect obedience from Christians in the New Testament. But that would obviously contradict the infinite wisdom of God the Father, and it is also refuted at length by the theologians.

§133. So, does the particular Mosaic law and especially the forensic law have no use today? Grotius claims it has a threefold use: one is to show that the commands of those laws are not contrary to the law of nature. Another is to show that Christian magistrates may now pass laws that are similar to those given through Moses, unless maybe they are ceremonial or Christ ordered something to the contrary. Third, [it shows] that whatever has been commanded by the Law of Moses and belongs to the virtues Christ demanded of his disciples must also be fulfilled by Christians now, perhaps even more fully than before.33

§134. We agree with the first of these uses, but we have already refuted the second and third uses added by Grotius. We also deny that the second use suggested by Grotius concerning forensic laws applies to other cases as well. For in these laws God had in mind the well-being of the Jewish commonwealth, but the individual Christian magistrates must have the utility of their commonwealths before their eyes, which can be different from the utility of the Jewish commonwealth.

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§135. For example, the forensic law punishes theft by requiring the culprit to restore double or quadruple the amount stolen. This was sufficient for the punishment of thefts among the Jewish people. Thus, if in any commonwealth these punishments are sufficient, the prince will do well if he adopts them. But if he cannot obtain his end and thefts continue to multiply, the prince commits a sin if he does not increase the punishments together with the growth in crimes.

§136. They clearly err, however, who believe that divine forensic law prescribes a norm to princes, to which they must adapt the laws of their commonwealths, and that they sin if they issue a regulation which is not determined by these forensic laws or is contrary to them. On this basis, for example, they criticize the hanging of thieves.

§137. It is clear from the division of divine laws that divine jurisprudence has as its object natural law, and among the divine positive universal laws those that concern the duties of humans toward other humans.

§138. For these laws, as well as natural law, have the temporal well-being and tranquillity of man as their object—not principally, I should say, but still directly.

§139. We believe that this doctrine conforms to common practice in the territories of Protestant princes, and among us to the practice of the consistories and the regulations issued by the princes.

§140. Thus, our jurisprudence can be called Christian with regard to its positive laws because not only is the object of demonstration here taken from sacred Scripture, but the first principle of demonstration is derived from revelation, which the other parts of jurisprudence, as well as medicine and philosophy, do not do, and indeed must not do.

§141. Therefore, jurisprudence also differs from theology, partly because of its object, but properly because of its end. Indeed, only jurisprudence is concerned with human laws, because these are accommodated to the temporal well-being of man. The precepts of religion pertain to the theologians, Edition: current; Page: [113] and the doctrine concerning these bears the name theology in the strict sense, which explains the articles of faith.

§142. The divine laws, however, which regulate the duties of humans toward humans are common to theologians and jurists. They belong to the former insofar as they are, according to the intention of the legislator, subordinated to eternal salvation, or insofar as the gospel cannot be explained properly without the law. They are relevant to the latter insofar as God in them has immediate regard for the tranquillity and decorous order of this life.

§143. And therefore, when the theologians interpret these precepts, they do not simply call their treatises theology, but moral theology, which explains what actions are to be performed.

§144. You could also draw the following distinction between moral theology and divine jurisprudence. Moral theology inculcates the moral law [i.e., the Ten Commandments], which binds all humans without distinguishing between natural law and positive universal law; moral theology always uses sacred Scripture as its foundation, which is why moral theologians generally treat the moral law and natural law as synonyms. Divine jurisprudence, however, separates natural law from divine, and proves the former from the dictate of right reason, according to the doctrine of the Apostle Paul, but seeks the latter from revelation alone. This distinction is immensely useful in controversies, which are otherwise extremely difficult, concerning the obligation of the prince with respect to precepts of this kind and his power of granting dispensation and of legislation, etc.

§145. Therefore, it is correct to divide divine jurisprudence into natural and the divine positive universal law that inculcates the duties of humans toward each other. The latter we shall from now on for the sake of brevity simply call divine, and the laws with which it is concerned, divine laws. We will make an effort to do what has not been done before, that is, to keep them apart in the individual chapters, though we do not consider these two species in isolation from each other.

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CHAPTER III: On the Interpretation of Divine Laws in General and on Practical Principles

§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 the name of prudence.

§2. Interpretation must precede application, according to the rules of good teaching.

§3. Interpretation is the explanation of the will of another person when the intention is not clear. For the kind of interpretation that is called authentic is, properly speaking, no interpretation, but either a new law or a new agreement. That is not relevant here.

§4. This will is either that of a superior or that of an equal. Therefore, interpretation is either that of laws or of agreements, similarly of last wills, scholarly arguments, etc.

§5. Laws, however, are either inscribed in the hearts of men or are published through revelation. In the former case, interpretation uses demonstrations. In the latter, interpretation makes use of conjectures or probable arguments.

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§6. Either interpretation rests on certain rules and axioms, which are derived from first principles.

§7. First principles, however, are propositions formed by the intellect, beyond which the intellect cannot go in its reasoning.

§8. For since the intellect of man is finite, it cannot in its demonstrations ascend to the infinite, but is forced to stop at some point.

§9. According to the difference between theoretical and practical intellectual faculties [habitus], however, the first principles are divided into theoretical and practical.

§10. Many have written a lot on the theoretical principles. The practical have clearly been neglected, or taught in a confused fashion, or are even now sought for laboriously.

§11. Our only aim, after the glory of God, is the zeal for truth, and so we will contemplate the matter objectively, as it is, without looking for approval from anyone or flattering anyone, because we will not slavishly follow any particular author. Nor will we fear anybody’s hate, because we will not mention those we disagree with, nor will we fight with insults, but by reasoning.

§12. But we shall have to examine the matter in a little more depth. I presuppose (1) that the intellect, whichever way you define it, is one thing, and that the theoretical and practical intellects in reality are identical.

§13. (2) Our intellect either contemplates the essence of things, or their nature, character, accidents, or whatever you want to call this, or it contemplates the proper actions of humans.

§14. (3) All things are distinct from each other, but there are also shared characteristics, so that there is no being which does not have something in common with another in relation to a third term.

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§15. (4) When the intellect, therefore, contemplates the nature of things, it either contemplates their shared characteristics or their differences. Thus, every definition is based on this twofold concept, that is, of similarity in the genus and dissimilarity in the specific difference.

§16. (5) He who is able to draw out the similarities of things is said to have a powerful mind; he who accurately discerns differences has judgment.

§17. (6) Moreover, by contemplating the essence of things and their nature the intellect either conceives them as they really are or combines them with each other by some fiction, as they are not. And this act of the intellect is called imagination.

§18. By comparing all those things we have surveyed so far with each other we arrive at the supreme and first proposition, that is, the one to which all others can be referred, but which itself cannot be derived by means of demonstrative proof: anything either is or is not. Or, it is impossible for something to be and not to be at the same time. Or finally, mutually contradictory things cannot be true simultaneously. For these all mean the same. And this is generally called the first theoretical principle.

§19. Among those things, however, that are proper subjects for contemplation, man also finds himself. And when he contemplates his nature he sees that he was created not only for the sake of speculation, but for action as well.

§20. But when he compares his actions with his essence, he realizes that his nature does not allow him to be free of law and to regulate his actions without any norm.

§21. From this follows the definition of law. It also leads to the concept of a ruler and that of obligation since these are implied in the definition of law.

§22. When he finds that there are a variety of laws, he compares them with each other and looks for their differences. The upshot of these contemplations, Edition: current; Page: [117] or the conclusion, which is the first law and to which all others must be related, is called the first practical principle.

§23. From what has been said it is clear that the first practical principle is not the first in an absolute sense, but is subordinated to the first theoretical principle.

§24. For the first theoretical principle is the sum of all contemplations on the essences of things and nature. The practical is on the essence of one thing in particular, that of law. The species, however, is contained within the genus.

§25. The practical principle, therefore, already presupposes the knowledge of various things and above all of man and of human actions. And thus it also presupposes the theoretical principle.

§26. Thus they are mistaken who believe that the first practical principle is not subordinate to the theoretical.

§27. For it would follow that the theoretical principle would be false if there were anything in my mind which neither is nor is not.

§28. And so they who teach this deny in fact the first principle of the intellect.

§29. Or they make two distinct entities out of the human intellect.

§30. I will not mention that they themselves admit there is no point arguing against someone who denies first principles. We happily accept this in the case of the first theoretical principle. For nobody will readily deny this if he is human and no peasant.

§31. But if we assume the same in the first practical principle, we will not escape controversy, since the most erudite men disagree over this with each other, each of them surrounded by a crowd of his pupils.

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§32. If they all kept on contradicting each other, saying that there is no point arguing with someone who denies the first principles, except by resorting to physical violence, then a war would in fact break out, if not of all against all, certainly of most of the learned with each other.

§33. Therefore, the first practical principle must be demonstrated immediately from the theoretical.

§34. If I be permitted to do so, I can express this principle in a few words: “Obey him who has the power to command you.”

§35. I prove this first from the definition of him who commands. He who commands is one who has the power to bind another. If there were no need to obey him he would not have this power, but it is impossible for something to be and not to be at the same time.

§36. From the definition of law: Law is the command of a ruler binding subjects, etc. If there were no need to obey him who commands, the law would therefore not be law.

§37. From the definition of obligation: we have explained this above. There would be no obligation if there were no need to obey him who commands.

§38. This axiom deserves to be called a first practical principle because, for one thing, all particular laws must be related to it which can easily be proved through inductive argument from examples.

§39. It also deserves this name because it cannot itself be demonstrated using another law, since it follows from the definition of law in general.

§40. You could therefore call the principle the object of jurisprudence in general. For all forms of jurisprudence presuppose it.

§41. But since we have divided jurisprudence into divine and human, we must see what the first principle of divine jurisprudence is.

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§42. Its nature rests on the fact that all divine laws are referred to it, and that it itself is, however, demonstrated immediately from the first practical principle, mediately from the first theoretical principle.

§43. It will be the following: “Obey God.”

§44. The immediate proof is that this is true because God is a ruler.

§45. The mediate demonstration of this is that this is true because otherwise God would not be God.

§46. Either proof will be developed a little more fully since here it is simply supposed that there is a God and that he is a superior.

§47. Even the most barbarian nations have acknowledged and continue to acknowledge that there is a God. Many have even demonstrated it, especially those who wrote on natural theology or argued against the atheists.

§48. And here various arguments can be put forward. The most powerful is taken from the order of the causes of things. Whatever we see in this terraqueous globe does not exist out of itself, but is dependent on something else; yet we also see that those things on which they are dependent do not exist out of themselves, and so on. Thus we have to stop at some first cause, because the progress ad infinitum is repugnant to the intellect. This first cause is God.

§49. But our intellect cannot know perfectly what God is, even if it is assisted by the light of revelation, because of the infinite distance of human nature from the divine. The light of reason on its own is even less capable of understanding these mysteries.

§50. Thus, it is quite evident from what has been said about the existence of God that his essence is nobler than that of humans, who, as nature tells us, are in all other respects the most perfect among the sublunary creatures and are consequently longer lasting than those entities which Edition: current; Page: [120] we see around us, etc.; in one word, that he transcends our intellect, since our intellect can only understand what is equally or less perfect than ourselves.

§51. Yet there is a need for more subtle demonstrations if you want to prove from the light of nature that God is not one of the celestial bodies, since most humans do not know their changes, and I fear that even the most erudite would not be able to do so if they set aside revelation. When the Apostle, therefore, argues from the light of reason against the pagans, he attacks mainly those who regarded humans or beasts or inferior sublunary creatures as God, not those who worshipped the sun or celestial bodies.34

§52. Thus, at the same time, the wisdom of God is to be admired: among the nations that had ignored his most holy revelation, he allowed those who wanted to be considered the most rational to lapse into more absurd forms of idolatry than the barbarian nations. For these usually worshipped celestial bodies or invisible powers. But what is more absurd than the idolatry of the Egyptians, Greeks, and Romans?

§53. There will be the same difficulty if you want to argue on the basis of natural reason alone with those who say that nature or a soul of the world is God, or who defend the error that the world is eternal. For I do not believe that a pagan can be firmly held in check, even if you reply to him that he who asserts an eternal world denies that there is any cause of it, and so denies God. I can easily predict what he will say, namely, that this inference does not follow necessarily, for he who denies a cause of the world can declare that the world itself is God, or certainly that the world is coeternal with God since it is known that the pagans asserted two coeternal principles, God and prime matter.35

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§54. Thus I dislike the plan of the scholastic philosophers, who devote great efforts to investigating the divine attributes with the light of reason by two means, which they call those of perfection and of negation: the perfection which is in man they say is present eminently in God, and the imperfection which is in man is absent in God. For this is subject to infinite perplexities and qualifications. It is certainly not really suitable to be a proof, which is what they aim for, or at least should be aiming for in a theoretical discipline.

§55. To argue on the basis of perfection will be misleading if human perfection presupposes some imperfection; negation will also be misleading if the perfection opposed to human imperfection is at the same time joined with the imperfection, or if human moral imperfection is held to be such because of the physical imperfection of man.

§56. Thus, it is an imperfection of man that he cannot fly, but should you, like the pagans, invent a winged Mercury because of that?36 I do not think so. For this perfection of birds is combined with the imperfection that they are corporeal.

§57. How would you know that this imperfection (of a bodily nature) does not apply to God, if Scripture had not revealed that God is a spirit? For if among those who acknowledge sacred Scripture there are wise men who imagine that God is corporeal, it is not surprising that the Stoics, the wisest philosophers among the pagans, defended the same doctrine.

§58. So it is a moral imperfection in man if he rejoices over the pain of another, even if this person suffers deservedly, for he who rejoices in this fashion is called cruel. But God himself testifies that he wants to laugh at the misfortune of the godless. Do you, therefore, believe that God is cruel? Far from it! So what is the difference? It is that this moral imperfection in man presupposes a physical imperfection, and that even Edition: current; Page: [122] a human being distinguished by the greatest dignity is equal in essence to the lowest beggar. Yet in comparison to God all humans are only dust and shadows.

§59. Thus virtue is not the smallest among the human perfections, and among the virtues justice is preeminent. These virtues, however, cannot be conceived without imperfection. For virtue is the habit of living according to laws; justice is the habit of rendering everyone their due. I will not insist here that the term habit is not applicable to God, for there might be objections to that, but I do say that there is no law that is prescribed to God and that man has nothing which he could also attribute to God.

§60. Therefore, I would not dare to apply the title virtuous and just to divine majesty if I did not see that his infinite wisdom in the revealed word had not rejected these terms for our imperfect perfections. When I see this, however, I am filled with humble veneration because God decides to speak to me in human terms, and at the same time I confess most willingly that the genuine and most exact sense of these expressions exceeds my intellect and so pertains to the mysteries of faith.

§61. And so I believe I do better by freely confessing my ignorance than by concealing it, like the Scholastics, and pretending some sort of great wisdom and trying to cover my ignorance with a cloak of hollow clichés. For what, I ask, is this term eminently which they use? It is either the same as primarily, or they use it to describe that which is the case improperly. The first meaning pertains to what is analogous, the latter to what is equivocal.

§62. If, for example, they claim that virtue and justice are in God eminently, as in the most noble analogous case, they may be providing me with a definition of virtue and justice which can be applied primarily to divine justice and secondarily to human justice. Yet we will expect this in vain, for these two forms of justice do not differ in degree but, properly speaking, fundamentally and are as distant from each other as heaven and earth.

§63. And if they decide that divine and human perfections cannot be comprehended in a common definition, they thereby confess that they Edition: current; Page: [123] predicate these improperly of God. That is, they do not know how these properties can be predicated of God.

§64. What does philosophy gain from these trifles? Who would not laugh if someone tried to demonstrate the perfections of man from the perfections of the flea and asserted nothing other than that the perfections of the flea were present to an eminent degree in man. Yet the distance between man and God is greater than that between the flea and man.

§65. But those are the fruits of Gentile philosophy, or rather their abuse, that the Scholastics set about deriving mysteries of faith from philosophy and turned philosophy into the norm of theology, contrary to the precept of the Apostle, who warned the Colossians not to allow themselves to be deceived by philosophy and vain fallacy and, contrary to the aim of the Fathers, who sometimes used philosophy in theological matters, to reveal the absurdities of the pagan philosophers.37

§66. Among this abuse I reckon almost all of the Scholastics’ pneumatics, or their philosophy of spirits, such as God, angels, and the soul of man separate from the body. For everything they have taught on this matter and the arguments they have laboriously assembled will never convince a pagan, if revelation is set aside (with the exception of a few points concerning the existence and providence of God). But once you acknowledge Scripture, there is no need for all their ridiculous little books.

§67. Yet we believe there is a difference between God and the other classes of spirits in that the existence of God, as we have shown, can be investigated with the light of reason, but we cannot know (I say, “know”) anything about angels and the soul separate from the body, not even that they exist, without the word of God.

§68. This absurd plan of the Scholastics, however, bred all the more absurdities, so that they even applied place and time, which are used as physical Edition: current; Page: [124] measures of bodies, to spirits, although they cannot be measured, at least not in the way bodies can. The result is this golden, priceless mystery that, for example, the entire soul is in the entire body and is present in every part of the body in its entirety. If someone can prove this to me conclusively within a hundred years, may he carry away the prize of victory!

§69. Thus, you say, does reason show me nothing about God other than his existence and that he is the first being? It does certainly, but for the most part in a confused fashion: that he is independent, that he is omnipotent, etc. For he who calls God an independent being does not so much affirm something particular as deny his dependence. But he who calls God omnipotent does say that God can do everything, which does not involve a contradiction. Yet on the basis of the light of reason man only knows what is contradictory in an absolute sense, but not everything that implies a contradiction with respect to God, that is, that conflicts with his attributes as they are revealed in Scripture.

§70. Yet reason informs us clearly that God holds power over man and that God wants to exercise this power actually.

§71. God holds power over man because he is his creator.

§72. But I will demonstrate from the most solid proofs that God wants to exercise this power over man and that he wants at the same time to take care of the affairs of men. These proofs are all based in the first principle that it is impossible for something to be and not to be at the same time.

§73. (1) God is the creator of man. This assertion depends on the definition of God since we have demonstrated his existence above.

§74. (2) God therefore wanted man to be a rational animal. This is evident from the definition of man.

§75. (3) This means that God wanted man to live according to some norm, or law. This, again, flows from the definition of man, because it does not conform to the rational essence of man, to live without a law.

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§76. (4) Furthermore, God wanted man to act with love and fear according to a prescribed norm or law. I prove this from the definitions of law and obligation which I have provided above.

§77. Thus, God also wanted to take care of the affairs of humans. This flows from the definitions of love and fear, because someone who is not concerned with my affairs would be feared and loved in vain.

§78. I believe there can be no room for doubt here and there is no need for further explanation, since I have said that “a rational animal cannot live without a law.”

§79. Because beasts do not have a law, it does at first seem to contradict the excellence of man that he lives bound by a law, since it is inappropriate to restrict the freedom of a more excellent creature, but to concede liberty in every way to a less noble one.

§80. Yet the matter is obvious concerning beasts. They do live according to a norm infused into them by the supremely wise creator, but they cannot act according to an external norm because they are destitute of all liberty of action.

§81. Thus, when natural liberty is predicated of beasts, it does not denote a faculty of action implanted in them, but a part of the earth granted to them by nature and without consideration of human ownership, in which they exercise the locomotive powers of their bodies.

§82. Yet man has free will and is therefore able to direct his actions according to an external norm.

§83. But it is clear that he must put this ability into practice if he compares his nature with that of the other animals with respect to the body and the soul.

§84. Concerning the body he detects a greater weakness, when it comes to preserving himself without the help of other humans, than in brute Edition: current; Page: [126] animals. This weakness is so great that he would necessarily perish if other humans were not under an obligation to come to his help.

§85. Concerning the soul, insofar as he is corrupt in this state after the fall, he sees a greater depraved tendency to harm others. This is the result of several effects which are absent in beasts, even according to the opinion of the Peripatetics. If these people were not coerced by the fear of a greater evil, humankind would perish.

§86. But more than anything else, if man considers his soul, insofar as it is still right in this imperfect state, he will notice that he does not have a soul implanted in him only for the purpose of preserving the body (as are the souls of beasts), but one which consists of faculties that are stimuli to a fear of the Deity and to a social life. He notices that among humans there is a huge diversity of talents and inclinations which does not exist among beasts, and that this not only requires direction by a law to prevent the disturbance of peace by it, but that it [law] requires some sort of order and norm insofar as it helps to bring about peace and tranquillity among humans.

§87. Those who deny the principles that have so far been put forward concerning God are called theoretical atheists; you can divide these into crass and subtle. The former I call those who claim that there is no God. The latter are those who either claim that God does not care about the affairs of men or who say that he cares about them in such a way that they leave man no liberty of action, that is, who invent a sort of Stoic fate.

§88. For just as he who denies the existence of God destroys the foundation of all morality, so are all moral precepts similarly in vain if you accept those two last assertions.

§89. For if God does not take care of the affairs of humans, there is no ruler, and there will be nobody who must be obeyed.

§90. And if everything is directed by fate, there will be no obligation and no fear.

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§91. For if by fate we mean God himself, it is in vain that he is feared and loved if I cannot acquire his love or avoid his anger.

§92. If by fate we mean something other than God, he is feared and loved in vain because he cannot make me happy and cannot punish me.

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CHAPTER IV: On the Interpretation of Divine Laws in Particular, That Is, on the First Principles of Natural Law and Positive Universal Law

§1. The structure of our argument demands that we learn about the main points of natural law and of divine positive law. And we shall start with natural law.

§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 mean, a proposition that comprehends all other precepts of natural law under a common axiom—one, so to speak, which presupposes the two other, more general axioms, that God and a ruler [imperans] must be obeyed.

§3. Thus, there will be three requisites, according to which, like a touchstone, we shall examine a principle of this kind. These are that it is (1) true, (2) adequate, (3) evident.

§4. I say true; that is, it must not contain any false proposition.

§5. Adequate; that is, this proposition truly contains all precepts of natural law within itself, and no other precepts than those of natural law.

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§6. Evident; that is, it can be shown from the first practical principle, abstracting from revelation, that this is the divine will, and the link between it and the conclusions is evident and tangible.

§7. Perhaps you are laughing at such a circumstantial apparatus, and secretly you are delighted because you think you have with little effort found what we are looking for. What, you think, is this other than Do that which necessarily conforms to the rational nature of man, and omit that which is repugnant to it. We have already inserted this into our definition of natural law above, deriving it from the principle of noncontradiction. Thus its truth is clear, as are its adequacy and its evidence.

§8. But restrain your joy. You should have remembered that I had earlier promised a more detailed discourse on the conformity with the rational nature of man. I had in mind this chapter. In fact everyone makes a lot of noise about right reason, but when they are asked what right reason is and what the conformity with the rational nature of man is, then they are stuck. The connection of this principle with the first practical principle is indeed evident, but the connection of the conclusions with the principle itself is obscure. My complaint about the circumscription that everybody gives, however, is that truth is hidden away and thus, together with truth, adequacy and evidence are concealed.

§9. This was the subject of controversy for a long time among philosophers, jurists, theologians, and I almost added physicians, too, since someone discussed the laws of nations concerning headaches in a public disputation at a Catholic university.38

§10. The disputations of the ancient philosophers on the supreme good are relevant here. For Polemon the Platonist philosopher said, and Zeno and the Stoics, who received this opinion from him, taught everywhere, that Edition: current; Page: [130] the supreme good is to live according to nature. Plato taught the same, as did Aristotle.39

§11. So far the ancient philosophers agreed on the matter itself. The aim of all of them was to teach that a peaceful life of man with others is the supreme good. When they should have clarified this and taught the means of acquiring it, they quarreled over inane matters, which were irrelevant to the question. Do you believe that someone who says that the supreme good consists in an act of virtue becomes better able to acquire the supreme good than he who says that it is a habit of virtue or he who wants it to be a pleasure of the mind? Do you not believe that those people who argue over whether money consists in the physical object, the quantity, or the aptitude to buy other things are unable to make a profit, while in the meantime others are carrying out commercial transactions?

§12. Thus, we leave all of them to their mad wisdom. Justinian claimed that there were three precepts of right: “Live honestly,” “Harm nobody,” and “Render everyone his due.”40

§13. In fact, his generosity is a little overwhelming. We are looking for one proposition, and he gives us three instead. Let us pick the best one.

§14. The precept “Do not harm anyone” has to my knowledge not met with universal approval, maybe because it was too narrow. The other two have found some adherents.

§15. You may see some arguing vigorously that in the precept “Honest actions are to be performed, despicable actions are to be omitted” the sum of all natural wisdom is concealed. We do not object to that, but we would like some evidence. What is honest? No matter whether you call that honest which conforms to a law or that which conforms to reason, we are still not Edition: current; Page: [131] enlightened. For we shall then ask, “What is that which conforms to reason and law? You explain something obscure with something equally obscure.”

§16. Yet we fear above all that we will be ridiculed by the entire world if we attempt to put forward the idea of innate principles against those who deny the perspicuity of this axiom and if we wanted to censure them for denying the very first principle.

§17. But as far as the third precept is concerned, “Render everyone his due,” we see no reason why we should glory in it as if it were a newly discovered continent after the jurist had already mentioned this in his time in the definition of justice. If this precept really were evident, it would be surprising why none of the many ancient glossators, who studied the same with such great diligence, ever arrived at a clear idea of it.

§18. I think something similar ought to be said of another slogan of Roman law, that “everyone should live by the same law he uses to settle the legal cases of another person.” A similar rule is “What you do not wish to have done to you, do not inflict on another.” All of this is true; these are pious sayings, but they are not evident, nor are they adequate. They do not apply to relations between unequal persons. They cannot be applied to the duties of man toward himself.

§19. We almost forgot Hobbes. He put forward the following fundamental law of nature: “Seek peace, where it can be had, and where it cannot, resort to war.”41 Not bad indeed, if only Hobbes had meant what he said, and if only by peace he had meant the peace of all. A little earlier he had said that the first foundation of natural law is that “everyone should protect his life and limbs as much as he can.”42 Many scholars have already shown that this is false. That norm regulates the instincts of brutes. The excellence of man requires a different rule.

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§20. Until now we have easily cleared the field of lightly armed soldiers and fresh recruits who had little support. But now we need to resort to heavier weapons. The enemies attack in droves; their bold leaders march ahead of them: Sanchez, Rodriquez, Vasquez, names bound to instill terror.43 What then shall we do? Shall we flee? Shall we fight? The former is shameful. The latter is audacious. Either is prudent. We will flee, since even a Horace flees.44

§21. Therefore, having placed ourselves outside the battlefield we expect their approach. What need, they say, is there to search laboriously for a norm of reason? Man is created in the image of God, and it therefore must be the case that in the state after the fall the rays of divine sanctity and justice, which are, so to speak, relics of the divine image, shine forth in man. Thus, since God did everything according to the norm of his divine sanctity, goodness, wisdom, and justice, and so imposed on himself out of his own free will a quasi-eternal law, it has to be the case that natural law is also based on this archetype, and therefore to conform to right reason is the same as conforming to divine sanctity and justice.

§22. What do we say to that? Let us examine whether this proposition, “whatever conforms to divine sanctity is commanded by natural law, whatever does not conform to it is prohibited by natural law,” conforms to the above requirements. I will not comment on its truth. For we have already shown above45 that this eternal law is a fiction of the Scholastics and that God is not subject to a law, except in a very improper sense.

§23. Let us then consider the adequacy. And this norm seems to us wider than what is regulated by it, and in another respect narrower. For do you Edition: current; Page: [133] not believe that divine positive law is also based on its conformity with sanctity and justice? But we are already seeking the axiom from which we could derive the conclusions of natural law.

§24. If you respond that positive law is founded in conformity with the divine will, natural law in conformity with its sanctity, antecedently to the divine will, I will return to the comments I have already made above on this improper notion of divine attributes.

§25. But it is also narrower. Natural law dictates gratitude. But how do you deduce this virtue from the archetype of divine justice? Who ever did God a favor in order to have it returned?

§26. But above all we miss evidence. I will not repeat that virtues and justice are predicated of God in human terms and improperly. You should only consider this: natural reason provides no or only very confused notions of the image of God and its sanctity, but Scripture must here do its best. Hence, if a pagan asks why homicide, for example, is contrary to divine sanctity, or why keeping agreements for example is according to his justice, we shall either not have a reply or we shall have to draw on sacred Scripture and so meddle with it.

§27. I believe, however, that this belief of the Scholastics in the conformity of natural law with the divine essence owes its origin to pagan philosophy. For Augustine and Clement of Alexandria46 mention that Plato defined the supreme good and the essence of virtue as man becoming similar to God. The ineptitudes of the Stoics, who compared their wise man to God, are widely known.

§28. We therefore remember the saying of the apostle and do not seek the norm of natural right outside of man, but in man himself, in whose hearts Edition: current; Page: [134] it is inscribed.47 Let it be the case that there is in human reason an image or some remnant of the divine image, yet why do we not look at this reason of man in itself rather than in relation to something outside itself? Human reason is indeed something that exists in itself, not a mere relation the essence of which only consists in the fact that it is related to something else.

§29. Thus, we believe that the condition itself of humanity or the state of all of humanity is the norm of natural law. And why should we not think that? Indeed, natural reason itself, which almost everybody speaks about, is a condition of this kind. Indeed, it automatically 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 Edition: current; Page: [135] 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 Edition: current; Page: [137] 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 Edition: current; Page: [138] 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 just by recognizing the difference between the two states, yet a good physician must be able to cure both the robust and the weak men on the basis of the same general principles, applied in different ways.

§51. Thus man differs from beasts in that he is rational. If only our intellect were powerful enough to have complete knowledge of itself a priori! Yet we are forced to inquire into the nature of reason in a roundabout way.

§52. The reason of man consists in thought. To think is to connect one term with another and one proposition with another. The latter is called reasoning. But we can only reason with words, which we either retain Edition: current; Page: [139] in our mind or utter aloud. Therefore, lÒgow [speech], according to the Greeks, is either §ndiãyetow [uttered within] or proforikÒw [put forward/ uttered aloud]. Words, however, as we shall see below, are imposed on things by humans living in the same society.

§53. Moreover, whatever the Cartesians say, infants do not think from the very first moment after birth, but are endowed only with an aptitude for thinking. Without the company of other humans this aptitude cannot be actualized. For the reports we read about humans brought up by wild beasts say that humans of this kind were almost identical to beasts, or that by living among the beasts this aptitude for thought was developed only to a very small degree.

§54. To summarize briefly: there is no reason without speech, there is no use for speech outside society, nor is reason active outside society. Thus we will not go wrong in saying that this aptitude, which exists in humans before the exercise of reason, is nothing other than an inclination to reason with other humans. Indeed, every aptitude tends toward an action as its end.

§55. Thus, when we call man rational, it is the same as if we say that he is social. Sociality, however, is a common inclination, infused into humanity by God, by the force of which he desires a happy and peaceful life with other humans. But why peaceful? Because in a state of turbulence we do not exercise our reason.

§56. This peaceful life, put into practice, is called society. The contrary of that, as the Peripatetics themselves confess, is conflict.

§57. But we prove our opinion a posteriori, because man outside society cannot be happy. I will not even mention here that great misery in which infants find themselves if they are destitute of human company. Even for adults life would be miserable if there were no other humans who would minister to their needs.

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§58. What then? I appeal to everybody’s own conscience: even if we pretend that someone enjoyed the kind of felicity the poets attribute to Psyche, yet, if he were deprived of all human society, would he not rather wish to live in human society and do without these delights of the senses?50

§59. And to be precise, there can be no pleasure of the senses outside of society. It would be prolix to try to prove this by induction here. We demand that you come up with a counterexample.

§60. Even misanthropes would be miserable without human society because they would have nothing to hate.

§61. Even those bookworms and those people who never consider themselves more alone than when they are not alone would be miserable without books. But where would they get their books from if there were no human society? Assume that all other humans would be annihilated; what use would books be if they cannot show others what displeases them in this or that author, etc.

§62. If you wanted to confirm our argument with evidence from the history of the state of innocence, we have divine testimony, which is greater than all prudence, even that of Solomon. Adam was very happy in general, but he lacked a companion. Divine wisdom pronounced that it was not good for man to be alone.

§63. Thus, the conclusion remains unshaken that the rational nature of man is identical to his social nature. And therefore what is understood by conformity with rational nature is conformity with the sociality of man.

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§64. We, therefore, declare that the sum of natural law is contained in this principle: “Do that which necessarily conforms to the social life of man and omit that which is contrary to it.”

§65. Thus, no doubt remains concerning the truth of this principle. Its adequacy is not only clear from the fact that all special precepts of natural law are to be derived from that source, but also from the fact that it does not depend on any precept of positive law.

§66. Its evidence finally is demonstrated as follows. First, if God had wanted man not to act according to his sociality, he would not have wanted him to be rational. An irrational human being, however, would be a contradiction in terms.

§67. Then the connection of conclusions with this first principle is also evident. For whenever I ask, for example, how homicide, thefts, etc., are contrary to sociality, I respond clearly that this is because they disturb the common peace of all humankind.

§68. Similarly, when I ask how, for example, the keeping of agreements necessarily conforms to sociality, the response is evident: because, if this were not preserved, this same peace would be disrupted.

§69. You see, at the same time, that an action necessarily conforming to sociality is one the omission of which disturbs the common peace of humanity, and that action which does not conform to sociality is one the performance of which disturbs the common peace of humanity. For this omission or performance would lead to war, a war of all against all, which could extinguish all of humankind.

§70. Yet there is no lack of arguments against the adequacy of our principle. Some believe that it is possible to derive rather different conclusions from this source. Thieves, for example, also act according to their society and its purpose. This objection questions the truth of our axiom at the same time.

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§71. But these theorists obviously confuse society with sociality. Society is rightly constituted only if it does not conflict with sociality.

§72. And so that you do not wonder how a society can conflict with sociality, since society is named after sociality, remember that there is no question that the reasoning of a thief conflicts with reasonableness.

§73. Several people believe, however, that only the duties of man toward other men can be deduced from our principle, but not the duties of man toward God, toward himself, and toward beasts.

§74. We readily admit this to be the case with respect to the duties of man toward God insofar as these refer to external worship. That, as we will soon show, is part of Christian jurisprudence, not natural law.

§75. Even if by duties toward God you mean a general obligation toward God, you will not be able to object to our argument because the command to obey God is not a precept of natural law but its presupposition. We have shown that this precept pertains to divine law in general.

§76. The duties of man toward himself, properly speaking, do not exist. Nobody can be under an obligation to himself and therefore cannot owe a duty to himself. The duties that carry this name are, in fact, duties either toward God or toward other humans, insofar as man is under an obligation to either of them with respect to himself. In the case of the former we will derive these duties from Scripture; in the case of the latter from sociality, in the appropriate place.51

§77. Finally, there are no duties of man toward beasts, just as there is no society of man with beasts, although the harsh treatment of beasts violates sociality or divine positive law, as we shall explain when there is a convenient occasion to do so.52

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§78. Thus far on the first principle of natural law. The first principle of divine positive law is this: “Do that which God revealed to you in Scripture you should do and omit the doing anything contrary.”53

§79. With regard to universal positive law in particular, we identify three requisites as far as the principles of knowledge are concerned. Two are held in common with any positive law; a third is specific to it: namely, (1) that Scripture indicates an action to be commanded or prohibited, (2) that this action cannot be derived from sociality, (3) that Scripture indicates this law of God to apply to all humans.

§80. From these two sources we shall derive all conclusions of particular precepts like rivulets. And there is no need to say anything more about the interpretation of natural law. For in putting forward the conclusions we will use the same method of demonstration and the same kind of reasoning as before. In positive law, however, we have another kind of interpretation, which uses conjectures or probable arguments instead of demonstrations. For positive law is not inscribed on the hearts of humans.

§81. It thus has to be explained in certain general rules how these probable arguments are to be formed. But this discussion has to be deferred until we have explained the nature of agreements and the duties concerning them.

§82. For God, in his supreme benevolence, accommodated himself to the capacity of the human understanding when he revealed positive law by using human speech, and so here the same rules are to be observed as in the interpretation of agreements. Thus, we cannot examine it [positive law] before looking at the rules concerning speech and agreements. Moreover, scholars agree almost unanimously on the interpretation of the divine law that is relevant to the duties discussed here.

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CHAPTER V: On the Duties of Man Toward God

§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 from the first principle of natural law or positive law.

§2. It is contained in this one precept: “Worship God according to the manner revealed by himself.”

§3. What we mean by God is evident from the preceding passages; by worship we mean an external human action, consisting in speech, deed, or gesture, which signals the attention and reverence that is due to another.

§4. Divine worship is sometimes divided into internal and external, yet internal worship is in fact not worship in the absolute and most proper sense, but only a presupposition of external worship.

§5. Thus, those matters which tend to be referred to internal worship—that man should honor and revere God, or that he should admire his supreme power and goodness; that he should love him as the author and giver of all good; that he should place his hope in him, as all our future happiness depends on him; that he should acquiesce in the divine Edition: current; Page: [145] will which does everything according to his goodness in the best possible way; that he should fear him as being all-powerful and the one whose displeasure can cause the greatest evil; finally, that in all matters he should most humbly obey him as creator, lord, and best and greatest ruler—all these, I say, insofar as they can be demonstrated from natural reason we already assume to be included in the first general principle of divine jurisprudence, “Obey God.”

§6. Thus, the external worship of God, that is, the worship of God in the simple sense, or the religious worship of God, is either general and thus common to most, if not all, nations, or special. The former, it seems, can be considered mainly in relation to three elements: the invocation of God, praising him, and showing gratitude.

§7. I call special external worship the different kinds of invoking, praising, and thanking God, which vary between nations. Among Christians, for example, this concerns the usual practice (or what should be the usual practice) of appealing to God in the name of Christ, with a mind free of vengefulness, in public, by extending one’s hands, baring the head, even toward one’s enemies, through music, fasting, and listening to the word of God. The sanctification of the Sabbath and the use of the sacraments, etc., also belong here.

§8. And while I know very well that many people tend to derive the external worship of God from the dictate of right reason, we must proceed differently here.

§9. It is certain that it is appropriate for God to be worshipped by humans, and this is above all evident from the arguments of those who have attempted to demonstrate divine worship on the basis of natural reason.

§10. It is also most just that man should worship God whenever God demands it. This follows from the first principle of divine jurisprudence, “Obey God.”

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§11. But that is the question, or at least should be the question: Can unaided human reason prove that God demands worship from humans? We say that this is very difficult to prove.

§12. For if you look at God, he does not need this external worship. The philosopher Demonax used this as an excuse when he was accused of impiety and sacrilege because he had never sacrificed to Minerva.54 He replied that he had not offered Minerva any sacrifices so far because he believed that she had no need of his offerings.

§13. As far as man is concerned, however, the sociality of man or a peaceful life, or whatever you want to call his temporal happiness, is not directly harmed by this omission of external acts of worship as long as there is internal worship.

§14. Thus, I do acknowledge that blasphemy and contempt of God and whatever is contrary to internal worship, be it retained within the mind or declared in external actions, is contrary to right reason because it conflicts with the internal worship commanded by the precept “Obey God.”

§15. I also acknowledge that external worship is one of those things that are permitted to an eminent degree: it is not only not repugnant to the natural reason of man, but also far better, if God is worshipped than if this worship is omitted.

§16. Yet all this is not enough to prove the need for external worship. It is legitimate for human reason, left to its own devices, to argue that it does not matter whether prayers are spoken aloud. For God, who knows our hearts, can hear our [unspoken] sighs, and he, as my creator and preserver, knows what I am in need of even without my prayers.

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§17. Thus human praise adds nothing to divine eminence and majesty, and right reason even tells us that whenever a person praises God without reverence or fear, this person sins gravely, for he intends to deceive God through the use of external signs. But if man inwardly glorifies God, reason considers external praise superfluous.

§18. The same should be said of rendering thanks. Rendering thanks is necessary among men, in order to show another that a favor is accepted by myself and that I am prepared in turn to serve the other, as will be shown later.55 But with regard to God, my thoughts alone are enough to show this.

§19. In sum, prayers, praises, rendering thanks, are necessary external signs among humans because man does not know the thoughts of another man. God, however, does.

§20. And I do not care if you say that the external worship of God is necessary not because of God, but because of humans themselves, since the felicity of commonwealths could not survive without external worship, and there is no commonwealth in which there was not some form of external worship of God. You may add that even pagans place great emphasis on external religious worship.

§21. These arguments may seem pretty good, but we have already pointed out above that it is not possible to use the testimonies of pagans (quite apart from the question whether they are talking about external or internal worship) as definitive proof that something is part of natural law. And so the common practice of pagans can only provide an illustration, not a proof.

§22. But as far as the felicity of commonwealths is concerned, we must beware that we do not substitute the secondary purpose of divine worship for its primary purpose. Reason can understand that the happiness of commonwealths is supported by external worship if one citizen indicates Edition: current; Page: [148] to another through external signs his internal reverence for the Deity, which is the foundation of all obligation. This further increases the trust of the members of society toward each other. Yet these external signs are very often deceptive, and their omission does not necessarily disturb the happiness of the commonwealth.

§23. Moreover, if the happiness of commonwealths were the real purpose of divine worship, the generally accepted rule of philosophers (that is, that the end determines the means) would necessarily imply that religious worship would have to vary according to the variety of commonwealths and that the utility of individual commonwealths would regulate divine worship. That would be very impious.

§24. In fact, virtually everyone professes that the true end of religious worship is the eternal beatitude of man, but reason on its own knows nothing of that end. How then could it arrive at the knowledge of divine worship as a means to that end?

§25. These observations suffice concerning the so-called general religious worship of God. With regard to particular forms of worship there are as many arguments for our opinion as there are circumstances and varieties of such worship. There seems to be no need to explain these individually in detail since particular worship presupposes the general, the necessity of which, as we have shown, is not evident to reason.

§26. Thus, you see how ignorant our reason is with regard to this most noble duty of man, and to what extent the light of reason without the light of revelation is shrouded in darkness, and how dangerous it is to try to understand the holiest mysteries of God by the standards of reason, which is so weakened by the fall. And so you understand why, in the precept directing man’s duty in this regard, I would add: “God must be worshipped according to the way revealed by himself.”

§27. If we study sacred and ecclesiastical history, it will be clear that worship invented by human reason never pleased God, but that the Deity, Edition: current; Page: [149] from the very beginning of the world, wanted true worship to be guided by the standard of divine revelation.

§28. The true church is more ancient than false religions, and the devil has been the perpetual ape of God. Thus, it seems more probable that they are right who believe that the Egyptians and the other nations of the first centuries [of humankind] borrowed a lot from (or rather retained a lot of) what had been established by God in the beginning; it seems less likely, as some argue, that God drew on the precepts of the Egyptians or the Zabians when he passed his positive laws, especially his ceremonial laws.

§29. It is also evident from the above what is to be said about the common division of religion into natural and revealed.

§30. We have just now noted that the term religion is used in different meanings. It is understood as the action of the intellect concerning God and divine matters, that is, as knowledge of God; as the action of the will, and then either as internal worship or external worship; as knowledge of God together with internal worship; as external and internal worship; or as knowledge and both kinds of worship together. For different authors use the term religion in different ways.

§31. Those who by religion mean “knowledge of God” are certainly right to subdivide it into natural and revealed, though they commonly attribute more to this natural knowledge than is appropriate. Thus, the detailed comments we made above on this matter are also relevant here.56

§32. Those who use the term religion to refer to internal worship are not wrong either since we have just shown that this is derived from the principles regulating human action.57

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§33. And I am convinced that they are right in considering this natural religion in the first and second sense a part of true religion.

§34. This opinion is attacked by a number of people on the grounds that natural knowledge of God and of internal worship is not enough to achieve salvation. Yet I do not believe that this argument is conclusive since being true and leading to salvation are two different things.

§35. Thus true natural religion and revealed religion differ in that the latter is salvificatory, while the former is directed only to the temporal well-being of man.

§36. And how could it be otherwise since natural religion is far less perfect than revealed and rests on purely human faith, which is based on natural reason?

§37. They, however, who by “natural religion” mean some kind of external divine worship known on the basis of natural reason are wrong. All external worship is based on revealed religion.

§38. We have already shown this. Also, it is impossible to name any religion in the entire world which does not claim to be based on some revelation. We depend on the revelation of the true God; all heretics either distort the interpretation of sacred Scripture or proclaim revelations peculiar to themselves, which is what the Jews do. The Turks believe the revelations of their pseudo-prophets; pagans, from the beginning, mixed diabolical revelations with divine and even today either allow themselves to be deceived by the lies of the devil or believe the fallacies of his ministers, such as the Brahmins and similar people.

§39. In that respect [i.e., external worship] revealed religion, therefore, is either true or false. But external worship based on natural religion has to be a fiction or a form of false religion.

§40. And we must not be expected to derive particular conclusions concerning the duty of man toward God from the principle concerning the Edition: current; Page: [151] worship of God which we have posited above. For that is the business of theologians.

§41. We shall therefore omit to explain the precepts of Christian religion [on the basis of natural religion], as well as those religious precepts that were made known to humanity at the time of Adam or Noah.

§42. The many questions concerning sacrifices and their origin, which have been argued over a lot, are relevant here.

§43. It is the same with several controversies over the Sabbath and its observance, especially the question what part of this precept is moral and what is ceremonial.

§44. Similarly, there are the controversies concerning the prohibition of eating blood and parts of a living animal and its present-day use after the decree of the Apostolic convention on this matter was imposed on converted pagans in the early church.58

§45. Thus, we could have dispensed with this chapter, because it is about another kind of jurisprudence, if we had not had to respond to the opinions and reasons of those who disagreed with us.

the end of the first book
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BOOK II

I undertook this work trusting not in eloquence, but in truth. This work may be greater than can be accomplished with my powers alone, but truth itself will complete it.1

—Lactantius, “On False Wisdom,” chap. 1

CHAPTER I: On the Duty of Man Toward Himself

§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.

§2. The locomotive power of beasts, which lack reason, follows no other guide than this instinct [for self-preservation].

§3. Man, however, is rational and thus social, and therefore he must free his locomotive power from being governed by this instinct and subordinate it to sociality.

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§4. Thus the Stoics and, following them, other philosophers who discussed the duty of man were wrong when they explained this duty by referring to the first and second impressions of nature.2

§5. What they call the first principle of nature is nothing other than the instinct implanted in this body-machine, an instinct which is irrelevant to the moral duty of man and which is beyond the pale of law, insofar as man shares it [this instinct] with beasts.

§6. The care for oneself must take precedence before the particular duties toward others, insofar as someone who does not take care of himself is unable to benefit others. And the more difficult it is to correct self-neglect or prejudices, the more should man be concerned about this care of self.

§7. You could, therefore, formulate the following general precept concerning man’s duty toward himself: “Aim to preserve yourself in such a way that you further a peaceful life with others.”

§8. Thus, man must make use of those means of self-preservation that are necessary for encouraging sociality.

§9. Man cannot preserve his life using those means [of self-preservation] that disrupt peaceful relations with others.

§10. Those means which neither further nor disrupt these relations may, according to natural law, be used or omitted (unless divine law commands something else), but there are different degrees of permissibility, depending on the extent to which these means tend to contribute more to encouraging or disrupting social peace, even if they do so incidentally.

§11. As man consists of a soul and a body-machine, we must now consider what his duty is with respect to each of the two.

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§12. This duty is summarized by the precept: “Know thyself.” For he who does not know himself cannot properly judge what means are suitable for furthering sociality.

§13. Yet this precept pertains not only to the soul, as Cicero argues, who follows the mistaken belief of pagan philosophers that the soul alone is the essence of man. It pertains to man as a whole.3

§14. Insofar as the soul is concerned in particular, man knows it is his noblest part since it distinguishes him from beasts. It follows that the former must perform the function of a guide, while the latter is a servant or tool. From this is derived the specific precept: “Prefer the cultivation of the mind to that of the body.”

§15. We have also shown above that man was created not just for the sake of theoretical speculation, but also for action. Hence this other precept follows: “Prefer the cultivation of the will to that of the intellect.”

§16. These precepts state nothing other than that the moral good of the mind is to be preferred to its natural good, and that each of these must be preferred to those goods that only benefit the body.

§17. The so-called goods of fortune are required partly to cultivate and encourage both goods of the mind [that is, intellect and will], and partly to sustain the well-being of the body. Their use is to be regulated according to the above rules.

§18. I pass over the spiritual and eternal goods of the soul, even though the authors on natural law sometimes have a habit of discussing their cultivation. For I do not see how the eternal beatitude of man and the immortality of the human soul, which this beatitude presupposes, can be demonstrated by the light of reason.

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§19. We also avoid interfering with theology here. For we have shown that the discussion of this beatitude is to be left to theologians alone.

§20. Possibility here needs to be distinguished from actuality: of course, reason recognizes that the immortality of the soul is not impossible for God, for there is no logical contradiction in believing that a creature will exist forever.

§21. Yet I deny that it is possible to prove philosophically that the soul is actually immortal and that God wanted to turn this possibility into an actuality.

§22. And that is so because every proof must ultimately be derived from the definition of a thing. But the soul has no complete idea of itself. Although it feels, so to speak, that it is a thinking being, there is no necessary connection between thinking and eternal duration.

§23. Thus, man may examine his soul or its properties throughout his entire life, but he will not find out anything substantial without the help of sacred Scripture. This doctrine, therefore, belongs to the mysteries of faith and to the prerogatives Christians have before pagans.

§24. For as far as those pagans are concerned who asserted the immortality of the soul, it is quite certain that in some cases they adopted this belief from others, as several [pagan] authors have hinted; in others they based their argument on the consensus of nations or constructed their opinion on obscure and quite improbable arguments.4 And in other cases they used proofs that were based on a false and heterodox hypothesis.

§25. In general, pagan philosophers assumed two coeternal principles, God and prime matter.

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§26. As far as the souls of humans are concerned, however, some believed these to be produced by the power of matter and thus to be mortal, which is what the Epicureans argued.

§27. Others, such as the Platonists, believed that human souls were effluvia of the divine essence, and that they were all created at the same time in order to exist separately [from matter], but (because of some strange idea about matter) deserved to be imprisoned in physical bodies. Thus, they argued, the essence of man consisted only in the soul, which was a divine particle and thus immortal, or at least very long-lasting.

§28. I move on to the body. If man considers its structure, he will notice that the mind is supported by the body and that if the latter is in a poor shape the mind will not be able to do anything remarkable either. Among the goods of the body, however, life is the most important; bodily health comes second, followed by sound limbs. If life ends, the union of body with soul is dissolved; if the health of the entire body is ruined, the soul is disturbed in most of its external functions; and if particular limbs are damaged, those functions cease for which the soul requires this limb.

§29. From this follows the precept: “Prefer life to health, health to sound limbs.”

§30. Yet all the precepts we have put forward so far are subject to a limitation. The goods of the mind are to be subordinated to the preservation of common peace, and life, health, sound limbs, wealth, and the other minor goods take second place to it.

§31. This is where the contemplation of the whole, that is, of the union of body and soul, leads man, as we have argued repeatedly. Moreover, the same thought process shows man that he is a finite substance with respect to the powers of his mind and the strength of his body, and that there are many things which are not within our power and which it would be useless and therefore stupid to strive for.

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§32. Another precept follows from this: “You must not strive for something beyond your powers.”

§33. I believe that all conclusions concerning the duty of man with respect to himself can be conveniently related to these rules, and that controversial questions can be easily resolved on their basis.

§34. These [conclusions] are, for example, that man should use what is within his power well and according to reason.

§35. That man, where there is scope for human prudence, should not trust to blind chance.

§36. That man should not measure his own or others’ prudence and justice by the outcome of actions.

§37. That man should not allow himself to be distracted from a proposed action that is good by either fear or the desire for pleasure.

§38. That he should adapt to matters that he cannot change.

§39. That he ought to avoid carelessness in present affairs and excessive curiosity about the future.

§40. That he should avoid arrogance when he is fortunate, and desperation in adversity.

§41. That he ought to preserve by all means the reputation of a good man and, insofar possible, to restore it to its previous brightness if it has been damaged by calumny.

§42. That he should seek fame only from outstanding deeds which benefit mankind.

§43. That he should use honor to benefit others.

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§44. That he should abstain from arrogance and vainglory, especially in matters of little value.

§45. That he should maintain equanimity, if he has no opportunity to put his ability into action.

§46. That he should be satisfied with his lot and regard the rest as irrelevant to himself.

§47. That he ought to be innocently industrious in acquiring material goods.

§48. That he ought to be satisfied with little.

§49. That he should use his acquisitions as a means to satisfy his own necessities and to benefit others.

§50. That he should train the mind to avoid despair if material goods are lost.

§51. That he should distribute his goods with moderation and not dissipate them unreasonably.

§52. That he should abstain from pains that are not necessary.

§53. That he ought to enjoy delights of the senses with moderation.

§54. That he should control his passions.

§55. That he should not feel joy over the misfortunes of others or silly things.

§56. That he ought to rid himself of sadness, except insofar as he requires it for compassion and repentance.

§57. That he should love a worthy and honest object in such a way that other duties are not impeded and that the loss of this object does not result in illness.

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§58. That he ought to be free from hate for other humans and from envy.

§59. That he should not exhaust himself in vain by hoping for various uncertain and impossible things.

§60. That he should resist fear and anger with every effort as passions that are inimical and very damaging to the human mind.

§61. That he should choose an appropriately honest form of life, depending on his inclination, aptitude of body and mind, family, goods of fortune, parents’ advice, the command of the civil authorities, and opportunity or necessity.

§62. That he should not reject the study of letters on the grounds that they render men unable to perform the affairs of peace and war, but rather to perfect the talents he is born with.

§63. Yet that he should not waste time on useless studies, but to devote it to useful and elegant ones.

§64. That he should engage in studies that are useful for human life, not to immerse himself in them to pass the time while neglecting other duties.

§65. That he ought to follow reason rather than authority and to suppress the stubborn desire to defend false opinions.

§66. So far nearly all learned men agree. Now we must look at the controversial questions. First, concerning the power of man over his own life.

§67. No sane person would deny that it is not only permitted, but far more honorable to choose the likelihood of a shorter life in order to serve others, rather than seeking an inglorious life staying at home in order to reach an extremely old age.

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§68. There is also no doubt that a person can be rightfully commanded by his superior to risk his life for the sake of others.

§69. Even without this kind of command, all other things being equal, a person can undergo this danger for the sake of others.

§70. Suicide, however, requires a more careful examination. It is clear from the above that it is an offense toward God and human society to take one’s own life arbitrarily.

§71. The same holds if someone kills himself because he is weary of inconveniences, feels indignation at common evils, or is afraid of pains, when by bearing them patiently he could benefit others by his example.

§72. Nor is he to be excused if he uses the help of another.

§73. Far less are civil laws to be approved that command or even permit citizens who have committed no crime to throw their lives away.

§74. However, if someone saw that he would live in infamy before God, or realized with certainty that an enemy or tyrannical prince would soon kill him with intolerable cruelty, or, even if he is innocent, is commanded by the prince to bring about his own death because of a supposed crime, or is allowed to bring about his own death in order to avoid the shame of an execution—then it will be extremely difficult to convince him on the basis of human reason alone that he must abstain from suicide in these cases, since it is morally certain that these humans can benefit neither themselves nor others by preserving their lives.

§75. I do not want to include those here who commit suicide in order to avoid some sort of groundless shame (which is also why the examples of Socrates and Cato are very dissimilar, in spite of what Cicero says).5

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§76. It does not hold for young men or women who by committing suicide prevent the violation of their chastity, though these are more deserving of being excused.

§77. If someone believes that it is always better to be alive, even under the most severe pains, then he has perhaps been misled by the experience of some sharp pains which do not, however, exceed the common patience of humans, or he has forgotten the story of Job, a man who otherwise was most patient.6

§78. Yet you will say that Scripture teaches us that all those who committed suicide are indiscriminately damned to suffer eternal punishment. That is fine, I say, if Scripture teaches that suicide is incompatible with eternal beatitude. But we are only concerned with the dictate of reason and the temporal happiness of man.

§79. Therefore, I leave the dispute to be resolved by the theologians, whom we will not contradict any more than a physician would who says that a virgin cannot give birth.

§80. Moreover, let us examine self-preservation in cases when we are forced at the same time to repel violence inflicted by another, that is, defend ourselves. That is undoubtedly permitted if it is done without harming him who is planning to inflict evil on us.

§81. However, insofar as it is linked to the ruin of the person inflicting the harm it may seem contrary to the tranquillity and utility of human society.

§82. But this only seems to be so because in fact it is not. Rather, reason tells us that a ban on this kind of violent self-defense would lead not to peace but to the ruin of humankind.

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§83. Christian religion presents no obstacle to that. It is argued that the attacker is in danger of going to hell if he is killed, and several authors therefore believe that it is more praiseworthy to allow oneself to be killed rather than kill the attacker, or that the attacked will commit an injustice if he intends to repel the smaller harm to himself by inflicting greater harm on the aggressor. Yet there are many reasons with which to reply to this objection.

§84. But the distinction whether he who is attacked is a more useful person to society than the attacker, so that a violent defense is permitted in the former case while it is not in the latter—that is clearly inappropriate here, if you look at it in these general terms.

§85. Another question is if violent self-defense, which we have shown to be permitted, is also commanded to man. Some say so without reservation, claiming that he who neglects to defend himself in fact commits suicide.

§86. Others use the above distinction to argue that self-defense is not only allowed but obligatory if others have an interest in the survival of the person who is attacked.

§87. But if somebody only lives for himself, this violent self-defense is only permitted [and not obligatory], especially if the attacker’s life is beneficial to many others and it is probable that he will be subject to eternal damnation if he is killed.

§88. Now, to kill two birds with one stone, we think that it should above all be taken into account whether the attacker holds [rightful] power over the attacked or not. In the former case, if the power is that of supreme political authority, I believe that the attacked is not only not obliged to defend himself by violence, but is obliged to abstain from doing so.

§89. Indeed, the peace of all commonwealths would be disturbed if the subjects were given the power to resist the prince and his servants by means of violence.

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§90. And it will be no excuse for the attacked if he says that the prince abused his power and attacked him unjustly, since the justice and injustice of actions are not suitable criteria for resolving controversies among those who are bound together only by natural law—such as princes and their subjects, when they come into conflict with each other.

§91. If the attacker has a power which is less than supreme authority, I would not say that the attacked acts in a particularly praiseworthy fashion if he allows himself to be killed, but this [lesser] power means that the attacked can be excused if he allows himself to be killed by his lord, father, etc.

§92. Nor does he deserve to be considered to have committed suicide or to be compared to a person who killed himself with the help of another. For the latter desires and commands his own death; the former sincerely abhors it and shuns it, but does not resist it. The question is whether this nonresistance is a sin.

§93. If, however, supreme political authority conflicts with lesser power—when, for example, a soldier is attacked by his father, who is on the side of the enemy—then I believe violent self-defense is not only permitted, but, other things being equal, an obligation.

§94. If the attacker lacks authority over the attacked, though he commands others, and if the attacked lives only for himself (which he should not do), I believe the attacked is obliged to defend himself even if this means the death of the attacker, because the attacker, in attacking, evidently violates the principle of sociality, and it is very uncertain whether he will change. The attacked, however, is obliged to advance the future utility of others insofar as that is in his power. But he cannot do so without defending himself by force.

§95. In order for this self-defense to be considered just, however, some of its conditions need to be examined. These are summarized under the Edition: current; Page: [165] title of innocent self-protection. Many authors wrote a lot on this: the commentators on Roman civil law often did so in a confused fashion and Catholic theologians did so with impiety.7 The matter cannot be resolved without the distinction between the state of natural equality and that of civil subordination.

§96. The difference between these two states, insofar as innocent self-defense is concerned, is mainly based on three aspects: (1) the injury caused, (2) the time that has elapsed since it occurred, (3) the duration [of the injury].

§97. Those who live in the state of nature have the right to repel any injury, even the smallest, by means of violence and, if they cannot evade it by any other means, by killing their adversary.

§98. I say they have the right to do so, and I will therefore not spend time on the distinctions drawn by others between impunity [that is, freedom from punishment] and impeccability [that is, freedom from all wrongdoing], or between that which actually occurs among humans and that which should occur if nature were interpreted rigorously.

§99. For even in the state of nature these axioms remain intact: “The person injured by an enemy enjoys unlimited right over him (as long as he remains in a state of hostility). Likewise, until the person who has violated and thus broken the band of society is prepared to return to a state of peace with me he has no right to demand the fulfillment of the duties of sociality from me.”

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§100. The contrary argument, that the law of nature demands equality in resistance, too, lacks all foundation. If conscience is opposed to these rules, it must be considered erroneous.

§101. Moreover, just as no injury would have had to be feared in the state of innocence, so it is also impossible to contradict our opinion on the other questions concerning self-defense by arguing from the state of innocence.

§102. In the civil state, however, the liberty to defend oneself seems to be restricted insofar as it only permits the defense of one’s life or another good which would suffer permanent damage.

§103. Thus, in the state of nature moderate self-defense begins when it is clear that another person is planning to inflict injury on me, even if he has not yet fully executed his attempts. Hence, it will be permitted to attack someone preparing to harm me.

§104. In the civil state, however, the right to self-defense begins when the attacker makes it clear he wants to inflict injury on me, is armed with the powers and means of harming me, and is in a place from which he can actually inflict harm, taking into account that time which is required if I want to anticipate him rather than being anticipated.

§105. Because of the presumed perturbation of the mind a modest excess in [the use of violence] by the attacked is excusable.

§106. If the attacked is not to blame, then he will not be obliged to flee if he is on open ground, unless he can do so easily.

§107. That both sides should be equally well-armed is one of the dreams of moral philosophers.

§108. Finally, in the civil state the defense lasts until the danger of suffering an injury has ceased.

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§109. But in the state of nature it is also permissible to take revenge for an injury which has been inflicted. I shall say more about this later.

§110. On the basis of these distinctions, especially the first, the controversies over the defense of those goods that are less important than life can easily be resolved.

§111. In the state of nature their violent defense is clearly permitted; therefore, the question only concerns the civil state.

§112. Thus, I have the right to protect the integrity of my limbs by killing my adversary since his actions threaten my life.

§113. If it is therefore argued that the danger of mutilation is no sufficient justification as long as it is certain that one’s life is not threatened, that is as if I said that an elephant could fly if only it had wings.

§114. Chastity is a trickier question. If you consider it physically, it is possible to receive compensation for its loss. But if you consider it from a moral perspective, it cannot be taken away from me against my will because it is a state of mind.

§115. I used to believe that the justification for the defense of chastity by force could be based on the fact that the virgin ran the danger of experiencing, even if only for a moment, pleasure from the illicit intercourse with another and that this just fear of participating in the other person’s sin qualified as irreparable damage since she could not undo it and money cannot compensate for this kind of guilt.

§116. Having considered the matter more carefully, however, that argument does not seem sufficient either. Apart from the fact that it is not true that every time there is a violation of chastity the victim feels pleasure, this momentary pleasure of the victim cannot on the basis of reason alone be shown to be a sin, even if it is one.

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§117. Yet if we wanted to see what usually happens and form a conjecture on that basis about the presumed will of princes, I would say that in cases of doubt the prince is assumed to have permitted this kind of defense. In examples from history those who held political power have usually, if not always, praised such self-defense and approved it, sometimes even bestowing a reward on it.

§118. It is, however, repugnant to reason and universal custom to be allowed to avert a box on the ear or another person’s false testimony by killing the person from whom we fear this: a box on the ear is not irreparable, and false testimony has nothing to do with violent attacks.

§119. The same is true for the defense of honor and esteem.

§120. The defense of material goods is regulated as follows. When the stolen goods can be recovered with the help of the magistrate, it will not be allowed to go so far as to kill the attacker, unless the person who comes to rob our property cannot be brought before a court. In the latter case it is permitted to kill robbers or nocturnal thieves.

§121. For my self-defense to be blameless, however, it is not necessary either in the state of nature or in civil society for the attacker to be plotting my death by insidious means. This is because the same applies to the person who attacks me by mistake even if the mistake is genuine. For, leaving aside other arguments, we have already shown above that it is more equitable to blame an error on the person erring than on a third party [that is, the unintended victim].

§122. At the same time it is clear that this blameless self-defense does not deserve to be punished since it is lawful and a form of accidental homicide. The chastisements that have sometimes been imposed on accidental homicide are, therefore, not punishments in the proper sense.

§123. It is evident from what has been said that man is not only driven to avoid danger to his life by a natural instinct, but enjoys the right to do Edition: current; Page: [169] so on the basis of reason. If there is only one way in which this danger to one’s life can be resisted, it is usually termed necessity.

§124. Thus, of the three types of necessity distinguished by some, the first of which is for the sake of what is honorable, the second for that of safety, the third for that of convenience, only the second is relevant here.

§125. The Scholastics divide necessity into supreme necessity, which is what we have described, and great necessity, which we can evade by means of two or more remedies, of which one is usually inconvenient and the other illegal. In fact, however, great necessity is not relevant here, but is a form of necessity based on convenience.

§126. The following rule exists concerning our kind of necessity: “Necessity hath no law.”

§127. I say our kind of necessity. The Scholastics often extend this mistakenly to necessity based on convenience when they are resolving particular controversies. It is enough to point this out once.

§128. It cannot apply to necessity based on what is honorable since that is derived from a law, but our necessity has no law.

§129. Although this axiom is used by everyone and many have commented on it, the distinctions put forward by the learned (we leave aside the follies of the Scholastics and the papal moralists) do not answer all the questions concerning its meaning. At the very least they require some further explanation.

§130. Thus the question is whether necessity creates a tacit exception in laws, so that a legislator is not presumed to have wanted to force a subject to observe a law when observing it endangered the subject’s life.

§131. There is no controversy with regard to human laws. There necessity regularly creates exceptions, since general utility consists of the utility Edition: current; Page: [170] of individuals, and the preservation of individuals normally contributes more to common utility than observing human law.

§132. That is, unless the legislator explicitly ordered something to the contrary. That limitation is evident.

§133. Or unless the nature of the matter—war, for example, the conduct of others, etc.—requires a different behavior.

§134. The examination of divine laws is extremely difficult. It seems best there if we progress from what is better known to what is unknown and if we form an idea of the general rule on the basis of examples.

§135. A divine law is “The Sabbath must be observed.” There is no doubt here that I do not violate the Sabbath if I stay at home because of a severe illness or because I have to prepare food.

§136. On the other hand, there is no question that if an idolatrous prince commands the profanation of the Sabbath with actions that are prohibited on that day, one should rather suffer death than obey.

§137. Finally, I believe that someone who is banned by a tyrant from public worship on pain of death is certainly not obliged by divine law to risk his life by attending a service. For the examples of the martyrs are heroic and presuppose a special divine impulse.

§138. It was divine law that the laity (if they can be called that) were not allowed to eat consecrated bread, and nobody should eat pork. David, however, was allowed to eat the bread when he suffered extreme hunger. Yet it was not permitted to the Jews to eat pork when pagans commanded them to do so, threatening them with the most severe torments.

§139. And since the same reason applies, I conclude that David was not allowed to eat the consecrated bread if Saul, for example, had ordered him to do so on pain of death, but that the Jews were allowed to eat pork during the siege of Jerusalem.

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§140. You have here an example of negative precepts, in which necessity sometimes allows for an exception and sometimes does not. Now take an example which never admits an exception.

§141. This is, “You must not have sexual intercourse with your mother.”

§142. Why is this different? Perhaps a distinction needs to be made between divine positive laws and natural laws in that positive laws commonly allow for an exception in cases of necessity. But that would be contrary to what we have said about the profanation of the Sabbath, the eating of pork by the Jews, and committing incest with one’s mother.8

§143. We shall see whether we can make any progress in the following way. Divine laws are either affirmative or negative. Affirmative laws, by their very nature, presuppose the opportunity, material, and ability to act in order for someone to be bound by them. That is understood to be lacking when I cannot act without perishing. It does not matter how this necessity comes about though it must not be my fault.

§144. As far as positive laws are concerned, we can repeat what I have said about the sanctification of the Sabbath. As far as natural laws are concerned, the same reason holds, no matter whether they are precepts directed toward an imperfect obligation, which requires the performance of the duties of humanity, or a perfect obligation, such as keeping promises.

§145. In the case of negative precepts various distinctions are necessary. First, the question is whether the necessity has its origin from God or from the malice of other humans; then whether the main malicious intention of other humans is to cause death or whether they primarily seek to transgress the law; finally, whether the means of evading this is supplied by natural instinct or, again, by human malice.

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§146. If necessity is the product of human malice and is intended to cause death, and natural instinct supplies a means of evading it, then it will be allowed to make use of this means, even if it is otherwise prohibited by God, because God is not presumed to want to encourage human vileness by applying a rigorous interpretation of his laws. In addition, the instinct to apply this means is given by God since it is natural.

§147. Thus, a Jew would have been allowed to preserve his life by eating pork if another person wanted to starve him to death for no just reason. And a Christian will be allowed in a similar case of necessity to take food against its owner’s wishes. Here again you have examples from positive and natural law.

§148. If, however, the means of escape is provided by human malice, it will not be permissible to use it because he who proposes this means offends God. The acceptance of this means usually implies a denial of God’s existence because it is assumed that God will compensate the loss of this present life with a greater good.

§149. So if an infidel had offered pork to a Jew whom someone else was trying to starve to death, the Jew must abstain from eating the meat. Similarly, if a mother promises to release her son who has been unjustly imprisoned on condition that he commit incest with her or, to take an example from natural law, if he kills an innocent person, then this offer must not be accepted.

§150. It is even less permitted to evade necessity by violating divine law if the person who has caused this necessity is trying to bring about an illegal action. This is so because the same reasoning applies as above.

§151. And this is true no matter whether the means to do so is supplied by a new form of malice—if, for example, a tyrant wants to force someone with death threats to abjure true religion and this person is then promised freedom in exchange for acts of lewdness or homicide.

§152. It is also true if natural instinct impels me to save my life. For then life takes second place to the offense caused to God, just as when a pagan Edition: current; Page: [173] orders nothing but pork to be offered to a Jew who refuses to abjure his religion.

§153. But if the necessity takes its origin from God and the means to escape it is provided by a purely natural instinct, it will be permitted to make use of it because the means is from God and because the action does not imply atheism.

§154. Thus, it would have been permitted to Jews to eat pork in times of famine, and it will be allowed to still hunger in times of famine by eating food that is owned by others.

§155. It is another matter if human malice provides the means of escaping necessity because that constitutes an affront to God.

§156. One example is if someone promises bread during a famine in exchange for committing acts of lewdness or homicide.

§157. If we take these distinctions into account, I believe that it is easy to reply to various particular questions on the right of necessity.

§158. There is no doubt that it is permitted to sever a limb to save one’s life.

§159. To feed on the flesh of human cadavers in times of famine is deplorable, but not a crime.

§160. It is even deplorable rather than unjust in such a case to decide on the death of one person or a few by drawing lots, in order that several others be saved.

§161. This is true all the more if two people are exposed to an immediate threat to their lives, in which each would perish—in a shipwreck, for example, or in battle. Then one person will be allowed to save himself by bringing about the death of the other, who would perish in any case. He Edition: current; Page: [174] is, for example, allowed to push him off the plank, which is too small for both, or to leave him in mortal danger by closing the city gates.

§162. There is even less doubt that one person is allowed to expose another to the danger of death or great injury indirectly, such that it is not his intention to harm him, but only to defend himself by this action, which will probably cause great harm to another. An example is if a lame man, a child, or someone else impedes a person fleeing down a narrow alley.

§163. The reason in these three cases is the same: the necessity comes either from God or from humans who endeavor to kill me. The means of escape, however, is supplied by the natural instinct to preserve my life.

§164. But, you will say, does this not result in homicide, which is prohibited by natural law? I do not think so. For the law of nature, which prohibits homicide, does not refer to any killing of humans, but only to the treacherous murder of an innocent person.9

§165. I shall not argue that the killing in the above cases is not treacherous, for that is debatable. But I deny that in those cases the killing constitutes murder.

§166. “What must I hear?” you say. “Do you not know that even the Gentiles say that to murder is the same as being the cause of death?”

§167. Fine, but I deny that in the above cases the person defending his life is the cause of death.

§168. Insofar as moral imputation is concerned, the primary intention is taken into account, so that, depending on whether this intention is licit or illicit, accidental effects and secondary intention can be judged on this basis.

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§169. Thus, if someone intends to kill another, but misses with his sword and cuts open [and heals] a deadly ulcer instead, he will not be able to claim the reward for this beneficial deed.

§170. Similarly, if someone intends to correct a servant, but by mistake strikes a friend, he will not be held responsible for the injuries.

§171. Also (so you do not say that in the above examples this is true only because the beneficial deed in the first case and the harm in the second had not been intended), if someone increases the height of his building for the sake of convenience, and only incidentally wants to deprive the neighbor of daylight, he does not do the neighbor an injustice.

§172. For it is a secondary intention whenever I desire, from a purely natural instinct, a means to achieve an end, a means that I would not desire if I could achieve the end in some other way.

§173. Thus, to return to our cases, the intention there is primarily the defense of one’s life, and only secondarily the killing of another person, which in these cases often does not happen necessarily even if it is quite likely. Thus, they who defend their life are to be called the accidental causes of another person’s death, or they are the physical but not the moral cause of death.

§174. I believe it is different for someone who is commanded by a tyrant to kill an innocent man unless he wants to lose his own life, because the origin of the necessity comes from man, who intends to bring about an action contrary to law by providing a means to escape this necessity.

§175. It is no use distinguishing whether the prince commands his subject to perform an action which is the subject’s own, or only the execution of an action which is, properly speaking, that of the person commanding it. As if, in the latter case, the murder of an innocent person cannot be imputed to the subject any more than to the sword or the axe.

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§176. While this comparison of man with a sword is in many ways inappropriate because they are different in many respects, I also doubt that it can be called a mere execution if a person, at the command of someone else, kills another human being whom the person obeying the command knows to be innocent. I also doubt that it can be compared to the commanded reading of a speech full of lies (which is no more a crime than when a scribe at court records blasphemous words). If you really wanted to describe the murder of an innocent person as the mere execution of another person’s will, I would like to ask what the difference is between the death of a human being and the command to commit incest with one’s mother. Everyone acknowledges that doing so is such an awful and despicable deed that it is considered noble-minded to want to die rather than perpetrate this crime. While the prohibition of incest is based on positive law, as we shall show later, homicide is banned by natural law.10

§177. It remains for us to see whether necessity confers the right to take away other people’s possessions or whether this amounts to theft. Different authors have different opinions on this. Some believe that it is theft, but is not to be punished. This seems to involve a contradiction since they call something a crime which does not deserve a punishment.

§178. Some believe that in this question there is no case of necessity, but this view does not rest on a firm proof.

§179. Some deny it to be theft and look for a way out in the various definitions of theft. Some claim that it is not the appropriation of another person’s property since in these cases [of necessity] the original communion of goods is revived. Others affirm that the owner had no right to be unwilling [to part with his possessions]. Others believe that it is no fraudulent appropriation. We agree with this last argument.

§180. Indeed, in cases of extreme necessity duties required by humanity are transformed into perfect duties. Others have already put this forward Edition: current; Page: [177] in more detail, together with the required limitations. It will also be clear from what is to be said in its proper place.11 Thus, even those who contradict concede that an indigent person should approach the magistrate to indicate that there is a perfect obligation [to allow him to take food].

§181. To sum up, they who believe that theft is being committed in this case do not know the definition of theft.

§182. Finally, if we are subject to supreme necessity through no fault of our own, this allows us to cause the loss of the possessions of others which are less precious than our own. We are, however, responsible for part of the loss and must offer restitution for part of it to the other person. On this is based the equity of the Rhodian law on loss.12 I am also allowed to tear up nets in which my ship has been caught.

§183. It is more difficult to judge whether necessity justifies causing the loss of the possessions of others when there is a risk of losing our property. This cannot be considered supreme necessity unless it is linked to danger to my life. Some conclude from this that he who wages a just war is allowed to occupy a territory that is at peace if there is a clear danger that the enemy will invade it. Though cautions are usually added to this, nevertheless this pertains more to those matters where it is possible to allow an exception rather than those that can be defended on the basis of natural law.

§184. Among those who live in a civil state, it can be justified more easily—for example, if the political authority commands or allows the destruction of buildings during a fire, or if someone provides a surety for damage that has not yet been done or grants right of way to my piece of land, which is surrounded by the land of my neighbors, and similar cases.

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CHAPTER II: On the Duty of Man Toward Others, in Particular on Preserving Equality Among Humans

§1. Now I shall discuss the duties of man toward other humans. These either guide humans living in a particular society or concern humans no matter what form of society they live in.

§2. Common duties derive either immediately from God, independently of any human consensus, or they presuppose pacts and agreements among humans.

§3. You could call the former absolute, the latter hypothetical. We shall not protest if you call the former innate, the latter acquired, since innate obligation corresponds to absolute, and hypothetical obligation to acquired.

§4. This distinction seems to have been invented for teaching purposes since it does not contribute a lot to resolving controversies.

§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 one person ceases to fulfill his duty. The argument here is that the author of the obligation can compensate the person who suffers a loss. But this seems rather confused.

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§6. It is also confused to say that the obligation to perform the duties of natural law, which are commanded by God, is comparable to an obligation based on an agreement, because one person’s breaking of the agreement means he can no longer demand the performance of these duties from the other, and the other person also has the right to compel him to provide compensation.

§7. But if (as it seems) the meaning here is that I am never under an obligation toward another person who first violated these duties, but am under a special obligation toward a superior on the basis of absolute precepts, then there are several possible objections to that.

§8. It is true, a superior can force me to pardon an offense by someone even if he does not offer compensation. In the state of nature I would not be obliged to do so [that is, to pardon the offense] as long as the other person did not make amends. Yet the superior is not presumed to do so normally and without a specific declaration of this will, and this applies not only in absolute precepts but in hypothetical ones, too.

§9. For who would deny that God or any other superior can force a subject, other things being equal, to keep faith with someone who has broken the terms of a contract, or to pardon someone who refuses to offer restitution of his property, etc.?

§10. Moreover, the argument that I am not bound to perform a reciprocal duty toward someone who has harmed me unless the superior has specifically commanded me to do so is only true for obligations among equals, or those that superiors have toward inferiors. But unless we want to follow Monarchomach principles, it is not true for the obligation which inferiors are under toward superiors, no matter whether this obligation is based on a hypothetical or an absolute precept.13

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§11. The first absolute precept, however, seems to be that based on the condition of humans which above we have described as the condition of humanity.

§12. Since this prevails among all humans, universally, be they rulers or subjects, it creates some kind of equality among us.

§13. And this equality can be explained in different ways, on the basis of a dictate of reason or by resorting to revelation. In the former case this equality reflects either man’s right nature or his corrupt nature.

§14. For if you first consider the essence of man and his existence, by virtue of which he is an animal, all humans trace their origin to the same roots and are propagated the same way: they are born, die, expel what is superfluous to nature as filth, are all subject to the vagaries of fortune, etc.

§15. But this natural equality is something humans have in common with beasts, and it is not a suitable foundation for rules according to which to live one’s life. What is more important here is the equality of right, insofar as they are humans, because everybody must perform the duties of natural law toward others, however much they excel others in terms of the goods of the mind, the body, or fortune, just as everybody expects the performance of these duties from others. Nor does anybody have a greater right to inflict injury on others. For they who lack abundant goods of the body, fortune, and the mind are not inferior to others when it comes to enjoying the law that is common to all.

§16. Moreover, when we examine the corrupt state of man [that is, after original sin], we shall also notice an equality of malice, in that adults are all equally capable of hurting others and causing them harm, if not with violence, then by cunning and fraud.

§17. You should, however, beware of overemphasizing this latter form of equality as Hobbes does, since it is more of an appendix.

§18. Among Christians, however, there is also Christian equality, which is derived from the light of Scripture. This says that the friends of God must Edition: current; Page: [181] not be esteemed according to their nobility, power, or wealth, but according to the sincerity of their piety, to which all are obliged. And in the last judgment and in the rewards and punishments after death no attention is paid to those things with which mortals try to distinguish themselves before others in this life.

§19. These forms of equality, and especially the equality of right, lead to the general precept that guides all duties among humans: “Treat another human equally as a human being.”

§20. The general validity of this precept is evident not only from the conclusions that are based on it. It is also demonstrated by that saying of our savior, who taught us the essence of the law directing our duties toward others: “Love your neighbor as you love thyself.”14

§21. Thus, our formula converges with that of Christ, and these other paraphrases of the same precept are close to both: “What you do not want to be done to yourself, do not do to another,” and “Every person should apply the same law to others as to himself,” although these are not as self-evident, and the latter was used in a much narrower sense in Roman law.

§22. We must not, however, confuse the equality of liberty or power with the kind of equality we have been discussing so far. The equality of power means that all humans are understood to be equal by nature in such a way that in the absence of a previous human deed or agreement nobody enjoys any power over another, but each person is master of his own actions and powers.

§23. That equality [of liberty or power] does not apply to all humans, but only those who live in the state of nature.

§24. Yet, while its opposite, inequality, is found mainly among those who live in civil society, as we have said above, not every inequality is introduced after civil states were established. In part, inequality emerges in a Edition: current; Page: [182] society ruled by heads of families, which precedes political societies, as will be shown later.15

§25. It follows automatically that our precept [to preserve equality] is valid even among those who are unequal with respect to their liberty, for they too are equally humans in relation to each other.

§26. It must be noted, however, that our precept in most cases imposes a perfect obligation on those who live in the state of nature, but among those who live in civil society it obliges those who hold power only imperfectly.

§27. In civil society the duties of citizens that follow from this precept are often limited by the ruler, according to the utility of the commonwealth.

§28. To develop a better understanding of this precept to preserve equality, let us divide it into four particular precepts, two negative and two affirmative.

§29. For he observes equality who gives himself neither more nor less than others, but gives each side equal amounts.

§30. Therefore, the first negative precept is that I should not give myself more than another, which would reflect pride.

§31. The other negative precept requires me not to give another person less than myself, which would be a form of harm.

§32. The first affirmative precept is that in the absence of an agreement I should give another person as much [as I would give myself]. This is based on the duties of humanity.

§33. The second is that I should grant another as much [as I would grant myself] if a corresponding agreement has been formed. This is based on the duty to keep promises. Now I shall examine each in turn.

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CHAPTER III: On Avoiding Pride

§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.

§2. Thus pride is a vice by which someone grants himself more than another, without just cause.

§3. While those people are most suitable for society who happily grant the same to others [as to themselves], those people are clearly unsociable who consider themselves to be superior to others and at the same time want everything to be permitted to themselves and find excuses for all their actions, yet they forgive others nothing. They also claim honor and a special role before all others, although they have no particular right to that, and are like rough and many-cornered stones, which are useless for building.

§4. Pride shows itself in two ways in humans: either without or with external signs of contempt for others, that is, in deeds, words, facial expression, laughter, a gift, a picture, etc.

§5. Each of these, but especially the first, either rests on certain reasons and pretexts which may not be just, but are at least plausible and are based on properties of the body and mind, honor, and wealth. Or there is not even that.

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§6. These forms of pride differ in their degree. That which has pretexts occupies the lowest degree. It does not render humans obviously unsociable and is often, other things being equal, accepted among humans. You could call this common pride for the sake of distinguishing it from the others.

§7. The kind of pride that is unfounded but does not involve contempt is placed in the middle; this is, when someone does not believe he has any particular merit for which he should be esteemed, but believes that esteem is based on usurpation, as if he who demands more esteem also gets more of it.

§8. This mistake is so absurd that it would be hard to believe there are people who prostitute themselves in this fashion were there not many who flattered them and by their vain praise encouraged them in this pride. For it is foolish if someone esteems himself highly for no good reason, and this same person treats others as fools if he thinks that they would esteem him for no good reason.

§9. This form of pride, therefore, cannot be excused as easily as the previous kind, yet among humans it is not punished, because they who are affected by this vice harm themselves more than others. They seem to deserve pity rather than disdain and attract the derision rather than the anger of others. They often serve for the amusement of others. You could, therefore, call this foolish pride.

§10. Yet that pride which, in addition, looks down on others is an intolerable injury because it provokes feelings of anger and lust for revenge in others. There are many who would rather expose their life to immediate danger or disrupt peaceful relations with others than suffer great disgrace. This is because the intention behind this pride is to undermine the esteem of another person, which, if it is intact and vigorous, constitutes the entire joy of the mind.

§11. Since this form of pride is a just cause of war, it is rightly subject to punishments in political society. It comes as close as is possible to being Edition: current; Page: [185] an insult (which we will discuss in the following chapter) and is generally described as the particular crime of disgrace or injury by [the different] nations.

§12. If you abstract from civil laws, however, you could conveniently distinguish that form of disgrace which occurs without reproaching another person for a defect (when, for example, someone mocks another person by pulling faces, by making gestures, and by other physical forms of expression) and that form which reproaches another person for certain defects either in words or deeds—in his behavior, for example, or in a picture.

§13. The latter reproaches another person either for natural defects or moral vices.

§14. These three forms of pride differ in their degrees, the first being serious, the second more serious, and the third the most serious.

§15. It is also clear that physical injury, beating, or killing pertain to the following chapter, since they do not necessarily detract from a person’s reputation or esteem.

§16. The fact that Roman jurists regarded these [forms of pride] as a type of injury may be due to the fact that there is no ordinary way to estimate the damage these cause a free man, and it would therefore not seem to square with a legal action based on the Lex Aquilia,16 the purpose of which is to provide a true and generally accepted valuation of goods. Therefore, they considered it an action applicable to injuries, since this allowed a person bringing a lawsuit to estimate the value of his reputation, which is not part of commercial exchange, and hence it did not seem inappropriate if something similar were granted to the person bringing a lawsuit for harm caused to his health and the soundness of his limbs.

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§17. The belief of the ancient Greeks that certain humans were slaves by nature must therefore be rejected. It is contrary to the natural equality of humans and to common peace in that they who consider themselves naturally free and wise claim power over natural slaves on the grounds that they are stupid and barbarian.

§18. Opposed to pride is humility, the constant companion of true generosity, which is based on our awareness of the weakness of our nature and our errors, which we may have committed or may commit, and which are as great as those which may be committed by others.

§19. The result is that we do not prefer ourselves to anybody else because we believe that others are just as able to use their free will as we are since they are endowed with it as much as we are. The legitimate use of this free will is the only thing that man can truly consider his own and on the basis of which he can either esteem or despise himself.

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CHAPTER IV: On Not Harming Others and on Compensating for Harm That Has Been Done

§1. The other negative precept that is based on the general condition of humankind and on the precept concerning the observation of equality is “Do not harm anybody.”

§2. This precept is extremely broad in its scope and, at the same time, very easy to observe. It is also highly necessary because without it human social life cannot exist in any sense.

§3. The term harm is ambiguous. It describes first the denial of any sort of right owed to another, even if this is based on an imperfect obligation. But this is an incorrect use of the term.

§4. Second, it is understood as the denial of a perfect right, whether this is owed on the basis of an agreement with the person denying it to us or without such an agreement. Thus, it is used in the case of contracts.

§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 to unjust harm. Thus, he who insults me also harms me.

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§6. Fourth, it is understood as the harm caused to goods which are of the latter kind, be they physical goods or those of good fortune. Thus, physical injury is an example of harm.

§7. Fifth, and finally, it can stand for the harm caused to goods of fortune, for example, if someone kills my sheep, spoils other things, or steals them.

§8. The first meaning is not relevant here, not only because it is based on a misunderstanding but also because we are here looking for a particular precept, not a general one, and because it is more relevant to the following chapter.

§9. The second meaning is not relevant here either, for the harm that occurs in cases of contract concerns the precept on keeping promises.

§10. The third, however, is not the concern of this chapter either, as our comments in the previous chapter make clear.

§11. Thus, we turn to the fourth, which does belong here. The meaning of our precept, therefore, is as follows: You must not spoil or steal another person’s goods of the body or of fortune if he owns them independently of any agreement with you, and you must not prevent him from making use of these.

§12. Note that I say “if he owns them independently of any agreement with you.” This precept not only protects the rights that nature itself granted to us directly, such as life, the body, limbs, chastity, and liberty, but extends itself to all institutions and conventions by which something is acquired for a human being, as is the case with material wealth, as long as they are not owned only on the basis of an agreement with the person causing the harm.

§13. But what is the use of the fifth meaning? I added this because of the Lex Aquilia of the Romans, which concerned only material wealth. It is obvious from the preceding chapter why this is not extended to the other goods, to those of the body and to chastity.

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§14. Harm, however, results in damage, which here means a lack of some good because of the illegal actions of another.

§15. All negative precepts, however, imply an affirmative precept, and so the consequence of our precept is: “Compensate for the damage you have done.”

§16. For if someone has actually been harmed and must put up with the damage without compensation, while he who caused the harm can enjoy the fruits of his crime safely and without offering restitution, then the precept not to harm others would be vain and entirely useless.

§17. There are several kinds of damage. It is first either positive, if I take away something that belongs to somebody else (if, for example, I commit theft or burn down somebody’s home), or it is privative, if I prevent a gain that another had reason to expect.

§18. Second, damage either produces some gain for the culprit, as in the case of theft, or it does not produce any gain, as in burning down a building.

§19. Third, damage is inflicted either directly on the thing itself, or as a consequence, for example, in the fruits of things, etc.

§20. Fourth, damage is either the result of malice (that is, of choice) or of fault (that is, the failure to apply the required diligence).

§21. And fifth, it is inflicted either by an act of commission, as in the case of theft or when I lay fire to the property of someone else, or by an act of omission, if I do not extinguish the fire or contain it when that is what I should have done.

§22. Sixth, as far as the act of commission is concerned, either I harm another person immediately by using the physical powers of my body—if, for example, I break another person’s property with my hand or tear it up—or I cause harm using the mediation either of natural causes, such as a sword, a cudgel, or fire, for example, or of humans—if, for example, I order another person to be harmed by my emissaries.

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§23. Seventh, I cause harm either on my own or as an associated cause.

§24. Eighth, this associated cause is either the principal cause, or a minor cause, or an equally important cause [to the others].

§25. All these forms of damage are relevant here and are included in the precept concerning damage and compensation for it.

§26. The sense of this precept is as follows: That he should offer the person who has been harmed some compensation for the damage, no matter how this has been done. He should do so either by the restitution of the thing itself or, if this is not possible, of its value together with all interest.

§27. This illustrates another difference to legal action based on the Lex Aquilia. For that [the Lex Aquilia] does not cover privative damage unless this damage is a consequence, that is, insofar as it presupposes a positive damage.

§28. It [the Lex Aquilia] also does not apply if the damage produces a gain for the person inflicting it. For there the person who has suffered the damage has already been provided for with a special legal action concerning theft, robbery, and the prohibition of unjust force.

§29. To return to the meaning of our precept: concerning the damage that is inflicted by consequence, it has to be noted that the compensation needs to be paid only if I would otherwise probably have received the good that I desire. Thus, if someone has made a servant his heir, and this servant is then killed by someone else in the lifetime of the testator, then the killer will not be required to pay the value of the inheritance to the master. Yet he would be required to do so if he did this after the death of the testator.

§30. Similarly, it must be considered here whether the damage by consequence is my fault. Thus, a person who steals grain will normally not be obliged to compensate a master for the servants who died of hunger because of the lack of grain.

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§31. The lack of either requisite is clear in the example of the fisherman whose nets are stolen and who demands an estimate of the value of the fish which he would have been able to catch had his nets not been stolen.

§32. But if damage is inflicted with malice and cunning, a culprit living in the state of nature is obliged to give the person who has been harmed a security; in civil society he will be obliged to suffer the punishment imposed by the prince.

§33. In the state of nature, however, if the culprit offers compensation and asks for forgiveness, one should accept it and pardon him.

§34. If damage is caused by my fault and there is no contractual obligation, I am nevertheless obliged to offer restitution for the damage, whatever the nature of my fault.

§35. If I withhold something that I owe on the basis of a contract, then I am only obliged to offer compensation to the extent that is specified in the contract. Thus, if by my negligence I damage something that is deposited with me, I will not be required to offer compensation if by the same act of negligence my own property was lost at the same time.

§36. For I am not culpable here because in the case of something deposited with me I am not required to be more careful with other people’s property than my own things.

§37. There is no compensation for an accident, however, if damage is the result neither of choice nor of negligence. As the proverb says, the owner suffers the loss.

§38. Thus, it is unnecessary to add the qualification introduced by the learned that I am required to compensate for an accident that was preceded by my fault or my deceit—if, for example, I transfer something deposited with me to another location against the will of the owner and it is stolen from there by thieves. For here the owner suffers a loss not by Edition: current; Page: [192] accident but by my fault, for I should not have transferred the object to another location.

§39. If a rich man harms a pauper by accident, it will be an appropriate act of generosity to console the poor man with some favor. But this obligation pertains to the following chapter.

§40. In order for someone to be held responsible as an associated cause, he must really be a cause of the damage and have contributed to the total damage or part of it.

§41. Thus, if a person did not contribute anything substantial to the act that led to the damage, did not do anything beforehand to set this act in motion, and did not benefit from it, he will not be required to compensate for the damage, even if he has committed some transgression. This refers, for example, to those people who are delighted by the misfortunes of others, who praise damage that has been perpetrated, who excuse it, who wish for it before it occurs, and who, while it happens, favor it or approve of it.

§42. Among those who are responsible to various degrees for the damage, those who were the principal cause of it are obliged to offer compensation first. If they are not available, then those who went along with it are.

§43. So first those are held responsible who incited the deed by commanding it or by some other means of compulsion. If the perpetrator of the shameful deed could not refuse his services, he will be treated only as the instrument. He who is an accomplice without having been compelled will be held primarily responsible. Then follow all others who contributed something to the deed.

§44. If the same action was committed by several persons, all of whom are culpable to the same degree, each will be held responsible for everything in the case of those actions that are collective, such as laying fire, breaching a dike, and similar actions; in actions which can be divided [among several Edition: current; Page: [193] people], such as bodily injury, each person is responsible for what he did, no matter whether they perpetrated this crime after conspiring to do so or if they did so without a conspiracy.

§45. If, however, I receive full compensation for the damage from one of the persons who were held responsible to varying degrees or who were individually held responsible for an entire action, then the others are free of all obligation, for I am demanding the value of my property, and once I have received it I cannot ask for it another time from another person.

§46. Thus, there are many differences between an obligation to compensate for damage and a punishment since what I have said so far does not apply to punishments. People who praise or approve of a crime, for example, can be punished, and very often those who are responsible for damage to varying degrees are given the same punishment; finally, the punishment of one person does not liberate the others from punishment, which I shall discuss further in its proper place.17

§47. Our precept, therefore, prohibits all kinds of crimes by which others are harmed, such as murder, injury, beating, robbery, theft, fraud, force, and, in its own way, rape and adultery, to the extent that chastity is violated and the husband is burdened with the education of another person’s child. This is so even though it can easily be argued that most of these cases are not covered by the Lex Aquilia.

§48. A person who has committed manslaughter is required to pay the physicians and to pay the expected support to those to whom the deceased owed maintenance. The profit which the deceased could have made had he lived, but which was entirely uncertain, will not be taken into account here, just as the life of a free man will not be (though that of a slave is).

§49. He who has mutilated another will be held similarly responsible for paying the medical expenses and for compensating the mutilated person Edition: current; Page: [194] for the reduction in his gains. Though here too, to be precise, if you abstract from civil laws one must not estimate future gains, which are uncertain, but provide the person injured with the means of living if he has been prevented by his injury from caring for himself in future.

§50. An adulterer and an adulteress must compensate the husband for the cost of raising the child of the adulterous woman. They are not however, I believe, required to pay the legitimate children for the loss of part of their share of the inheritance to the illegitimate child, even if we abstract from the rules of civil law concerning the succession of children from an adulterous relationship to the goods of their parents. This is so partly because they do not suffer damage from the adulterer, but from the will of the parents, partly because thereby legitimate children are deprived of a future gain, which is largely uncertain.

§51. He who has sexual intercourse with a virgin by force or fraud is required to compensate her with the equivalent of what she, having been deflowered, has lost from an expected marriage. This is the case if he marries her or furnishes her with a dowry. She who consents to intercourse must impute the effects to herself. If someone has persuaded a virgin to sleep with him by promising her marriage, he will not be required to marry her, but by the standards of the state of nature already has married her.

§52. A thief and a robber are obliged to return what they have stolen, together with the natural increase and the consequent damage and probable loss of profit, even though they are also compelled to suffer the punishment for theft and robbery in addition to that.

§53. Concerning damages that are caused by our servants or animals without our fault, the Roman laws allowed claiming compensation. This is not derived from our precept, but it is not therefore to be considered a pure invention of civil law. It rests rather on the equity of performing the duties of humanity. I shall discuss these now.

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CHAPTER V: On the Various Duties of Humanity

§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.”

§2. For it is not sufficient for sociality if you only abstain from injuring another and if another person does not suffer. Life is happy and peaceful if we take care of each other so that we are well.

§3. The preservation of equality, however, is the main means to achieving this. Man desires not only that without which he cannot subsist, but needs other goods to live a comfortable life, and he cannot acquire these without the help of other humans. He might also require the help not only of some particular humans but of any humans whatsoever, even lowly ones. Thus, he would sin against equality if he were not prepared to give to others what he himself demands from them.

§4. I have, however, considered this precept to be absolute. You must not be confused by the fact that most of these particular questions presuppose property rights, although every obligation that follows from the division of property belongs to the hypothetical precepts, as we shall explain below.

§5. In any case, it is certain that our precept originally was applicable immediately after the fall from grace, even before the emergence of property Edition: current; Page: [196] rights. The subsequent division of property led to new conclusions, but ones that are to be derived from the same principles as before.

§6. The convenience of another person is promoted either by my possessions or by my deeds.

§7. And this is either with regard to his possessions, so that they are increased or preserved by my efforts.

§8. Or it is without regard to his possessions, if I come to his help against violence from others or if I assist him in correcting his own faults.

§9. These are either faults of the body (when I give advice on sustaining bodily health) or of the mind (when I teach something he does not know, come to his help in other ways by remedying the imperfections of his intellect, restrain him from sins, or correct him in a friendly fashion if he is guilty of a sin).

§10. It is quite clear that these duties of humanity, when the convenience of another person is promoted by my efforts, regardless of his possessions, were already applicable before the division of property.

§11. In the postlapsarian state, therefore, this precept was always very useful, but it is not immediately evident whether this would have applied in the state of innocence.

§12. For I think that the duties which require me to come to the help of another and preserve or increase his possessions with my possessions or my efforts—these duties, I believe, did not exist in that state of innocence, in which the sublime friendship among all meant that there would always have been a community of goods, as will be demonstrated later.18

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§13. From the above examples it is clear that the other duties that require me to come to the help of another in matters other than his possessions presuppose a physical imperfection, or a moral imperfection, either in the person to whom the duty is owed or in others. Such imperfections, however, would have been entirely absent from that state of perfection [before the fall from grace].

§14. That is, unless you wanted to resort to duties the desire for which does not involve any great imperfection, such as showing the way to someone who is lost, allowing him to light his fire with mine, etc. But these are to be considered further elsewhere.19

§15. But the efficacy of our precept is different among those who live in the state of nature and those who live in civil society.

§16. Among the former it normally produces only an imperfect obligation, and thus it differs from the other precepts. Hence, the person who violates this precept is usually called inhumane rather than unjust.

§17. For this precept usually only commands promoting the utility of another person, not meeting his necessities; this is, moreover, a utility, the lack of which could easily be met by others if one particular person did not want to do so. Thus, there was no need for individual humans to be placed under a perfect obligation, but it was more glorious and more appropriate for eliciting the love of others and declaring one’s own love to leave the performance of these duties to human decency and not rely on coercion.

§18. Those duties that involve our labor or some disadvantage to ourselves do not necessarily require us to prefer the convenience of someone else to our own. Instead, this common rule usually applies: true charity begins with oneself. In the state of nature each individual is the best judge of his own convenience; and therefore, whenever anyone demanded such a Edition: current; Page: [198] duty from another who refused it and appealed to his own utility, it was impossible to grant a right of coercion without causing great disturbance to all of mankind.

§19. And what else remains to be said? The preservation of equality itself shows that this precept only imposes an imperfect obligation. All humans are equally obliged to perform such duties on the basis of the common condition of humanity. Therefore, this equality would be violated if a person in need of something tried to force someone else before all others to perform these duties of humanity in a matter that is common to all and without a sufficient reason.

§20. That is what normally takes place. For it could also happen that among those living in a state of nature an obligation to perform the duties of humanity becomes a perfect obligation. But when is this the case? There is a ready response: if those reasons cease which render this obligation ineffective [i.e., imperfect].

§21. There are three conditions for someone to be under a perfect obligation. (1) He who demands the performance of a duty of humanity would perish if he did not receive it. (2) He cannot receive what he desires equally well from others. (3) The person from whom he demands this does not have an identical need. And this is what we have said above, namely that supreme necessity transforms the duties of humanity into perfect rights.

§22. Take one example. Let us imagine that two heads of family from different nations, who are not related to each other in any particular sense and are joined only by the bond of humanity, are shipwrecked in a barren region, and that at the same time the possessions of one of them, which are sufficient to sustain his life and that of his fellow, are washed up on the shore. In that case, he is under a perfect obligation to help his fellow with his abundant supply of goods.

§23. And this concerns the state of nature. In the civil state, however, what I have said does not apply universally. Here superiors can demand Edition: current; Page: [199] the performance of these duties from inferiors on the basis of a perfect right, although, to be accurate, they are then no longer duties of humanity because they are not based on the common condition of mankind but on the particular state of subjection, which usually presupposes a particular pact, and are thus required by the right of command.

§24. Concerning the relations of subjects to each other, these duties continue to be valid, but in such a way that the ruler can for the sake of common utility introduce a law that grants a legal action to him to whom these duties are owed or can by some other means force the person who owes these duties to perform them. Then, however, they again lose the character of duties of humanity.

§25. Finally, the duties of humanity that subjects demand from the ruler qua ruler do indeed retain the nature of an imperfect obligation. In that respect, however, they are no different from the ruler’s other duties, since subjects qua subjects do not have any powers of coercion against rulers.

§26. So much on the duties of humanity in general. We have described their division above, but only in passing and in another connection. There is another division which is not very dissimilar to the previous one and merits a more careful examination. The duties of humanity are either performed without a definite object, that is, without regard to certain humans, or with a definite object, if they are directed toward the utility of certain people.

§27. A person promotes the convenience of others without a definite ob ject if he cultivates his soul and body in order that actions useful to others are possible or if, by his ingenuity, he makes discoveries which benefit human life.

§28. Those, however, violate this duty who learn no honest trade and consider their soul to be nothing but some kind of salt which prevents their body from rotting; they do nothing but eat, drink, sleep, go for walks, and consume the fruits of the earth, and are nothing but idle burdens on the earth.

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§29. Also, nobody must envy those who try to achieve merit with humankind or obstruct their praiseworthy endeavors. If there is no way of matching their achievements, they should preserve their fame and their good reputation, which is the main reward of these labors.

§30. We serve the utility of others in a definite sense either without disadvantage or burden to ourselves or with effort and labor. The former is called common humanity, the latter a favor.

§31. Concerning common humanity, the following axiom should be noted: “He who refuses common humanity to another or envies it is considered exceptionally evil and inhumane.”

§32. This means that he renders himself unworthy of being the recipient of the duties of humanity again.

§33. But when you hear the term exceptionally evil, beware of thinking that even in the absence of a case of necessity you can go to war against someone who refuses this common humanity in the state of nature. For this is repugnant to the principles we have taught concerning the duties of humanity in general, even though this kind of inhumanity can be punished in civil society, as is clear from the above.

§34. The duties that are thereby performed are usually called matters that are without disadvantage to ourselves [res innoxiae utilitatis], such as giving directions to someone who is lost, lighting another person’s fire with my own, allowing someone to draw water from a well, leaving something which I cannot consume on my own to others, etc.

§35. On these observations depends the resolution of various controversies which have been much debated by authors on natural law. (1) Concerning the passage through our territory, both on land and on sea: it is obviously extremely harsh to deny this to individual humans and small groups who seek this passage for a just reason. But if it is a large army, or some other large number of people, the matter is more controversial.

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§36. Yet it seems that the dispute is conducted with more subtlety than usefulness. For the examples produced in this question refer to cases which do not presuppose extreme necessity. Thus, even if this passage had been refused, contrary to the precepts of humanity, to those who sought it, they would have had no [just] cause to go to war as long as this refusal was not accompanied by insults.

§37. Those who deny it cannot be accused of inhumanity if they claim that this passage will not be harmless, because the guarantees that are usually supplied are not sufficient.

§38. (2) Concerning the passage of goods of others through our lands: this case is similar unless these goods are indispensable for sustaining life; then it is just to go to war if someone denies passage.

§39. The right of storage is a different matter. It means that goods passing through our territory can, without violating the duties of humanity, be compelled to stay in our lands even if there is no necessity for it, etc.

§40. (3) As far as customs and their justification are concerned, it is obvious why customs can be levied on the goods that are transported by land across our territory. The reason for raising the usual taxes in rivers is also evident. But in the case of sounds the matter is more difficult.

§41. Although quite substantial reasons can be produced [for raising taxes in sounds], it must be confessed that this kind of maritime tax is far more odious than all others, and so has to be levied with moderation and without greed. It is also easy for one or the other person to claim exemption from this tax.

§42. I cannot automatically consider all those to be inhuman who (4) deny seafarers the right to land on shore and remain there for some time, or who (5) do not want to admit foreigners [into their territory] and extend hospitality to them, as long as they do not expect similar hospitality from foreigners. In either case, there may be good reasons for denying this to them.

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§43. Even less (6) can those be accused of inhumanity who refuse to shelter people who have been expelled from their homes, even if these people offer fair conditions, because receiving them is not a matter of common humanity but a favor. This [shelter] cannot be demanded on the basis of strict law, nor can another person’s territory be entered without paying respects to its ruler, even if the land is uncultivated.

§44. Nor (7) can it be considered a violation of the duties of humanity if someone prohibits trade with another people, whether he prevents them from buying those goods from him which are not necessary for life, or he does not want to buy from them and does not permit them to offer goods for sale in his territory.

§45. Nor (8) does he deserve to be called inhumane who does not want to confirm friendship with a private person or with an entire nation through marriage. Therefore, the refusal of marriage alone will never be a just cause of war unless it has been accompanied by insults.

§46. But (9) it is highly implausible to derive some common right, and thus an obligation for everyone, from the fact that something has been generally permitted to all foreigners and to conclude that it is an insult if one person is then excluded from this permission. Yet it cannot be denied that it is more prudent to explain the reasons for such a refusal, or at least to temper the words of the refusal so that no hidden insult is implied in them.

§47. A favor is when someone gives something to another for free, either out of a particular feeling of benevolence and generosity, or out of some particular affection, or out of pity for someone else’s condition. This favor consists in payments or labor which meet the other person’s needs or are particularly useful to him.

§48. Others have already discussed what must be observed in the dispensation of favors with respect to the person giving and the person receiving Edition: current; Page: [203] and with respect to the way in which this is done and other circumstances. This cannot be subjected to exact rules because the variety of circumstances is too great.

§49. However, while humans are generally obliged to perform the duties of humanity toward each other, the degree of obligation is greater for him who has experienced not a general act of humanity but a favor. For then it is a matter of gratitude and is the counterpart to a favor.

§50. Gratitude, however, is when he who accepts the favor shows that it is accepted by him and favors the giver for this reason and seeks an opportunity to do the same or more to the extent that he is capable of doing so.

§51. The need for this virtue is so great that if it did not exist, all kindness and trust among humans would disappear, as would all benevolence; nor would anyone do anything for free or make any attempt at gaining another person’s benevolence.

§52. Although, therefore, an ungrateful mind in itself does not cause an injury, the ungrateful person is considered more loathsome and detestable than the unjust person because he cannot be persuaded by favors, which soften even wild beasts, to conceive feelings of humanity.

§53. Ingratitude, however, is twofold. One is minor, which only denies the duties of humanity; the other is major ingratitude, which in addition causes harm to the benefactor.

§54. Minor ingratitude is a refusal to perform either the common duties of humanity or favors. We shall call the former singular, the latter common ingratitude.

§55. Major ingratitude is a cause of war, and there is no doubt that it is a cause for legal action in civil society or aggravates a legal action that has already been initiated.

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§56. It is asked whether legal action is possible on the basis of minor ingratitude, which is not a cause for war. I believe that such action should not be allowed easily. But there is no doubt it can be allowed and among some nations has been allowed.

§57. That is, if this minor ingratitude is singular. In a case of common ingratitude, however, such an action is not really possible.

§58. But you should note the following: if a legal action is allowed in a case of singular ingratitude, then it is no longer gratitude to perform the common duties of humanity by granting a favor.

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CHAPTER VI: On the Duty of Persons Forming an Agreement

§1. The fourth particular precept derived from the state of humanity and the second of the affirmative [precepts] is: “Keep your promises.”

§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 because of the condition of the other person who asks for it, and partly because of the thing that is desired.20 Moreover, once conflict has erupted among humans in the state of corruption, this cannot be settled by any other means than agreements.

§3. Agreements, however, are mainly concluded in order for one person to impose a perfect obligation on another, who would otherwise be under only an imperfect obligation, based on the need to perform the duties of humanity, and we enter these agreements indiscriminately with all kinds of humans. Thus, I say, it is obvious that the peace of mankind, Edition: current; Page: [206] and in particular the preservation of equality, require that faith is kept in promises.

§4. An agreement is the consensus of two people on the decision either to give or do something.

§5. And this is either gratuitous, if only one person places himself under an obligation, or mutual, if both do so.

§6. The immediate cause of an agreement is consensus, namely mutual consensus, even if the agreement itself is not mutual.

§7. On the part of the person placing an obligation on himself it is called a promise, on the part of the other an acceptance.

§8. A promise is either perfect or imperfect.

§9. A perfect promise is a declaration that I want to be bound in such a way that the other person may demand what has been promised to him as something that is owed to him from me.

§10. The promise is imperfect if I declare that I want to be bound in such a way that the other person cannot demand the fulfillment of the promise from me, as is the case in the promises of patrons.

§11. These [that is, perfect and imperfect promises] must not be confused with a bare statement, when I tell another person about my current intention of furthering his well-being, but do so in such a way that I do not want to oblige myself to it. That is clearly not relevant here.

§12. Thus, a promise is required to produce an obligation, for without it nobody can restrict the liberty of an equal against his will. Likewise, there is no agreement without an acceptance by the other side, because nobody can impose [his promise] on an unwilling person.

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§13. Thus, if a promise is not accepted, the person who gave the promise loses none of his right over what he offered, because he who sets up an agreement does not intend to leave his property derelict.

§14. If a request preceded the promise, this request will be considered to continue until it is expressly revoked. In that case, an acceptance is understood to have been made in advance.

§15. But this is so only if the offer corresponds to the request. For if the offer either exceeds or falls short of this request, an express acceptance is required, because my needs often are not satisfied unless I receive as much as I have asked for.

§16. And this is undoubtedly true in mutual promises. We believe, however, that the same holds for gratuitous promises, though Roman law disagrees, based on the incongruous idea that the smaller sum is included in the larger.21

§17. Each side in an agreement makes known its will either in words or in deeds. The consensus and the agreement based on it are therefore divided into express and tacit.

§18. An express agreement is not difficult to understand: it is one where consensus is indicated by words. But concerning tacit agreements we need to draw some distinctions.

§19. Although tacit consent is one that is declared in deeds, and writers treat tacit and presumed consent as synonyms, presumed consent in fact differs from tacit, according to Roman law. We should therefore take Edition: current; Page: [208] particular care to avoid confusing them, especially since they are often conflated.

§20. Permitted actions which humans use are either signs that are accepted by the common consent of mankind as means of declaring our will, such that any reasonable person who hears of this action immediately infers that I wanted to indicate something specific and determinate by it; or they are not signs accepted by the common consent of mankind for declaring the will, but natural equity requires that an obligation should accompany these actions and follow from them.

§21. The consent that rests on actions of the first kind is tacit, while the consent that is based on an action of the latter kind is called a presumed consent in Roman law, because whoever is a good citizen is presumed to agree to the rules of natural equity.

§22. Thus, a nod shows tacit assent; a signature declares, other things being equal, that I want to release the debtor from his debt; and the demand for food and drink from an innkeeper implies that I also want to pay for it.

§23. On the other hand, conducting a business, entering on an inheritance, and in general all actions that are included in the quasi-contracts of Roman law22 do not imply direct consent to paying the damages caused to the owner of a business, to paying a legacy to the legatees, etc. The rules of natural equity, confirmed by civil laws, create a presumed consent here.

§24. Moreover, presumed and tacit consent differ (1) with regard to the person. He who cannot express his consent expressly cannot do it tacitly either. Thus, the nod of a madman, his signature, demand for food will not produce the said effects.

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§25. Yet madmen are placed under an obligation on the basis of presumed consent when, for example, their affairs are conducted for them.

§26. Indeed, (2) tacit consent binds only those who have declared their consent by their actions. But presumed consent also binds people who have not done anything. Thus, the owner of a business is generally obliged to pay the manager for the costs he has incurred in establishing it even if he does not know [yet] that the business has been established.

§27. Moreover, (3) either of these two kinds of consent is very different from express consent. Concerning tacit consent there is this rule: “It is in vain that we look for tacit consent when the opposite express consent is evident.” The reason is that words are the normal signs of declaring one’s will; actions, however, are extraordinary or supplementary ones.

§28. Thus, if I say that I do not want to assent, do not want to forgive your debt, do not want to pay the innkeeper for his food, then the nod, signature, and demand for food would have no effect.

§29. Presumed consent is an entirely different matter. Even if the manager of a business or an heir immediately and publicly solemnly declare before a notary and witnesses that they do not want to be put under an obligation by conducting the business or accepting the inheritance, this express declaration will be in vain. Thus, here the common axiom applies: A protestation that contradicts the action has no effect.

§30. You see, therefore, (4) that even the unwilling are bound by presumed consent, but only the willing are bound by tacit consent.

§31. Thus, (5) in presumed consent the obligation will come directly from the law; in tacit consent the law operates by means of a consensus.

§32. To put it briefly, (6) tacit consent is truly a form of consent. Presumed consent is improperly called consent. Thus, tacit consent produces Edition: current; Page: [210] true contracts according to Roman law, presumed consent only quasi-contracts.

§33. You should not, however, believe that this only exists in Roman law. For then it would be only a matter of human jurisprudence. Yet it also has some use in divine jurisprudence, which will become particularly clear below when we will examine the duties of children toward parents.

§34. They who lack a will cannot make a promise. These are children, madmen and the mentally confused, and very drunk people.

§35. This does not prevent drunks from being responsible for their transgressions and obliged to suffer punishments. For this obligation, as we shall explain later, comes directly from the law and binds even those who did not act willingly. But the type of obligation discussed in this chapter requires an agreement as an essential condition.

§36. Madness and drunkenness can indeed be easily proved, but there are no accurate universal rules that determine the duration of infancy. Thus, there are good reasons why its determination is left to civil law, which also has the task of providing guardians for adolescents, who are older than infants but whose will is not yet fully formed.

§37. Moreover, there are two parts to consent: understanding and will. Opposed to understanding are error and fraud. The former is when I do not know something (for this is taken in a broad sense and includes ignorance) or think it is different without being deceived by another person; fraud is when my error originates from the deceit of another person or this deceit is at least related to my error.

§38. Roman law has turned the issue of errors in contracts into a complex question, partly because this material does not have its own chapter [in the Corpus Iuris], though it is of everyday importance. Instead, the relevant rules are carelessly scattered among various chapters. In part this is also because the jurists who compiled the Digest often disagreed with Edition: current; Page: [211] each other. This produced a multitude of distinctions between an error concerning the persons and the object of a contract, between the matter and the form of the subject of the contract; also, if something consists of two materials, the question arises whether these are united, so to speak, through confusion or exist separately, or can easily be separated; finally, there is the distinction between the essential nature of the agreement and its contingent features, etc.

§39. But here is not the place to explain Roman law, and, leaving aside civil laws, I also think that it is according to natural equity to reiterate the above rule that an error, when in doubt, should always harm the person who errs.

§40. For everybody must reveal his intentions to another when making a promise, but the cause of the contract, its object, and the person with whom I form a contract generally do not contribute anything to the essence of an agreement. Therefore, there is no reason why my error should be imputed to the other party rather than myself if he did not further it by fraud or guilt. Moreover, if my error causes a disadvantage to another person, there would be ample scope for mental reservations, which, as has been shown in more detail by others, undermine all agreements and promises.23

§41. I nevertheless limit this axiom as follows: unless that circumstance in which I erred has been expressly added to the promise as a condition. For then the other person with whom I have made the agreement has no just occasion to complain about me.

§42. The learned tend to distinguish between gratuitous promises and mutual agreements. Concerning gratuitous promises the following rule Edition: current; Page: [212] is formed: When I postulate something as a condition without which I would not have made the promise, the promise naturally will have no effect without it, because the person promising has not consented absolutely, but on condition. And if this condition is not fulfilled, the promise is nullified.

§43. But if the person making the promise keeps this condition to himself, we do believe that he is responsible for not making it clear. Thus, even if I have been falsely informed that my business has been conducted successfully by you, and I promised you something on that basis, I am bound to it, even after I have detected this lie, as long as you did not lead me by fraudulent means to make my promise. For then this case clearly does not apply.

§44. Just as the case of the soldier who believed a false messenger reporting the death of his sons and instituted another heir in his testament is not relevant here because the interpretation of last wills is different from that of promises.

§45. In mutual promises a distinction is drawn, depending on whether someone has been led by an error to form a contract or whether the error concerns the matter that is the subject of the contract. Concerning the first it must be considered whether the subject [of the contract] is still intact (that is, if no part of the contract has been fulfilled yet) or not (if, for example, what has been promised has already been accepted). In the former case it is fair to be granted an opportunity to withdraw, especially when I have made clear what led me to enter into this agreement. But if the subject is not intact, the person erring cannot insist on the rescission of the contract unless the other person permits it on the grounds of humanity.

§46. We believe, however, that even if the subject is intact, the erring person cannot withdraw. An example is if a head of household is told that his horses at home have perished, tells this to a horse dealer, and buys others from him. Even if the buyer realizes he has been misinformed before the horses are handed over and the money is paid, he must adhere to the contract. The false message was relevant to the cause that led him to enter Edition: current; Page: [213] the contract, but it is not part of the transaction itself unless it was added to the agreement as a condition. After all, a head of household can buy horses, whether he owns others already or not.

§47. Finally, it is a little opaque to say that the agreement is null and void if there is an error concerning the subject of a mutual promise, because the laws for making an agreement were not observed, and not so much because of the error itself. For it is not clear how these laws of an agreement that are referred to here are distinct from the error.

§48. Nor does this point seem necessary for discussing the relevant examples. True, if I stated that I wanted to buy a slave who was an experienced cook and the slave turned out to have no idea of cooking, then the contract is invalid even if the seller is not to blame. The same is true if I bought Davus, yet the vendor, through no fault of his own, gave me Syrus. But here the cause is apparent, because the circumstance in which the error occurred formed a condition of the promise.

§49. Let us continue with fraud. There a distinction must be drawn between fraud by him with whom we entered into a contract and fraud by a third party. In the latter case the agreement is valid, but the third party, who is guilty of fraud, is obliged to compensate us. In the former case it will be up to the victim whether he wants the promise, be it gratuitous or mutual, to be declared null and void, or whether he wants to leave the agreement intact and demand payment for damages.

§50. Nor do we make a distinction whether the fraud was the cause of the contract or incidental to it. That distinction is an invention of Roman law and is intended to illustrate the difference between contracts in good faith and those under strict law, a distinction that is unknown to natural jurisprudence.

§51. Also, according to Roman law the injured party could not declare a contract null and void because of fraud [though he had a right to demand compensation].

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§52. Violence and fear are opposed to the will. It is hardly conceivable that someone can be forced by pure violence to promise something. Words cannot be extracted against a person’s will in the way that limbs can be brought to do something by violence against their will. But if someone forces me to write, or, for example, pushes down my head, the promise will undoubtedly be void according to the general rules concerning the principle of moral actions.

§53. Fear can be considered in two ways. First, insofar as it is a probable suspicion that we will be deceived by another, either because of his vicious behavior or his declared bad intentions in a current affair. Note the following rules on this matter.

§54. If such fear was present at the time the promise was made, I acted imprudently by making a promise. The promise, however, is valid, nor can it be rescinded on that pretext.

§55. If I have become fearful after making the promise, because of signs that are either new or were previously unknown to me, I will not be compelled to fulfill the promise before the other person has provided adequate protection against fraud.

§56. Another form of fear is the extreme terror of the mind that is a response to a threat of serious harm when we do not want to make a promise or enter an agreement.

§57. If a third party inflicts this fear, the agreements that have been made with the other person because of this fear remain valid.

§58. The promise will even be valid if unjust fear is inflicted on a third party and I, out of pity, promise something concerning this third party to the person inflicting the fear.

§59. If he to whom I make the promise uses fear to force me to make it, then the promise will be valid as long as he does this because he has the authority to command me.

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§60. But if someone who has no authority over me extracts this promise by entirely unjust force, it is a serious question whether this promise entails an obligation.

§61. Some believe that an obligation follows because fear does not remove all consent, but that the person inflicting the fear is nevertheless obliged to make restitution because he has committed a wrong by inflicting fear.

§62. This is not that different from the principle of Roman law that grants him who caused the fear the right to a legal action [to enforce the promise or agreement], but at the same time allows the other person to defend himself against this action on the grounds that the promise was motivated by fear.24

§63. Others believe that this produces no obligation: obligation in agreements is not the result of my consent alone when the other person is prohibited by natural law from accepting my promise; and any obligation that exists must also be balanced against the obligation of the person inflicting the fear to compensate me for the damage I suffered.

§64. Finally, others believe that he who made a promise to the person inflicting the fear is firmly obliged to keep it because natural law dictates that agreements must be kept. The above reasons are no obstacle. Even if he who inflicts fear has no right to do so, he does nevertheless have the right to accept my promise. And so his right, which he has accepted from the agreement with myself, corresponds to my obligation. There can also be no case for compensation, since it must be presumed that he who, for example, promises a highwayman a hundred thaler25 has at the same time renounced his right to compensation against the thief on the basis of the injury. Why should he otherwise make a promise to the highwayman?

§65. Among these various opinions I like the first least because it rests on useless subtlety and was used by the Romans mainly to distinguish Edition: current; Page: [216] the offices of the praetor and the judge. Even in Roman law, however, there is a well-known saying by a famous jurist that it makes no difference whether someone has no right to a legal action or whether an exception is made on the grounds of fear.

§66. Between the two others, however, there is a middle way that pleases me. We have already said above that agreements in themselves do not produce an obligation, but are only a means or a necessary cause of an obligation, and that an obligation derives all its force from law. The law which already forbids inflicting force and fear on another person also prohibits the person inflicting the fear from acquiring a right as a consequence. Nor should it be assumed that the law wants to bind the person who made the promise while benefiting him who has broken the law. Thus, it will be easy to respond to the reasons for the third opinion.

§67. In order that our opinion be better understood, we posit (1) that it is morally certain that he who causes the fear did not have the right to do so; (2) that the fear is of a present danger, that it is strong enough to influence a steadfast man, and that it can be avoided only by making this promise; (3) that the promise made out of fear has not been confirmed after the fear has ceased either by express words or by actions that imply subsequent consent.

§68. We can, therefore, easily infer that we are talking about promises that have been made, for example, to (1) a highwayman, (2) who is acting as such, (3) under the influence of fear. For if you make an agreement with a highwayman without the fear of present danger, or when this danger is over, there can be no doubt that there is an obligation because of the lack of the second and third prerequisites.

§69. You will also be under an obligation if you have entered into an agreement with someone who defeated you in war. This is not so much because the second requisite is usually absent, but mainly because of the lack of the first requisite. For even if the defeated side, for example, was convinced of the justice of its struggle, only that which can be demonstrated Edition: current; Page: [217] to others is said to be morally certain, since not being [just] and not appearing to be just are here virtually the same.

§70. The victor, however, will never lack pretexts having some appearance of justice and will draw other nations to his side. Among equals, therefore, justice and injustice are unsuitable remedies for resolving controversies, so war was invented as a sort of extraordinary remedy for restoring peace. The belligerents, as a compromise, leave the decision to the luck of war.

§71. Nevertheless, this compromise rests not so much on their tacit as on their presumed consent, and on the necessity of natural law. For unless war is ended by agreements of this kind, sociality and the peace of humankind would be disturbed forever. What do I say? The war between two parties would eventually lead to a war of all against all.

§72. It is undeniable that he who offers a peaceful agreement instead of the war sought by the other side, who deplores war, and who is then forced to accept unfair conditions of peace is not prohibited from protesting on the grounds of fear before the peace has been signed, or from seeking redress for the injury later when there is an opportunity to do so. But this must be done cautiously: the peace must be palpably unfair, and the two other conditions mentioned above must be present.

§73. But what shall we do about public enemies, who are often promised immunity or even more than that by princes in order to prevent civil wars? Princes who break the peace are generally in bad repute; yet the cause of the public enemy is without question and evidently unjust since we have often said that in a society of unequal members the inferior never has the right of coercing the superior through war, even if he has suffered an injustice from him.

§74. But it is easy to reply that the thief and the public enemy are completely different matters. The former cannot produce even the slightest legal pretext. But the public enemy can often claim that the prince has done either him or the commonwealth an injustice. And so he is often Edition: current; Page: [218] not destitute of all right, but only chooses the wrong means to exercise his right. Also, it is often unclear whether the state is purely monarchical or whether only the form of administration is monarchical.26 Thus, it will not be obvious which of the two belligerents in such a war is the superior and which of them the inferior.

§75. That is perhaps what Cicero was referring to when he said that it was no fraud not to pay robbers the money they had been promised in return for sparing their victim’s life.27 For the pirate is not a public enemy, but the common enemy of all. No faith needs to be kept with him, nor common oath. We shall discuss oaths later.

§76. If this reason by itself is not sufficient, you could add that in those promises that are made to public enemies, there is usually no fear of an immediate danger, which may even affect a steadfast man, but of a war the outcome of which is still uncertain, etc.

§77. Thus, I should think that if a public enemy suddenly attacks his king without previously waging war and forces him under threat of death or something similar to come to an agreement, then this agreement produces an obligation no more than the promise made to a pirate does. So much on consent.

§78. Yet we can only promise those things that are within our power and subject to our will, and this promise tends to produce an obligation which usually presupposes this rule.

§79. It follows then (1) that nobody can oblige himself to something impossible with his promise. He who makes such promises and he who accepts Edition: current; Page: [219] them both show signs not of sound understanding, but of extreme foolishness.

§80. That is, unless he to whom the promise is made did not know that the promise was impossible to fulfill, and the person making the promise did know it was beyond his power.

§81. For somethings are impossible for all humans, such as flying or touching the sky with a finger. Some are impossible for a few people only, such as procreating or giving a thousand or a hundred thaler, etc. The above qualification applies to the latter cases.

§82. The person making the promise will not be released from all obligation if he promises something possible which later becomes impossible, either through the fraud or fault of the person promising or even by accident, though the degree of obligation varies depending on the kind of guilt or accident.

§83. Thus Hobbes’s opinion is not universally true, but subject to many limitations: agreements do not oblige actually to fulfill a promise, but only to make the best possible effort to do so.28

§84. Is it impossible for someone to promise not to resist the infliction of mortal injuries? It will be more appropriate to discuss this below when we talk about punishments.

§85. (2) Nobody can bind himself by an agreement to do something prohibited by the laws. The legislator does not contradict himself, and if he already has commanded a certain action, he cannot approve the contrary decision by the contracting parties without contradicting himself. Therefore, this kind of agreement is not permitted, even if it is not beyond the natural powers of the parties.

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§86. For that reason nobody is required to fulfill a promise to do something despicable, not only when nothing has happened yet. Even after the other party has perpetrated the shameful deed, the person who made the promise is not bound to pay him the reward or an indemnity.

§87. But if you have already paid the reward for the shameful deed, no matter whether the deed has been done or not, you will not be able to demand it back from the person who accepted the promise. For in an equal cause the condition of the possessor is the stronger, and the person who made the promise bears the responsibility for his turpitude.

§88. Unless, that is, the turpitude is that of the accepting person alone, even leaving aside Roman law. In that case, the above reasons no longer apply.

§89. (3) Nobody can promise what belongs to someone else. For these things are not subject to our will, nor is it within our power to give them.

§90. The promise to give another person’s possession is not valid. But there are some contracts concerning other people’s possessions, those that regulate their administration, safekeeping, use, and similar matters.

§91. (4) It is the same with other people’s actions when these are not subject to our direction. If they are subject to our direction, then they are treated like our possessions as far as agreements are concerned.

§92. Thus, he who promises that another person will do something will not be bound by that promise unless circumstances show the meaning of the promise to be that he will make an effort to ensure that the other person fulfills what has been promised. Then he will be bound to make every morally possible effort that the promise be fulfilled.

§93. If he promises to make a third party do something for me, he will be considered under an obligation to render any payment which the third party has failed to make.

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§94. (5) Finally we cannot form valid agreements concerning our actions or possessions over which another person has already acquired a right. For these are exempt from our will.

§95. Unless, perhaps, the other person’s right has expired. The person making the promise, however, should not wish for such a case if it is shameful to do so. Thus, it is valid to promise to do work for someone on condition that work for another person has been completed, just as it is valid to promise to rent out our buildings once the present tenancy has ended. But it is shameful to promise subjection for as long as the commonwealth, to which there already is an obligation, does not suffer from a civil war or perish by some other way.

§96. Thus, conditional agreements concerning marriage which one spouse makes during the lifetime of the other are declared invalid among Christian princes—not without reason—and punishments have been decreed for those who form such agreements.

§97. This is also why, in Roman law, the promises of a free man and of a commonwealth would be invalid if they were made on condition that he become a slave or it [the commonwealth] become private property.29

§98. We shall now turn to the form of the promise: this is either pure, or for a certain time, or on condition. The first grants a full right, the second an incomplete right¸ until the relevant date arrives; the last grants not even an incomplete right, but only a hope that he will be required to fulfill it. The only effect is that the person who makes the promise cannot withdraw before the condition is met.

§99. The difference, therefore, between the two latter forms of promise lies mainly in this: he who fulfills his part of the promise by mistake before the condition of the promise is met can demand that this be reversed. But Edition: current; Page: [222] this does not apply to him who fulfills his part of a promise before the deadline.

§100. A promise for a certain period and a conditional promise differ in that a date is a future point in time and it is certain that and when it will happen. In the case of a condition, however, it is uncertain whether and when it will come about; at least, it is uncertain whether it will happen.

§101. Therefore, a promise is made on condition when the validity of the promise is linked to an outcome, depending on a specific event.

§102. Those conditions that are tacitly included in all promises, even pure ones, are not properly called conditions—for example, I will give you a hundred thaler if no greater force prevents me, if the world still exists, etc.

§103. Likewise, the conditions referring to the present or the past [are not real conditions] unless the tacit meaning here is “if that, which refers to the present or the past, is found to be the case.”

§104. Also conditions which will necessarily be met, for example, “if there will be a day tomorrow.”

§105. And since the same holds true for the contrary, impossible conditions are also not true conditions.

§106. Yet there is the following difference between these and the other improper conditions: the latter usually create a pure promise; in the case of an impossible condition, however, what we have said about impossible promises applies here too.

§107. Nor do we distinguish between promises and last wills if we leave aside the rules of civil laws, though these have decided, quite rightly, that these [impossible conditions] are not considered to be valid in last wills, to prevent humans from being mocked by pointless actions.

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§108. Shameful conditions, however, when they depend on an uncertain outcome, cannot be considered improper conditions, and they are not a form of impossible conditions, as jurists have argued, for they have not properly understood a law in the Digest30—though here the same is true concerning their effectiveness as in the case of illicit promises.

§109. Thus, a condition has to be possible to be valid. This the doctors of civil law unanimously divide into conditions that are within the powers of a person, those depending on chance, and those that are mixed.31 I doubt, however, whether this distinction will be of much use outside civil law.

§110. For as we have shown elsewhere, the mixed conditions and those within the powers of a person differ little, even according to ancient jurists; and the differences between the conditions depending on chance and the conditions within the powers of a person are partly mere subtlety, and partly imply the rule that the condition within the powers of a person is considered to be fulfilled if the person who was meant to fulfill the promise can do no more to fulfill it.

§111. But this axiom is not only subject to many qualifications by the Roman jurists concerning its particular applications (it even gave rise to a remarkable controversy).32 It will also hardly work even if you leave aside civil laws, because the question of whether the person who made the promise and added the condition was referring mainly to the will of the person responsible for fulfilling the promise or to a contingent event, which is always part of such conditions, must be determined from other circumstances. For if he referred to the contingent event, then this axiom would not be applicable.

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§112. If the condition does not depend on the pure will of the person making the promise, but on a case which presupposes the will of the person making the promise, then an obligation only emerges when this case has come into existence. The person making the promise will not be under an indiscriminate obligation to do anything that is morally acceptable to fulfill the promise.

§113. A place is usually added to the promises, an addition that also produces an incomplete right, until enough time has elapsed for this place to be conveniently reached.

§114. We also promise something either directly to a particular person or through others, whom we use as messengers and interpreters of our will. Jurists call these mandataries and procurators.

§115. If these act in good faith and do not exceed the clear limits of their mandate, they place us under a firm obligation toward those with whom they have formed an agreement in our name.

§116. But ministers whom I have chosen to make promises in my name must not be confused with those whose function is only to signify a promise, such as, for example, couriers who have been entrusted with a letter explaining our will. For if the minister dies before he has signified our will to the relevant person, we can revoke our promise, even if the other party found out about our promise from a third party and accepted it. This is not the case when a courier dies and he receives the letter from someone else.

§117. There is another difference: if I have used a courier, my revocation is valid as long as I revoke my promise before it has been accepted by the other party, even if the courier knew nothing of the revocation. But if I have used a mandatary, then the revocation will be invalid unless it has been made known to the mandatary.

§118. But I think that here various cases need to be distinguished, especially whether the revocation is directed to the mandatary or to him to Edition: current; Page: [225] whom the promise was made. Also, whether this revocation reached the person with whom the agreement was made before the acceptance of the promise.

§119. There is also another question: can I accept a promise in the name of another person, who has given me no mandate? You cannot remove all scruples just by drawing the following distinction, whether the promise is made as follows: “I promise with you as a witness to give this to Sejus”; or like this: “I promise to you that I will give this to Sejus.” But in the latter case a distinction needs to be drawn, whether he to whom the promise was made in this fashion did or did not have an interest that the third party should receive his due. The Roman jurists did not neglect this distinction.33

§120. But this is less doubtful: if the person the promise was made to dies before he has accepted the promise, the acceptance cannot be made against my will by his heirs, even if it is certain that the contracting parties are normally assumed to have wanted to care for their heirs.

§121. There follows the division of agreements. The passive division, which created trouble for Roman jurists and their interpreters, is that between pacts in the strict sense and contracts. But since either of these two kinds of agreement presupposes the division of properties and the existence of prices, their discussion will have to be postponed until later.

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CHAPTER VII: On the Duty of Man Concerning Speech

§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, like theses from a hypothesis.

§2. Thus, you will not be surprised if here and in the other chapters where the reasons for axioms will be provided, I will often only briefly draw attention to the above or just apply these precepts to particular conclusions. At the same time, in the individual chapters I will mainly pay attention to the purpose of the particular matters which are discussed because this is of the greatest importance in moral matters.

§3. Concerning speech, however, we need first to say something about its definition and origin, before we provide the precepts concerning the duty of humans in speaking.

§4. Speech is an articulate sound by which humans communicate their thoughts to each other and reason among themselves.

§5. Speech is, however, described as an articulate sound, to distinguish it from voice in general and from sound. Sound is whatever the ears hear as a result of the collision between material bodies. Voice is a sound uttered by animals. Speech is proper to humans. Beasts, however, usually have an Edition: current; Page: [227] inarticulate, very rarely an articulate, voice or rather a voice that is halfway between articulate and inarticulate—parrots, for example, etc. But speech is always articulate.

§6. I leave aside the distinction between voice as a signal of something pleasant and unpleasant and speech as a signal of something useful and harmful, honest and despicable. This is already implied by the previous distinction, although I would prefer it if the good and the useful were omitted here or extended to voice as well as speech.

§7. Thus, speech is specific to humans. It distinguishes them from beasts and reflects humans’ use of reason, as even Aristotle agrees. Cicero’s words deserve to be noted. Nature persuades humans by the force of reason to unite with each other, to use a common language and live in a society.34 Moreover, the bond of society is reason and speech, which by teaching, learning, communicating, discussing, and judging unites humans with each other and joins them in a kind of natural society.35

§8. You see here that reason, speech, and society are linked to each other by Cicero. Our observations above on the explanation of sociality illustrate this further.36

§9. When Paul, the teacher of the Gentiles, turns them away from lies and urges them to accept the truth, he produces no other reason than that humans are united by their fellowship with each other, not physically, of course, but morally and socially.37

§10. The primary aim of speech, therefore, is to allow humans to reason with each other; reasoning, however, requires tranquillity. The general Edition: current; Page: [228] precept concerning the duty of speakers, therefore, is: use speech and the other signs of the mind to further common tranquillity.

§11. But there is no doubt about that. You surely desire more specific axioms, which I shall provide immediately by showing the difference between speech and the other signs of the mind. This difference is to be found in the term voice.

§12. The signs of things are either natural or arbitrary. The former are derived from natural properties of things and pertain to natural philosophers or medics. Thus, smoke is a sign of fire, dawn of the coming day, pallor of disease or love, etc., flight of fear.

§13. Arbitrary signs are those having meaning on the basis of human decisions that are not made by individuals in isolation but are based on general consent.

§14. The purpose of all these signs is to communicate the thoughts of one person to another. But man cannot look into the mind of another man, and the natural signs of the mind are very few. They are also often suppressed by those who are skillful deceivers. Sociality then would not have been provided for if anyone could have imposed whatever meaning he wanted to on signs. Humans, therefore, had to agree on this by mutual consent.

§15. But these arbitrary signs are either common to several nations or specific to some.

§16. Each is derived from the use of a great variety of different things,38 and in particular from the use and variation of the human voice.

§17. These latter signs based on the use of speech are especially suitable for preserving sociality. Without speech there can be no, or only a very crude form of, society, peace, and discipline among humans.

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§18. And imagine two humans being forced by some necessity to be together although neither is versed in the language of the other. Beasts of different kinds are more easily united in sociable relationships than they are, even though they are humans. The great similarity of their nature will not help them at all in associating with each other if they cannot communicate the meanings of their mind only because of the diversity of their languages. Man will rather spend time with his dog than with another man who speaks a different tongue.

§19. This is not to mention the countless inconveniences that cannot but result from equivocation caused by other signs or differences in language. An Italian, for example, who was unable to bear the hot water in a bath, shouted “caldo”39 and was nearly boiled to death when the German bath keeper thought he was complaining about the cold and poured hot water over him. Similarly, a German in a remote province who displayed his teeth and made pitiful sounds asking for some food had his teeth extracted because his host thought he suffered from a toothache.

§20. Moreover, while Gentiles, who do not have the benefit of the history of Creation, have said various things about the origin of speech, we know from Scripture that God implanted it into the first humans at the very beginning. Those born from them then learned it by hearing it until the construction of the tower of Babel gave rise to the diversity of languages. Here the pagans agree, saying that speech has its power of meaning not by nature or from some intrinsic necessity, but purely by human agreement and establishment.

§21. Unless, perhaps, you wanted to object on the basis of the contrary arguments of Cratylus reported by Plato, which are, however, vain and have already been refuted by others in greater detail.40

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§22. But just as the meaning of other signs of the mind rests on human convention, so speech too derives its meaning from the same source.

§23. But this convention is either general, and applies to an entire people using the same language for matters that are commonly known or used, or it is special, used by experts and erudite people discussing matters that are popularly unknown and remote from everyday life.

§24. But although we are here concerned mainly with the duties of speech (as the chapter title indicates), what we have said shows that this is also applicable to the other signs of the mind. Therefore, we have joined these to speech in a general axiom.

§25. Letters occupy a kind of intermediate position between these two, and for this reason civil law sometimes considers them words, sometimes deeds. However, letters are closer to words and speech, of which they are the image, just as speech is an image of the mind.

§26. Having said this, I see a threefold classification of the special precepts which are part of man’s duty concerning speech. The first of these concerns the act of speaking, the second the choice of signs, the third the conformity of the mind with the signs.

§27. Because speech discloses the mind, three questions follow from this: (1) whether my thoughts are to be revealed to another, (2) whether in declaring these thoughts we should use signs invented by others, and (3) whether signs must correspond with thoughts.

§28. We shall answer these three questions most easily by drawing on the four particular and absolute precepts and the general precept which we have derived from the purpose of speech.

§29. This leads to the following negative precept concerning the first question: “Be silent if by your speech others are offended or suffer undeserved harm, or if humanity, an agreement, or peace in general demand it.”

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§30. This precept covers verbal insults, as well as boasting, adulation, and buffoonery, but above all garrulousness.

§31. While these are to be avoided by everyone, public servants, military commanders, legates, councilors, etc., must be particularly averse to them.

§32. The corresponding affirmative precept commands the following: “Speak whenever humanity or an agreement obliges you to do so, or if silence exposes another person to contempt or harm, or disturbs the peace.”

§33. Others add: “Speak whenever the honor of God requires it.” But this limitation is to some extent already tacitly included in our rule, insofar as all precepts of natural law presuppose the inner reverence for God as their first principle. Thus, we abstain from adding this limitation expressly because these people are mainly concerned with religious worship and with solving the extremely difficult question: when is a confession of faith necessary, and when is it not? As this goes beyond the remit of jurisprudence, we leave this decision to the theologians.

§34. They, however, sin against this precept who are silent about dangers to the commonwealth, a fellow citizen, or their neighbor; who, having acquired information, do not report it accurately; and who do not chastise those entrusted to their care whenever it is necessary.

§35. Although we assume two particular precepts concerning the first question, we will be content with a single, negative one in the second: “Do not use words in another meaning than that agreed upon.”

§36. The reason for the difference is that taciturnity, even if it does not benefit sociality more than speech, [in this case] benefits it in equal measure. It is different if someone wants to use words in a particular meaning which has not been agreed upon.

§37. Others can easily be offended if a word is used in this particular meaning, and the utility of humankind would then not be furthered. Edition: current; Page: [232] And, as is clear from the above, it constitutes a violation of the express or tacit agreement on which all speech rests.

§38. I am aware that nobody (least of all philosophers) has been deprived of the power to create new words. But this license is irrelevant to our rule since it, too, rests on an express or tacit agreement. We will explain elsewhere how far this license extends.

§39. There remains the third question. The affirmative precept there is “Speak your thoughts if humanity, an agreement, or common peace requires you to.”

§40. Opposed to this is the negative precept: “Abstain from lying whenever someone is hurt or suffers contempt as a result and peace among humans is disturbed.”

§41. Indeed, I am bound to reveal my thoughts to another and speak what is in my mind whenever the person I am dealing with has a perfect or an imperfect right to it. But this occurs when one of these four absolute precepts requires it.

§42. And as speech has been invented for our sake, I will be allowed to form my speech in such a way that it expresses something different from what I have in my mind when it is of some considerable use to me and nobody else’s right is violated.

§43. And if we intend to further the utility of others whom we would harm by speaking the truth, then it will be allowed to use fiction and oblique phrases. For he who wants to and must benefit another person should not do this in a way that would prevent him from achieving that aim.

§44. Even if nature wants speech to be the interpreter of the mind, it wants this to be done with prudence and, other things being equal, also wants mutual and indeed common welfare to be provided for. And since the latter is the primary purpose of speech, by which the other [purpose] Edition: current; Page: [233] is measured, the intention to deceive cannot be against the law of nature, when it directly tends toward this end [that is, common welfare].

§45. Moreover, philosophers agree that truth requires us to give every person his due by speaking the truth. Thus, on the other hand, it only prohibits that falsehood by which another, innocent person is deceived.

§46. But, you say, everyone has a perpetual right not to be deceived by another. Thus, lying will always be despicable.

§47. Yet I shall deny the universality of this objection as readily as you defend it. Others have also responded to the arguments by those who disagree.41

§48. It is clear from what has been said what truth is, insofar as it is a virtue, and what the vice opposed to it is, which is called mendacity.

§49. Metaphysical truth is different from logical truth and ethical truth. The first concerns the state of being, insofar as it refers to existence. The second concerns the state of a proposition, insofar as that which is asserted or denied about a subject is true independently of human cognition. Opposed to the former is metaphysical falsehood, a state of nonbeing (or, to be more precise, nothing is opposed to metaphysical truth, since nonbeing has no predicates). Opposed to the latter is a false proposition.

§50. Moreover, just as logical truth consists in the conformity of a proposition with its object outside the mind, so, too, ethical truth consists in the conformity of external signs, particularly speech, with the mind.

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§51. But beware of immediately equating ethical truth with moral virtue. Ethics also deals with indifferent actions, not just honest or despicable ones.

§52. Therefore, this truth deserves the appellation of virtue only insofar as this conformity of words with the mind renders everyone his due. With this addition, this kind of truth can be called truth in justice.

§53. The Peripatetics have generally used this addition in order to distinguish this virtue from homiletic truth,42 which we have deliberately omitted because many commentators consider the homiletic virtues to be either nonessential or an ornament of virtues rather than actual virtues.

§54. Homiletic truth, in particular, seems to be one of the virtues of the intellect, rather than [one of] the moral virtues. Therefore, according also to Aristotle’s judgment, a braggart is useless (mãtaiow) rather than evil (kakÒw).43

§55. The braggart sins not so much because he tells falsehoods about himself (except to the extent that this speech causes injury to another, which is opposed to truth in justice), but because he talks a lot about himself, whether what he says is true or not.

§56. Hence, it is evident that it is not accurate to define homiletic truth as the virtue of preserving the right measure when speaking the truth about oneself in everyday conversation. It should have been said that it preserves the right measure in speaking of oneself in general.

§57. Or rather, the term truth has been incongruously imposed on this virtue, since its essence does not consist in conformity of signs with the mind.

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§58. False speech is opposed to ethical truth generally speaking. False speech consists in the disagreement between the speech and the mind of a person who intends to deceive another.

§59. Opposed to truth in justice is mendacity, which deserves this name if this discrepancy [between speech and mind] and the intention to deceive lead to the violation of another person’s right.

§60. Therefore, it is clear that false speech and mendacity are not synonyms. All mendacity is despicable, while false speech is sometimes morally indifferent.

§61. So they who consider any discrepancy between signs and the mind to be mendacity improperly extend the term of the species to that of the genus. And when they consider this mendacity always to be a vice, they mistakenly apply the properties of the species to that of the genus.

§62. Moreover, it is clumsy to say that a veracious man can be mendacious but cannot deceive. For to deceive and to be mendacious are synonyms. But mendacity and false speech are different.

§63. Also, the lies that are commonly called courteous and humorous are not mendacity in the proper sense. Already Luther observed this, saying that polite lies were a particular virtue and form of prudence.

§64. Finally, the fact that some related faithfulness to truthfulness, perfidy to mendacity, is typical of colloquial speech rather than philosophical argument.

§65. It is true that he who keeps promises is commonly said to speak the truth; he who is perfidious, to have lied.

§66. But in philosophical terms faithfulness and perfidy differ from truth as a general concept, since their essence consists in the conformity or disagreement of subsequent actions with the preceding signs of the mind.

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§67. For he who spoke the truth at first can become perfidious later, and he who lied can repent and be faithful.

§68. Closely related to false speech, but not to be confused with it, are simulation and dissimulation. These generally differ from falsehood because the latter is expressed in speech, the former by a deed which is nonverbal.

§69. Like false speech, simulation and dissimulation have the purpose of deceiving and tricking another person.

§70. But simulation and dissimulation differ in that the latter consists in an omission, such as silence, the former in a positive act, the use of other signs apart from speech in such a way that they do not agree with the mind of the person using them.

§71. Since, therefore, simulation is closer to lying, dissimulation closer to the refusal to speak the truth, it is also clear that nothing new is to be expected concerning the justice of either. What we have said above about silence must here be applied to dissimulation; what we have said about lying must be applied to simulation.

§72. It is evident at the same time what is to be thought about the division by jurists of deceit into good and bad, which has been attacked by many and poorly understood. As they defined deceit as “fraud,” they wanted to include lying, simulation, and dissimulation in this term.

§73. And since we have shown that lying can be permissible, as can simulation and dissimulation, there will, therefore, also be a good form of fraud.

§74. Thus, the question concerning the permissibility of deceiving others has been resolved on the basis of the above, more easily and more clearly than if you had distinguished, as others do, between lying and withholding truth (or partial truth), or between lying and ambiguous speech (or some tacit restriction).

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§75. For in part these distinctions conceal an impious and criminal opinion (mental reservation, for example). Others, which look for an excuse in notions of withholding truth and ambiguous speech, are unsuitable to resolving controversies and are subject to the same limitations which we applied to lying. Other authors have discussed this in more detail.

§76. We can easily resolve more particular questions on the basis of the preceding arguments. (1) It is forbidden to lie indiscriminately to children and fools as if they were not free to judge our speech. Since they are as human as we are, we may use fiction and fables only if they benefit from them to a greater degree than from the truth and to the extent that they are incapable of understanding the bare truth.

§77. The same reason offers an excuse for lying if someone (2) uses fiction in speaking to adults for a good purpose and for their own or the common utility when open speech cannot achieve this—if, for example, an innocent person has to be protected, an angry person placated, a sad person consoled, a timid person encouraged, a fastidious person persuaded to take medicine, obstinacy overcome, or an evil plot prevented—as long as everything else is in order (if, for example, this is done without offending God).

§78. (3) Thus, it is permissible to promote the welfare of the commonwealth by using fiction to conceal its secret affairs of state and councils, which it has an interest in keeping from others, or to express an opinion in doubtful and obscure matters that does not reflect what I believe to be true if doing so will help to get at the truth.

§79. What we cannot accept is the belief (4) that it is never a lie when we address a fictive speech to someone who is not deceived, though a third person derives a false opinion from it. The argument here is that I have nothing to do with this third person.

§80. But that opinion is not always true. In daily social intercourse I am usually assumed to have something to do with all those who are present, even if my speech is addressed specifically to one person in the company. Edition: current; Page: [238] And even if we accepted that reasoning, this kind of action, nevertheless, would still be susceptible to the accusation of vice, since lying is not the only sin that is related to speech.

§81. We must, therefore, take great care here that there is no violation of the prohibition concerning the first question above. Thus, we need to add many qualifications here which have already been explained with great precision by others.44

§82. Above all, if someone wants to deflect the irritating and harmful curiosity of others, he must take care that other innocent persons do not suffer as a result, and that he who is unrestrainedly curious is afflicted with a small and moderately unpleasant evil rather than with real harm.

§83. But (5) since we may harm enemies by open force, we may also mislead them with stories or a fictive speech, as long as this is not done in pacts entered into with the enemy; for in concluding these we move away from the state of hostility to some degree, even if not completely.

§84. This limitation also applies to those other cases in which we said lying was permitted. As we just pointed out, the precept to keep faith is different from that to speak the truth.

§85. It is more difficult to determine whether (6) an accused can deny a crime he is accused of, or extricate himself by using false arguments, without being guilty of lying. I believe he cannot, not only if this concerns the payment of a debt or compensation, but also if the main issue is the imposition of a punishment.

§86. For it is generally accepted that the judge has the right and the ability to extract the truth from the accused by any means. Thus, it automatically follows (from the above argument on speaking the truth, whenever the person I am dealing with has a right to it) that the accused is under Edition: current; Page: [239] an obligation to tell the judge the truth. Moreover, right and obligation, as was shown at the beginning of these Institutes, are correlates, neither of which can exist without the other.

§87. So I do not understand the common argument that not every right that concerns the exercise of some action has a corresponding obligation, especially if its object is a human being, as in the present case.

§88. This is so especially as the judge has the right to extract this truth from the accused—not just the right not to be prevented from doing so by others. This right relates, above all, to the accused himself.

§89. And indeed the commonwealth would suffer too much harm if delinquents did not feel the pinpricks of conscience that urged them to confess their crimes. Otherwise, punishments would achieve their purpose very rarely, since witnesses and other forms of proof are usually lacking in these kinds of actions, which are commonly hidden, and the use of torture, supposing this hypothesis to be true, is entirely impermissible.

§90. The assertion, however, that the commonwealth has little interest in punishing a crime that has not been noticed after compensation has been paid for the damage, and that it can be covered up and excused—I doubt whether this conforms to good politics. The main purpose of punishment is the correction of others, which presupposes knowledge of the crime. However, even if the crimes are not known to the judge, they are usually known to accomplices or other citizens; and even if their statements are insufficient for a trial, they are sufficient to cause a lot of nuisance [to the criminal].

§91. I also do not understand (it must at least happen extremely rarely) how the crime cannot be considered known once compensation has been paid. Either someone confesses to the crime by paying for the damage, or he refuses restitution entirely by denying the crime.

§92. It is no objection to our assertion to say that because nobody is bound to offer himself up for punishment or indict himself the denial of a crime Edition: current; Page: [240] is no sin. Apart from the fact that the antecedent clause merits further discussion, the consequence does not seem to follow from it.

§93. For the rule, put forward by others, that I am allowed to present something in a different light for the same reason that I am allowed not to say anything about it at all, and on the other hand that I cannot conceal whatever cannot be presented other than the way it really is—this rule has been repeatedly challenged. It has also often been emphasized that speaking and speaking the truth belong to different precepts. In general, there are many things you must not refuse to disclose if you are asked for them, even though you are not obliged to disclose them voluntarily.

§94. Moreover, it is argued that a punishment must be inflicted on someone who does not want to suffer it. We must, however, voluntarily accept that to which we are obliged. Yet man by nature abhors punishments; that presupposes that the delinquent does not have an obligation to suffer punishment. This must be discussed later when we shall examine this question in particular.

§95. Yet the advocate hired by the defendant acts in his interest and must use the same means of defense as the defendant. It is therefore evident that he cannot legitimately produce false legal opinions or fictitious verdicts in criminal cases or instruct the defendant to deny the crime, or even take on his case with a clear conscience if the defendant has secretly confessed the crime to him.

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CHAPTER VIII: On the Duty of Those Taking an Oath

§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 to remove doubt and disbelief concerning our intention in someone with whom we have business.

§2. For when an omnipotent and omniscient witness and avenger is invoked as a witness, there is a strong presumption of truth and faithfulness. Nobody is easily believed to be so impious that he would dare to bring down the most severe wrath of God on himself.

§3. If, therefore, we attempted to derive the duties concerning oaths from the state of innocence, it would be as foolish as trying to draw water from fire.

§4. But we must not believe that an oath is a corrupt invention of corrupt nature. We have no reason to do so, and in Scripture oaths are commanded more than once and used by the most holy men.

§5. Contrary arguments from Scripture, designed to show that oaths are prohibited, have been refuted by others some time ago.45

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§6. We define an oath as the deliberate invocation of God as a witness and guarantor, to confirm a statement or a promise.

§7. The purpose of every oath on the part of the person who has an oath sworn to himself is to place others under a firmer obligation to speak the truth or keep a promise, using their fear of an omnipotent and omniscient God, whose wrath they draw upon themselves if they knowingly deceive in an oath. This is done if the immediate fear of humans is not strong enough, because they do not respect their power or hope to be able to escape or to deceive them.

§8. Therefore, if the doctrine of atheism is contrary to any precept of divine law (though it is contrary to all, as is clear from the first book), it is directly contrary to the rules that we have established concerning the duty of oath takers.

§9. But on the part of him who takes an oath the purpose of an oath is certainty and faith, to reassure the other person involved concerning the truth of what has been affirmed or denied, or to affirm that the person taking the oath will fulfill what he has promised.

§10. The apostle expressed this elegantly when he said that an oath for confirmation is to them an end of all strife.46 In any case he who accepts the oath is reassured because his doubts are settled. That is, unless you wanted to say that the apostle was referring in particular to the oath that is used to resolve controversies, which is called a litis decisorium [decision of a controversy].

§11. The categorization of an oath is based on its purpose. Certain things are added to promises and pacts to make sure they are observed with even greater reverence. But some are used to support a statement concerning an unknown fact. The former oath is called promissory, the latter assertory.

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§12. The promissory oath is used to guarantee future events, the assertory oath past events.

§13. All types of oaths based on the distinctions by the ancient Roman jurists can be reduced to these two types. For example, [Roman jurists distinguished] the oath of a witness who swears an oath about somebody else’s action and an oath that concerns his own affairs and resolves a disputed question. And this could be done with the agreement of the other side, either outside court (that is, voluntarily) or in court (that is, under compulsion); or it could be done by command of the judge, which is called judicial. The particular forms of that are the purgatory oath and the suppletory oath.47 But all these kinds of oaths are forms of assertory oaths.

§14. At the same time, the purpose of oaths tells us that oaths are accessory speech. This already presupposes another assertion or promise, which it confirms. The usefulness of this observation will become clear in many ways and should therefore be carefully noted.

§15. If we abstract from civil law, therefore, there is little use for the division of oaths into confirmatory, which is added to a separate promise, and promissory, when something is directly promised to the person the oath was made to. For it is obvious from what we have said previously that each of these two oaths is promissory, and each confirms another obligation, whether it precedes it or accompanies it.

§16. Nor is an oath superfluous if it has been added to an already firm obligation. Even if all nonatheists believe that God punishes the violation of promises, including those that are not supported by an oath, it is still useful to remind them that someone who directly provokes God’s wrath Edition: current; Page: [244] and deliberately cuts himself off from God’s grace and mercy will be punished even more severely.

§17. We have said that the purpose of an oath is affirmation. We, therefore, must not believe that an oath makes those acts binding that were previously uncertain, that were not obligatory, or that produced no obligation. Rather, everything we have said above concerning promises and speech in general is relevant here too.

§18. Thus, oaths concerning illicit matters are not valid. And an existing valid obligation cannot be avoided by a subsequent oath, nor can a right based on this obligation be annulled by an oath. It is, for example, pointless to swear not to repay a debt.

§19. It is absurd to invoke divine anger if you have not done anything that God has forbidden and threatened to punish. To do so is to turn the reverence for God into a sort of mockery.

§20. Grotius goes beyond the previous argument and says that even if an oath does not involve something that is not illicit itself, the oath is invalid if a greater good is prevented by it. Nearly all of the examples he produces, however, concern illicit matters. An example is someone who swears never to do another person any good, etc.48

§21. For even if an obligation to perform certain duties is imperfect, it is a grave sin to refuse categorically to follow this imperfect obligation.

§22. In order to understand the meaning of Grotius’s extension [of the concept of oaths] let us suppose a case that did in fact occur: a person was so angry that a relative married a woman of lower rank that he swore not to attend their wedding celebrations and never to invite them to his house. The oath was about something that was not itself illicit, but it prevented Edition: current; Page: [245] a greater moral good (namely, deeper friendship, which is greatly encouraged by intimate conversation).

§23. In such cases, however, I find it more plausible to adopt the view of those who believe that this oath should be kept, especially if someone declares that by this oath he did not intend to refuse to perform the other duties of daily life and charity toward another person, nor to turn away someone who appears spontaneously and without an invitation at his house.

§24. Likewise, an oath concerning something impossible is not binding.

§25. And, generally speaking, the addition of an oath does not change the nature and substance of a promise or a contract. Nor does an oath turn a conditional promise into an unconditional one, and it does not make a promise binding after the basis on which the promise was made to the other person no longer exists.

§26. Formal acceptance is also required in promises backed by an oath, and so the person to whom the promise was made can choose not to insist on it.

§27. Moreover, leaving aside civil laws, a contract supported by an oath can be rescinded if the reasons for doing so are such that they are also sufficient for rescission in the state of nature. Nonage alone is no such reason.

§28. Also, just as in promises a deliberate intention is required on the part of the person making a promise, so the same is necessary on the part of a person taking an oath. Thus, an oath is not binding if someone just quotes an oath or recites it to another using the first person.

§29. Furthermore, just as a promise extracted by deceit is not binding, so an oath that another tricked me into taking does not impose an obligation on my conscience.

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§30. A simple error is a different matter unless the subject of the error was included as a condition for the oath. We have also discussed this above in the case of simple pacts.49

§31. If a robber extracted an oath through fear, this would have no other effect than that which results from a promise made to a pirate without an oath, as we have shown above.

§32. Oaths taken on the soul of another person are not entirely to be rejected. In matters allowing for an agent (not, therefore, when giving testimony) they bind the person by whose soul the oath was taken as firmly as pure contracts do. I fear, however, that these [oaths] do not fulfill the purpose of oaths as well as those which are taken by the person actually making the promise.

§33. Civil laws can, however, determine that certain oaths which would be invalid in the state of nature because of an offense caused to the person taking the oath remain valid in the civil state. Such laws assume that everybody can renounce something done in his favor and the person taking the oath will therefore have thought seriously whether the subject of the oath is to his advantage or not.

§34. Some people assert the validity of similar oaths, such as those extracted by deceit or fear, on the grounds that the oath includes a promise to God and promises toward God have to be kept, even in the state of nature. Others, however, argue quite rightly that this is incompatible with the nature of oaths.

§35. It is one thing to promise God that I will pay a robber, for example, quite another to make a promise to a robber and invoke God in doing so.

§36. For the presumption is that the most holy God will not have accepted an invocation that favors a godless rascal who violates every duty of sociality.

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§37. So we have gradually been led to a discussion of the form of oaths, which depends on the purpose we have explained above.

§38. This form is either the one required according to the opinion of all nations, namely, that God is invoked as a witness and avenger; or it is something added to this by individual nations in order to strengthen the authority of oaths by solemn rituals and symbols.

§39. I have no objection if, for the sake of teaching, you call the latter the accidental, the former the essential form of an oath.

§40. The latter [the accidental form] mainly pertains to civil law. The former, however, is one we need to analyze further. It contains two elements. God is, first, invoked as witness of the truth and then as an avenger—of lies in assertory oaths and of perfidy in promissory oaths.

§41. Both are necessary for the purpose of an oath. Invoking God as a witness would, on its own, not be sufficient to instill the fear of God that is required for producing trust and certainty in the other person. God also has to be feared as the avenger of perjury, and he could not be feared as such if he were not believed to be a witness.

§42. It is not necessary for both elements to be explicit in the oath. Each tacitly implies the other. When the most just God is invoked as witness, the person invoking him also fears his vengeance; and when the person swearing implores God as omniscient punisher, he is also convinced that he is a witness.

§43. We often find it mentioned that pagans invoked created beings in oaths. They were presumably misled by a vain belief that such created beings were God. For example, you read of pagans swearing by the stars.

§44. Or they may have believed that people, when swearing, tacitly asked God to seek revenge for perjury on the things dearest to them. Examples are oaths taken on one’s own head, one’s soul (which was common then Edition: current; Page: [248] and still is), the health of a son, or the ruler’s head, protective deity, or welfare, as was common usage among the ancients.

§45. You can, therefore, divide oaths into express and tacit. The former applies if you swear to God directly; the latter if you invoke divine revenge against a created being that you do not consider divine.

§46. But if we see oaths taken on the most insignificant created beings, these are to be considered jokes rather than true oaths, since many people adopted the bad habit of using oaths as an ornament and supplement to speech. Examples are Socrates’ oaths taken on his dog, his goose, his plane tree, and Zeno’s oaths on his caper bush, etc. They did not swear by these in order to swear by the gods, but in order not to swear by the gods.

§47. We have now come to the effects of swearing an oath. Insofar as we are dealing with affirmative oaths, the effects are the same as those we discussed in the previous chapter concerning speech. Insofar as oaths are promissory, they are the same as those discussed above concerning keeping faith. As we noted above, this follows from the fact that oaths are mere additions to speech. Therefore, if we disregard civil laws, oaths do not produce any new or special obligation.

§48. It is, therefore, quite true that all deceit and caviling or fraudulent interpretation must be kept out of oaths. But the main reason is not so much that this is the effect of invoking God, whom nobody can deceive and whom nobody mocks with impunity. For cavil must be absent from any assertion and promise. And the examples used by Doctors [of Law] in this matter all show that such cavilers have sinned even without the addition of an oath to their speech.

§49. It is no peculiar feature of oaths that they are not always to be explained in a wide but sometimes in a strict sense, if the subject matter seems to require it. We will emphasize the same rule below, in the general discussion of interpretation.

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§50. But I do not accept the argument that oaths should be interpreted strictly when the oath is to the disadvantage of another and is added not so much to a promise as to threats (on the basis of which nobody acquires any right).

§51. Various cases of this rule are put forward. For example, the Israelites had sworn that they would not give their daughters to the Benjaminites, but they allowed these [the daughters] to be kidnapped by them. Athanaricus had sworn to his father that he would not step onto the Romans’ soil, but then met them in the middle of a river. The Achaeans were bound by an oath not to annul their decrees, but asked the Romans to change them as they saw fit. The emperor Aurelian, having sworn that he would not allow even the dogs to live after conquering a city, sent out his soldiers to kill all dogs [and not the inhabitants]. Themison, having promised to execute the commands of the Etearch, had the latter’s daughter thrown into the sea, as her father had ordered, but then pulled her out again immediately, unharmed. Timoleon swore to Milarch that he would not accuse him in Syracuse, but then ordered him to be killed instantly, etc.50

§52. Yet I fear it is possible to reply in all these cases that these are caviling interpretations, which do not reflect the intention of those who took the oath when they took it, let alone that of those to whom the oath was made.

§53. In any interpretation we must take into account the time at which the promise or the statement was made. But concerning an oath in particular, Edition: current; Page: [250] that meaning must be considered valid which is assumed by the person swearing the oath.

§54. Yet I do not believe that we should therefore label all the deeds we have listed above, or indeed similar deeds, unjust. It seems that we should rather proceed as follows in determining whether they are just or not. The oaths concern either a licit or an illicit matter. If it is the former, this cavilling interpretation does not absolve the persons who took the oath from their obligation. If it is the latter, this [caviling] interpretation is to be considered superfluous rather than illicit, for if they neglected to do what they were required to do according to the oath, they should not be considered to have broken their word. For the oath they swore and did not keep concerned an illicit action.

§55. Thus, the oath of the Israelites, for example, was made from just zeal and should have been kept, rather than rendered void by caviling—that is, unless you wanted to argue that they were not allowed to exterminate the tribe of Benjamin by keeping this oath. But there are several possible replies to this objection.

§56. Similarly, Aurelian could have omitted the killing of the dogs, Themison the submersion in the sea, since Aurelian’s oath concerned an illicit action, that is, the destruction of a city following his victory, and Etearchus had demanded an unjust action from Themison.

§57. For it is observed, quite rightly, that an oath, like promises backed by an oath, includes tacit restrictions and limitations which flow from the nature of the matter itself. Thus, if I have granted someone the right to demand whatever he wants, I am not bound by this oath if he asks for something absurd or unjust. These considerations can easily be applied to the oath of Themison.

§58. So, you will say, an oath has no specific effect of its own? I think it has none, unless perhaps you wanted to say that the invocation of God suggests that he who commits perjury must expect a harsher punishment Edition: current; Page: [251] than those who lied in other circumstances or deceived without having taken an oath.

§59. An oath does, however, differ from pure promises in the following way. The latter bind the heirs of a person who made a promise—even more so with a promise backed by an oath before men (it is another matter if the promise was in the form of a vow). The oath clause itself, however, and the invocation of God’s name do not extend to any person other than to him who took the oath. The heir, therefore, cannot be considered to have committed perjury if he does not keep the oath made by the deceased.

§60. The effect of oaths, however, as of all promises, is annulled by relaxation or dispensation. We use the general definition [of dispensation], namely, that it is an action by which either the superior of the person who took the oath declares the oath to be void because of an inability to fulfill it or the superior of the person to whom the promise was made waives the obligation on specific grounds.

§61. For as we have said above, nobody is required to do something impossible. If, therefore, someone who is subject to another person’s power takes an oath, this is always with the tacit condition that the right of the superior must not be violated.

§62. He [the superior], however, will commit an injustice if he grants a dispensation when neither his rights nor the rights of the society over which he presides have been violated.

§63. And so does he who, without just cause, deprives his subject of a right based on an oath. A crime committed by the person to whom the promise was made and the public interest are considered just causes.

§64. Moreover, he who is the superior neither of the person who took the oath nor of the person to whom the oath was made cannot grant dispensation. From this alone it is evident whether the Roman pope does or does Edition: current; Page: [252] not have the right to grant dispensation concerning the oaths of kings and princes.

§65. An entreaty has some affinity with an oath. This is an act whereby a person appeals to God or something else that is very dear to him and highly revered, and beseeches another to speak the truth. An example is the high priest who adjured Christ to say truthfully whether he was the son of God.51

§66. This action must not be confused with calling to witness, which is also related to an oath and by which a person affirms, through comparison with something dear to himself, that the truth is no less close to his heart than what he has named. Joseph, for example, did this by referring to the life of the pharaoh, Elisha to the life of Elijah.52

§67. Finally, there are certain promises that are not oaths, and yet have the same effect as oaths among humans. This is either because of the person making the promise (e.g., if a prince promises “by his princely word”) or it is because of the special custom of a certain people. Thus, among the Persians, if the parties sealed a promise by giving each other the right hand, this created the firmest kind of obligation.

§68. And that is enough concerning the theory of oaths. It remains to list the precepts on the duty of humans concerning oaths. Now, we consider an oath insofar as it is either an addition to normal speech or based in a particular clause in which there is a formalized appeal to the name of God.

§69. In the former case the general precept for both promissory and assertory oaths (but especially the latter) is: “Speak the truth”; that is, take care that external signs are an accurate reflection of your mind.

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§70. Moreover, even if there is no oath, whenever we respond to the question of another person or make a formal declaration at his request, our response or declaration is related to his question or request. Therefore, our response should not be separated from the mind and the intention of the person making the demand or posing the question.

§71. Therefore, it is urgently necessary in oaths that we understand the words of the oath in the sense in which we think the other person to whom the oath was made would probably understand them. Thus, ambiguity of wording must be avoided to the extent that this is possible.

§72. For we do not speak or take oaths to ourselves but to others with whom we interact, and thus we speak in order to be understood and swear in order that another person can be all the more assured of our sincerity.

§73. Therefore, it is up to him to whom the oath is made to formulate the oath and to declare how he wants its words to be understood.

§74. A specific precept that only pertains to promissory oaths is “Keep the promises you have made.”

§75. Each of the two precepts bans perjury, which in a broad sense includes lying under oath, as well as the violation of an oath through perfidy.

§76. This more extensive meaning [of perjury] is accepted in modern usage, although perjury was once used by some to describe only perfidy in a strict sense, while certain papist writers used the term perjury for mere lies.

§77. False testimony is an example of lying under oath. It is the same if someone swears and nevertheless has no intention of considering himself under an obligation as a result.

§78. The violation of an oath through perfidy occurs not only when someone refuses directly to fulfill an obligation based on an oath. It also takes Edition: current; Page: [254] place when the person making the promise implores the superior of the person to whom the oath was made to release him from his obligation.

§79. An example is if someone has sworn to observe the statutes of a university, but later pleads with the superior to be granted a dispensation from them.

§80. This kind of dispensation may be accepted without the taint of perfidy if the superior freely grants it. But the person who made the promise does not have the right to ask for this dispensation because it is obviously contrary to the intention of him to whom the promise was made.

§81. I also believe that those people are not exempt from the charge of perjury who have sworn to fulfill their duty faithfully, but have then willfully neglected some part of it, even if subsequently they submitted themselves to punishment. A thief is a thief even if he has suffered a beating.

§82. Those who have sworn an oath concerning a particular action, but then act contrary to it, are even greater perjurers.

§83. This is so unless someone in his promise expressly reserved the right to either fulfill his promise or pay a fine for acting contrary to it.

§84. Or if those who prescribe the formula of the oath either interpret it themselves or allow it to be interpreted publicly in such a way that it allows acting contrary to it without the taint of perjury as long as the guilty person accepts the punishment. This is the usual interpretation of the students’ oath, promising that they will not take revenge for injuries inflicted on them but will appeal to the magistrate for help.

§85. Two precepts deserve to be noted concerning the latter case,53 according to which an oath consists in the invocation of God: (1) “Do not swear casually,” and (2) “Swear only by God.”

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§86. The former follows directly from the purpose of the oath, the latter directly from its form.

§87. The assertory oath was introduced to make it possible to reach a decision on an unclear fact that cannot be demonstrated in any other way. Therefore, an oath is careless when no proof is required, when the matter can easily be demonstrated by other means, or when there is no suitable object of proof.

§88. In questions of right and wrong, therefore, oaths are not permissible, and it would be inappropriate and careless to use an oath to prove the truth of a legal doctrine.

§89. It is a serious violation of this precept to use an oath as a mere rhetorical ornament, and to treat it only as an expression, without intending to confirm one’s words with this oath. Thus, Hobbes says quite rightly that these solemn declarations are not oaths, but an abuse of the name of God and the result of a bad habit, when their only purpose is to state something especially emphatically.54

§90. We have shown above that lies may sometimes be justified. In those cases he who adds an oath to such a lie is not to be considered a perjurer. He does, however, seriously violate the precept about avoiding carelessness because there is no reason to combine such lies with an oath.

§91. The first precept concerns assertory oaths. But it also applies to promissory oaths. For he who swears to do something impossible swears carelessly. A relevant example here is someone who swears to do something he knows has been prohibited by his superior.

§92. The other precept, insofar as it is to be derived from natural law, means nothing other than that one should swear by God to the extent that he can be known from natural law.

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§93. But insofar as universal positive law inculcates the belief in the true God and his worship, it compensates for the defects of natural reason. This law says: “Do not swear by any other than the true God.”

§94. Therefore, it is contrary to natural law to swear by something one does not consider to be God because this does not meet the purpose of an oath; and it is contrary to divine law and the precepts of religion to swear by a false God whom one considers to be the true one. This is enough for now since further discussion of religious worship in the form of oaths is a matter for the theologians.

§95. The precepts of natural law concerning oaths must not be confused with religious precepts since an oath is a form of divine worship, and for that reason divine worship is sometimes also described as an oath.

§96. Moreover, he who swears by something that he does not believe to be God is swearing a false oath rather than committing perjury, but he who swears by a false God whom he believes to be true swears a valid oath, and therefore commits perjury if he swears falsely or insincerely.

§97. Similarly, a person is, for example, guilty of lèse majesté if he plans to murder his prince and by mistake injures his [the prince’s] sworn enemy.

§98. The answer to the question whether it is possible to swear by creatures depends on what has been said. Either these are used in entreaties55 or in calling upon someone as a witness. These are not relevant here because they are not oaths.

§99. They [the creatures] may be mentioned in the oath as something by which God must punish us. Then it will be a tacit oath.56

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§100. Or they are believed to have something divine about them. Then divine revelation forbids a Christian to take such an oath because it would imply idolatry.

§101. They may also be attributed some divine quality, not on the basis of what they are but by virtue of some relationship to God, because they are consecrated or belong to God. For example, one might swear by a temple, an altar, etc. Or one might swear by something that represents the Creator, such as the heavens. These formulas do not excuse the person who uses them and are therefore better avoided. But if they are used, then he who deceives by using them is to be considered a perjurer.

§102. It is a different matter with a formula that is commonly used among us: So help me God, and his word, or the sacred gospel. That is neither impious nor unjust.

§103. The precepts we have discussed so far, and that are to be observed by the person taking an oath, conform to the three commonly accepted companions of an oath: namely, truth, that no lie be told; justice, that faith be kept, and that one swear only by God; and judgment, to prevent frivolous oaths.

§104. But he to whom the oath is made also needs to be admonished: “Do not demand an oath for no good reason.” For that would again be contrary to the purpose of an oath and to the reverence owed to God, which is the foundation of all divine laws, as we have shown above.

§105. Are we, therefore, allowed to accept an oath from someone who we know will commit perjury? Usually a distinction is drawn between a judge and a litigant: it is said that the former is allowed to do this because it is part of his job, but if the litigant does it he sins.

§106. I would accept this opinion since the carelessness is entirely on the side of the person accepting an oath from someone who will certainly Edition: current; Page: [258] commit perjury. It is pointless to demand it. But first it needs to be asked whether the question itself is in fact appropriate.

§107. For I deny that there can be certain knowledge of another person’s future perjury. Not only is there no certain knowledge of future events, but it is also impossible in particular for a human, who cannot see into other people’s hearts, to know those things that depend on the decision of another.

§108. It is not enough if the person concerned has already often committed perjury, for he could now reform himself.

§109. If he openly confesses that he will commit perjury, he does not provide a reliable indication since these threats may be used to avoid having to take an oath.

§110. I would, therefore, rather treat this question as curious, but useless, except in some special cases (e.g., what if he who has to take an oath openly professes atheism? But that is not likely).

§111. Another question is more fruitful: is it permissible to demand an oath from an infidel when he swears by false gods? Quite a few argue that such an oath can be accepted, but not demanded from an idolater.

§112. Yet I believe it can even be demanded as long as the oath is correct in all other respects. For the formula of the oath must always be adapted to the religious conviction favored by the person taking the oath.

§113. This follows from the purpose of an oath. For it is pointless to force someone to swear by a God in whom he does not believe and whom he therefore does not fear.

§114. Thus, since the law of nature presents no obstacles, this opinion can be defended until it is shown that the precepts of religion require something else, which has not been shown so far. Other authors have responded to the objections to his view.

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CHAPTER IX: On the Duty Concerning Things and Their Ownership

§1. Having discussed speech, we must now continue with ownership [dominium]. Its most important effect is that on the power to use things, and we will first have to make a few general comments on that.

§2. Now, this power can be considered with respect to the Creator, with respect to things, or with respect to other humans.

§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.

§4. We think the matter can be most easily resolved if we separate, first of all, the light of reason from that of revelation and consider the nature of this power more carefully.

§5. It is clear, however, from the hypotheses we have demonstrated before that this power does not deserve to be called a right with respect to God, over whom man has no right at all.

§6. Thus, we need not show with what right man exercises this power. That would be a foolish question. But it is sufficient if there are no objections that undermine this power.

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§7. For there is no reason why something should not be considered permissible if it is not prohibited by any law.

§8. Since man, therefore, has the natural power to use other created things, this power is to be regarded as indifferent until a restriction is put forward on the basis of either nature or revelation.

§9. In addition, divine permission can also be demonstrated to some degree from reasoning. For at present man needs the other creatures to feed himself and to defend himself against the evils that threaten to destroy him physically. Thus, it follows that God also wants to grant humans the right to use these things, without which life, which is God’s gift, cannot be preserved.

§10. But that is limited proof and only concerns that use which is necessary to man. However, since man very often uses other creatures for his pleasure and a more convenient life, it will be difficult to progress along the line of argument that places the burden of proof on us.

§11. For man does not need all creatures. And the opinion of Aristotle, Lucian, and other pagans does not deserve praise.57 According to them other things would have been created in vain if man were not allowed to use them. For, so they say, the machine of the world could have been adorned far more sparingly if only those things had been created which were of some use to man.

§12. So let us rather stick with the argument of natural liberty, especially since we see that the revelation of sacred Scripture does not contradict this opinion. It is possible, rather, to prove from it, on very firm grounds, that such a special concession has been made to man allowing him to use created things.

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§13. And these include not only the bare necessities (which, in the state of innocence, were far fewer and restricted to nourishment, since defense against the other evils now threatening physical well-being was superfluous) but also those things required for convenience and pleasure.

§14. As we have noted before, this grant, however, does not have the force of a precept but only confers a privilege that one can use freely. Man is not compelled to use it by all means. For otherwise man would sin against the divine law if he left any animal at liberty or neglected an opportunity to capture it. No sane person would argue this.

§15. From our general comments on the duties of man toward God follows a negative precept: “Do not use creatures to insult the Creator.” For this use would conflict with the internal worship of God which is the foundation of all laws of nature.

§16. This precept punishes above all the abuse of creatures when these are destroyed pointlessly and frivolously. It implies contempt, in the human sense, of the most benign Creator if I destroy his gift for no purpose.

§17. You could mention here that God wanted to extend the peace of the seventh day to beasts as well. But this refers to the precepts of [revealed] religion, and so should be left to the theologians.

§18. With respect to the created things which humans use, this use does not deserve to be termed a right because man and the other creatures do not share the same law.

§19. Yet, the term wrong does not apply either because man is under no obligation to other creatures.

§20. This is true no matter if they are plants or created beings that are inferior to plants [e.g., stones], about [both of] which there is no doubt, or if they enjoy locomotive powers as beasts do.

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§21. Even if there are many objections in the case of beasts, we do not need to spend time refuting them. In part these [objections] are directed against the arguments with which others wanted to prove a right to kill these [creatures]. As you see, we do not take it upon ourselves to prove this. And in part they also rest on the false hypothesis of philosophers who attribute reason to beasts and at the same time apply the precept not to harm others to beasts. But we have banished reason from beasts to such a degree that we have not even left them with sense perception, properly speaking, which would presuppose some form of cognition and thus thought.58

§22. It is clear that God does not suffer an injustice if beasts are killed, because God is the author of this relationship between men and beasts, which is devoid of right.

§23. I would, therefore, not want to compare the state of man in relation to beasts with that of a state of war. Even if there is some similarity between these two states, there are, nevertheless, many respects in which they are different. For one thing, wars among humans are neither universal, nor perpetual, nor do they grant unlimited freedom. Moreover, war is an extraordinary state that has its origin in the violation of a right. The state between humans and beasts, however, is an ordinary one and does not presuppose any violation of a right since there is no community of right between them.

§24. We must now continue with a consideration of the power humans have of using creatures in relation to other humans. Here it is worth noting that the person using this power is under an obligation toward others, and other humans are under an obligation to this person.

§25. The obligation of the person using others is either indirect—that is, mediate—and reflects the degree to which man owes his preservation to Edition: current; Page: [263] sociality, or it is direct and extends to the degree that man is under an immediate obligation to others.

§26. The indirect obligation is contained in this precept: “Use other creatures in such a way that by using them you do not ruin the endowments of your mind and body.” This follows from what we have said above concerning the duties of man toward himself.

§27. As far as the moral endowments of the mind are concerned, we must take care that the killing of animals, for example, does not accustom the mind to cruelty. Plutarch and others observed that humans who had become used to killing beasts went on to murder humans and wage war.59 It is also worth noting that Scripture describes Nimrod as a hunter.60 The Pythagoreans, by contrast, urged gentleness toward beasts as well as the contemplation of love and compassion toward humans.61

§28. It is, therefore, not without reason that the Athenians punished the person who had skinned a ram alive, and the Spartans did the same to someone who gouged the eyes out of quails and then released them.62

§29. He who abandons or weakens his rational faculties through excessive food or drink sins with respect to the natural goods of the mind.

§30. Finally, as far as the goods of the body are concerned, we must abstain from various kinds of intemperance.

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§31. Thus, Pythagoras, when he forbade killing animals, wanted, among other reasons, to accustom his disciples to a better diet, which would improve bodily health and intellectual acuity.

§32. The direct obligation of man toward others is as follows: “Use creatures in such a way that you preserve the equality with other humans.” That is, you should not abuse these creatures for the sake of pride; you should not harm others by their use; you should serve others by using them; you should keep promises related to this. These injunctions can be easily understood on the basis of the above discussions.

§33. I now pass over in silence the particular interest of the commonwealth to which man has to adapt himself. For it is in the interest of the commonwealth that nobody uses his property badly. Often an interruption in the use of something furthers the utility of the commonwealth.

§34. The obligation of others toward the user is contained in the precept that nobody should prevent another from making use of creatures.

§35. Corresponding to this obligation is the right of the user by virtue of which he can make use of creatures without being disturbed. This right is called a common ownership insofar as it admits others to the use of the same thing. Insofar as it gives the right to prevent others from using the same thing, it is called dominion. We shall say more about that now.

§36. In order to avoid debating like blindfolded gladiators, we have to start by explaining the relevant terms. It is clear from what has been said that by dominion we understand a right extending only to things, insofar as the word thing is distinguished from legal actions that only concern persons, but this concept does not completely capture the essence of dominion.

§37. It is, therefore, more accurate to say that it is a right by which a thing is specific to a particular person. Property is when the substance of Edition: current; Page: [265] something belongs to someone in such a way that it does not belong to anyone else.

§38. For property and dominion here are synonyms even if authors sometimes understand them in different ways.

§39. Property or dominion, however, in something is either that of a single person or of more than one person. The former is called dominion in the simple or strict sense, for example, in the sense that Titius is the owner of his house. The latter is usually termed common dominion or common ownership. Thus the heirs of Titius have common ownership of the house.

§40. Common ownership is when the substance of something belongs to someone as much as it belongs to another.

§41. It is either negative, when the thing belongs to several people in such a way that in effect it is not the exclusive property of anyone (neither a single person nor several individuals). Thus, according to Roman law, wild beasts are in common ownership.

§42. Or it is positive when the thing belongs to several people in such a way that it is the property or dominion of several people jointly. See the example of Titius’s heirs.

§43. Thus, dominion in the simple sense is the purest form of dominion because it excludes all common ownership, and negative common ownership is the purest form of common ownership because it excludes all dominion.

§44. But positive common ownership and common dominion, as you can see, are identical so that they are illustrated by one and the same example and differ only in the concepts used. For when the two heirs of Titius are considered in relation to each other and individually, their inheritance is Edition: current; Page: [266] in common. When they are considered jointly and in relation to others who are not heirs, their inheritance is their property.

§45. Things themselves, however, are described in different ways, depending on these three rights. They are either owned by an individual, or held in common, or nobody’s property.

§46. It appears, therefore, that the terms property and common ownership involve relations of one person to another person. It follows that if there were only one human being in the world and he could use created beings according to his whim, neither the term dominion (since there would be nobody whom he could prevent from using these) nor common ownership (since there would be nobody who would be able to use these at the same time) would be applicable.

§47. And how else could it be? Dominion and common ownership are forms of right. Above, however, we have shown that humans have no right unless there are other humans.

§48. For even if you relate this single human being to God, it would not be appropriate to use the term dominion, not only because in this respect God is the owner of all creatures, but because man has no right toward God.

§49. If you consider the relation to beasts, the situation is similar because there is no common right or obligation between humans and beasts.

§50. I prefer calling a spade a spade rather than terming this power of one man to use other creatures a kind of dominion that is not unlimited in the formal sense but, as the result of concession, a potential rather than actual dominion.63 Even if this expression, properly explained, is acceptable, still there is no doubt that the term dominion is applied improperly here, and the doctrine of dominion, it seems, can be explained more perspicuously without it.

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§51. Even if there are several people, you will not be able to use the term dominion in either the simple sense or in that of common ownership if there is no other person whom the owners could justifiably exclude from the use of a certain thing.

§52. The inheritance of Titius, for example, is the [common] property of two heirs when, as I have said, they are considered in relation to others. If these heirs were alone in the world, there would no longer be a common dominion, but the inheritance would only be common to both of them. So a positive common ownership would become a negative common ownership.

§53. Some people distinguish between common and private ownership. But it is clear from these descriptions that this is the same division as ours, according to which we say that dominion is either simple or common. That is, unless they, by applying this distinction, confuse common ownership and negative common ownership.

§54. Thus, some do not understand what is meant when those who describe the two forms of dominion in strange ways declare that Adam was granted common dominion by God and that this dominion pertained to the entire human race and was at the same time private, that is, mine, yours, etc.64

§55. For since the entire human race consists of myself, yourself, etc., it is not clear here how private dominion differs from common unless someone wants to take refuge in that sublime controversy over the existence of universals outside the operations of the mind, and to interfere in the bloody war between Nominalists and Realists.65

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§56. Moreover, as dominion in the simple sense and common dominion are mutually exclusive, it is too subtle to say that each of the two forms can be present in one subject, though some have used such subtlety.66

§57. Thus, they formed concepts without knowing jurisprudence (for it is there that the terms dominion and common ownership primarily belong) when they believed that this right according to which I can acquire the property in something is dominion in the proper sense, and therefore divided dominion into potential and actual, though the term potential dominion is like light without illumination.

§58. Having made these comments on the origin of dominion, let us now examine whether in the primeval state of humans there was dominion or common ownership, and if the latter, whether it was positive or negative.

§59. You will, however, notice immediately that this question, like all other controversies concerning the origin of things or rights, is a historical question. And should you want to discuss this without drawing on revelation at all, you have to form conjectures and argue in a roundabout way, though others who are very erudite have already shown how this controversy would be resolved in the case of a dispute with a pagan who had a different idea of the primeval state. The conclusions they reach are the same as ours, or are different only in minor respects.

§60. We, however, are writing in the company of Christians, and we have already shown above that statements of historical fact can be taken from sacred history without mixing up the different disciplines, even when we are developing arguments on natural law. Thus, we shall not hesitate to look for our definitions in divine revelation, but we shall at the same time observe the rules of sound interpretation which right reason provides us with.

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§61. God spoke to the first parents: Subject the earth to yourselves and rule over the beasts. Thereby they accepted the power to subject inferior creatures to themselves, with the effect that they knew God would not oppose their use of other creatures for their own purposes. But this power is only improperly known as dominion, no matter whether you say that it was granted by God to Adam before the creation of Eve, or to Adam and Eve simultaneously.

§62. For it does not deserve to be called a right, let alone dominion or common ownership, with respect to beasts or other inferior creatures. Similarly, as long as Adam was alone, it could only be called a potential future right with respect to other humans, but this is not the proper meaning of the word as such.

§63. When Eve had been created, however, right in the proper sense emerged. But you cannot infer from this that there was therefore also dominion, because common ownership is also a right.

§64. Thus, I do not remember anyone declaring that Adam would have had any just reason to prevent Eve from using creatures, or that Eve would have required special permission from Adam to exercise this right. It would, therefore, be inept if we wanted to describe Adam’s right at that time as dominion in the strict sense. But there must have been common ownership, and as long as Adam and Eve were alone this was not positive but negative.

§65. Moreover, although the first humans did not produce children in the state of innocence, undoubtedly they would have. Thus, perhaps common dominion might have evolved from the negative common ownership of the first parents.

§66. Or perhaps not. For the usual opinion is that the first humans represented their descendants with respect to the divine grant. Therefore, the children would have had the same right as their parents immediately from birth.

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§67. There would also have been no reason why God in this state should have given the parents a prerogative right before the children, since they [the children] were to be born in the same state of perfection. It is instead probable that the benefits conferred on the parents would have pertained to the children, too, since they also partook of the punishment [for original sin].

§68. I think we have also shown that in the state of integrity no paternal government was to be expected. Thus, there was no reason to expect a restriction of the children’s right in using things.

§69. Therefore, the negative common ownership in this state would not have changed as the result of procreation and the increase of the human race, but would only have been extended to other persons.

§70. Whether humans would have remained in this state of common ownership if Adam had not fallen from grace is an interesting question. We do not think it at all likely that this [common ownership] would have been abandoned in favor of a distinction of dominions.

§71. It is a trite proverb that friends share everything. The greater the degree of friendship (and it was the greatest possible), the more likely was common ownership. Thus, we read that there was an analogous situation in the primitive Christian church.

§72. Moreover, there would have been the greatest possible equality, but the distinction of dominions greatly promotes inequality among humans. The distinction of dominions would certainly have created rich and poor.

§73. Nor were there any reasons for doing so [that is, distinguishing dominions]. The earth produced everything spontaneously. Labor was not a burden then. Nature was content with little. Luxury did not exist. There was no quarrel and no envy.

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§74. They err, therefore, who look for the distinction between dominions in the state of innocence because of its perfection, arguing that just as all order conforms to right reason, so would the most beautiful way of possessing things conform perfectly to this state.67

§75. That is as if one said that the present state of the church was more perfect than that of the primitive church, because as charity has declined common ownership has also disappeared.

§76. Nor should one believe that there was complete confusion because of this common ownership in the state of innocence, as if this common right to everything meant that nobody was allowed to use particular things, available to all, for their own benefit, and to use them in such a way that no other person had the right to take these things away after they had been appropriated. Rather, in this negative common ownership there was a certain kind of property, namely, with respect to fruits, the use of which consisted in consumption: if someone wanted to use such fruits as food or drink, they became his property as soon as he had seized them.

§77. It may seem self-contradictory to say that there is property in a state of common ownership, especially negative common ownership, which excludes property.

§78. But it is not. For negative or positive common ownership can remain in place for the whole or its more important parts (that is, what bears fruit), even though there is property in the subordinate parts (that is, the fruits themselves).

§79. Thus emerges the distinction of each kind of common ownership into absolute and modified. I call absolute common ownership that in which there is no property at all; modified, where that is not so.

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§80. Before the first parents consumed any fruits, there was an absolute common ownership. As soon as one [fruit] had been taken for consumption, modified common ownership began.

§81. Beware of using the term absolute to signify a form of common ownership in which there can be no property. For this is impossible. In that respect all common ownership is modified. But with regard to the actions of humans, absolute common ownership has lasted a certain period of time, even if that is very short.

§82. But I have emphasized that in the primeval state dominion emerged from the appropriation of something fungible,68 not through the appropriation of just anything. For if this were something that is not fungible, be it mobile or immobile, then appropriation alone would not confer dominion, but only a momentary use-right for the time of the possession. When this use ceased, others would have an equal right over it, or would have had the right to make use of this thing for their own purposes.

§83. But this momentary right does not deserve to be called property, nor has it, to my knowledge, ever been called that by jurists.

§84. If, for example, Adam lay beneath the shadow of a tree or played with some wild animal, he still did not therefore have the right of property over this tree or beast even if Eve could not have removed him from his place or taken the animal away from him without committing a grave injustice. But if he went away spontaneously or stopped playing, she had the right to take over his spot or the animal.

§85. Thus, if Eve plucked an apple for the sake of eating it, Adam would have had no right to take it away from his wife. He would have had to find another one, and so Eve after taking the apple could have said with Edition: current; Page: [273] every justification that the apple was in her dominion, because she could exclude her husband from its use in perpetuity.

§86. So even though we have called it common ownership when the substance of something pertains to one person in the same way that it pertains to another, and even though common ownership implies an equal right to use a common thing, all of this is to be understood in such a way that the right of individuals over what is held in common does not produce the sort of Hobbesian right of everyone to everything which leads to the deadly state of a general war of all against all.69

§87. It follows that if we abstract from every human agreement and argue on the basis of the general precept to preserve sociality and the common peace of mankind, there can be no such common ownership in which one person can disturb a fellow human being in the use of something that cannot be consumed, or take away something which can be consumed and which the other wants to consume.

§88. The particular precept about preserving equality inculcates the same. For it would undoubtedly be a violation of this precept if someone wanted to drive away another from a spot on which he lay, or wanted to deprive him of something consumable, just so that he could rest on this spot or use this thing.

§89. Finally, this licence cannot but produce extreme confusion and war. For once this is admitted, then equals are allowed to do equal things, and it would follow automatically that if Eve used the said licence to take away an apple from Adam, he could take the same apple away from Eve with as much justification, and so on forever, until he who is stronger eats the apple. It would be the same in all other matters. You would have a war of all mankind among the first humans.

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§90. Thus, although some have argued eruditely that occupation, which is the cause of dominion, receives its force from a tacit agreement between the first humans, this opinion is undoubtedly limited with respect to consumables, which have been taken for immediate consumption. This is partly because all common ownership, as something involving common use, would be pointless without the right of appropriating what you had taken; and this common use would be pointless if others had the right to deprive me of what I want to use for the purpose of necessary consumption. And this is so partly because they themselves very eruditely refuted this Hobbesian right.

§91. As for the objection of others that, given this primeval right of humans over things, it is not clear how the bare physical act of a single person, such as occupation, can prejudice the rights of others unless they give their consent—that is, unless there is an agreement—that objection can be easily removed.

§92. For in the beginning occupation, which is a physical act, does not establish property rights; but the law of sociality on preserving equality, together with this physical act, excludes others from the use of something consumable that someone else has already taken.

§93. They who raise this objection obviously regard pacts as the source of all obligation. However, we have supposed a law, which often produces an obligation without a pact, while a pact never produces an obligation without such a law.

§94. If you wanted to use the term tacit agreement so broadly that it includes a presumed pact, then the dispute is about words rather than the matter itself. For we have shown above that this presumed pact is not an agreement in the true sense.

§95. We must not neglect to say, however, that there is a reason why we have mentioned immediate consumption. It was to indicate that we are not of the opinion that the occupation of consumables with the intention Edition: current; Page: [275] of setting them aside for future use produces dominion, even in the absence of a pact. Just as the purpose of common ownership and the precept about preserving sociality and equality do not necessarily make provision for such an appropriation, so too are we unable to conceive of its existence in that most perfect state [before the fall from grace]. For where there was to be a supreme abundance of things and the perpetual equality of supreme friendship, no reason could exist for setting aside consumables for one’s own use. There this setting aside would undoubtedly have interfered with the precept about preserving equality.

§96. Let us move on to the postlapsarian state. Here matters are changed. The field brought forth weeds rather than fruits. Labor became a burden for the human body, but without it fruits were rarely to be hoped for. The human body had need of huts, clothes, etc., against the inclemency of the weather, and these could not be made or built without some labor and effort. Beasts could not be taken and captured without trouble. Their maintenance required additional effort. The mutual love among humans, the firmest support of common ownership, had weakened greatly.

§97. Still, this change did not bring about the actual distinction of dominions. Nor did God after the fall from grace divide the dominion over things afresh between Adam and his children. Instead, the primeval divine grant remained in place and was only limited and restricted in its effects.

§98. Thus, it followed that the common ownership of that most happy state was no longer compatible with the peace of humankind. For even if there had been no other reasons for the further division of dominions, it would have been enough that quarrels had to emerge from the difference between labor performed and the benefit received if humans labored on common things, contributed to what was owned in common, and were maintained from the common store. And it would be inhumane if others were permitted to claim the use of huts or clothes when they had contributed nothing to making them.

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§99. It should not however be assumed that all humans abandoned common ownership simultaneously and in one single act. Most probably, it seems, there was an initial agreement concerning consumables to the effect that whatever someone had taken from the common fruits that grew spontaneously and had set aside for future use was his rightful property. Similarly, that those items which could not be consumed and which he had occupied, be they movable or not, in order to live in them, cultivate them, and reap fruits from them, be considered his property together with the fruits produced by them.

§100. Thus, since there were few humans in the beginning, and the world was vast, it is clear that few things were then occupied and subject to dominion. Most remained in common ownership until the human race had increased, and most of these things, though not all, became property as a result of occupation.

§101. This occupation in the postlapsarian state does not seem to preclude the possibility of a pact completely. For even though natural reason suggests that the dominions over things are distinguished from each other, and that occupation is the most convenient way of ending disputes, it [natural reason] still does not declare positively that we acquire dominion by seizing something physically. For there is an enormous difference between taking something that can be consumed in an instant and taking other things.

§102. Thus, it is plausible that following the increase in the number of humans, they divided certain things among themselves by mutual consent to avoid quarrels and introduce good order, and that everyone was assigned his portion; and that this was done with the added agreement that those things left over after this division were to become the property of the person who had first claimed them by taking them.

§103. First occupation [of something] implied use, from which others were not allowed to prevent me according to the rules of common ownership. But this kind of use is not compatible with the nature of the thing Edition: current; Page: [277] unless I am able to exclude others from it. But in the occupation of other things it is possible for me to derive some use from them, though not so conveniently, even if I do not keep others from sharing these things.70

§104. It is thus very true that the distinction of dominions in these matters emerged in the postlapsarian state, mainly in order to prevent quarrels. Still, because of the corruption of the human race, very often wars do still arise over what is mine and yours.

§105. Sacred history fully confirms what we have said, or at least does not contradict it, no matter whether you take the sons of Adam or the progeny of Noah in the restoration of the human race after the flood.

§106. Concerning Adam’s children, sacred history mentions only that Abel was made a shepherd and Cain a farmer. This does not exclude the possibility of prior occupation and even presupposes it. There are, however, many reasons not to assume that Adam was ordered by God to distribute dominions over things among his children in the state of innocence, but could not put this into practice because he spent such a short period of time there; nor that he therefore did it after the fall from grace, by distributing a part of his goods between Cain and Abel, so that the former owned the immobile goods—that is, fields—and the latter the mobile goods—the herds, etc.

§107. For apart from the fact that this divine precept about the division of the different parts of the earth does not exist in Scripture, but is the product of wishful thinking, we have also shown above that this division of goods contradicts the perfection of the state of innocence.

§108. Holy Scripture also says nothing about the division of Adam’s goods between Cain and Abel, nor does it say that they were not allowed to seize other things which were free from possession, in addition to those assigned to them by their father.

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§109. For even if we do not deny the paternal power of Adam, yet if we abstract from civil laws, this power does not imply power over the goods of his children; and in the case of adults, such as Cain and Abel, this paternal power expired automatically, as we shall explain below.71

§110. The statement that Abel received the mobile goods, Cain the immobile goods, is no more than pleasant speculation. As if Cain did not need an ox to pull the plough; as if he ate nothing but grain; and as if Abel had not needed a pasture for his sheep, or had not consumed bread as food! That is, unless you want to say that Adam at the same time introduced relationships of commerce, barter, and hire, etc., between the two brothers, or unless you make up more reasons to defend such contemplations in spite of the fact that Scripture does not mention them and even pretty much contradicts them.

§111. As far as the age of Noah is concerned, God used the same formula of benediction here as he did for the first parents.72 Therefore, we have to interpret it in the same way as that other [formula] to the extent that the changes in the human condition following the fall allow us to do so. Certainly it does not prove the introduction of private dominion.

§112. And, to make this even clearer, Scripture says that when God made this benediction and granted the power of subjecting all other creatures, he did not address Noah alone, but his children, too. This was in order to indicate that they had acquired the same right as their father.

§113. Thus, it is highly probable that dominions over things gradually emerged among the descendants of Noah as the result of occupation, since sacred history does not mention a division made by their father.

§114. The words of Scripture would have to be greatly distorted if someone wanted to interpret these to mean that Noah distributed the nations and islands among his sons, that each of them should own his portion in peace.

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§115. For even if Philastrius is so sure this distribution occurred that he considers denying it to be a heresy, we will not fear this heresy maker any more than jurists fear Baldus [de Ubaldis], or whoever of the ancient glossators declared that it was heresy to deny that the Holy Roman Emperor was the lord of the entire world.73

§116. This bugbear did not deter Bochart from disagreeing.74 And others have observed that the traditional belief in this division by Noah belongs to the fables of that fictitious character Berossus.75

§117. And how could Noah divide the nations among his sons? There were no nations except for those which sprang from Noah’s children. Were they already entire nations at the time of this supposed division? Did Noah take the children of one son and transfer them into the power of another? Or did certain nations survive the flood, which Noah then assigned to his children?

§118. Thus, we have to be very cautious: when we look to our private interest, we must not invent something to confirm a new and hitherto unheard-of hypothesis and thereby betray the common interest of Christianity to the so-called Pre-Adamites, who make every effort to show that the great deluge was not universal but only affected the lands of the Jews.76

§119. It is therefore clear what is the meaning of this precept not to disturb another in the use of creatures. It is twofold and concerns either common ownership or dominion. In the former case a person is under an obligation Edition: current; Page: [280] to allow another person to enjoy an equal right to the use of something as long as this person does not seek to acquire property rights in it through occupation or some other means of acquiring dominion.

§120. In the latter case, however, a person is obliged not to try to use something which is in the dominion of another person against the owner’s will, always excepting the case of extreme necessity.

§121. Also, from the reasons for introducing dominion and from its definition another special precept follows which is relevant to common ownership: that man should allow something which is of inexhaustible utility and which human effort cannot prevent others from using to remain in the state of primeval common ownership.

§122. The purpose of all property is that someone acquires a good for himself alone which is not sufficiently abundant to be used by all or which gives rise to quarrels if it remains in common ownership, and that he does so in such a way that he can prevent others from using it in future. It is, therefore, evident that there are three prerequisites in the thing that is to be subjected to dominion.

§123. (1) First, that this thing can be of some use to humans, either indirectly or directly, either in itself or through its connection with something else. It would be superfluous and silly to want to claim something useless, though it may perhaps be difficult to come up with an example of something that is totally useless.

§124. (2) It must not be possible for all humans to use this thing sufficiently without the danger of strife. Otherwise, a person would sin against the precept to preserve equality and especially to avoid pride if he wanted to exclude others from using these sorts of things.

§125. Certain things can be used by humans within such tight limits that their use cannot be shared with several others. For the sake of peace, it is of the greatest interest that these things become private property.

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§126. Other things, however, offer various kinds of uses and can be consumed in certain ways while they are abundant in other respects. In the former respect they can become property; in the latter respect the law concerning the duties of humanity requires that their use be shared with others.

§127. Among these are the light and warmth of the sun, air, rivers, and similar things. Thus, it is not inhuman and malevolent if someone claims these things as property, but it would be inhumane to deny others the innocuous use of these things.

§128. But if things are sufficient for all possible uses by all humans, it would be absurd to want to divide them.

§129. I have, however, added—importantly—that this is only so if a thing, by its nature, has uses the exercise of which does not give occasion for strife.

§130. It is thus evident that the earth could not remain in common ownership although the extent of the entire earth is such that it is sufficient for any kind of use by all peoples. This is because after the fall from grace human industry in particular was required in order to benefit from this usefulness. Moreover, if humans had not been allowed to occupy parts [of the earth], there would have been occasion for strife, even concerning those uses which do not require human effort.

§131. But you may want an example of a thing that by its very nature offers some use to all humans without the danger of strife. I will give you one. Consider the vast ocean spread between the great continents of Europe, Africa, Asia, America, and the unknown southern territory.77 Whatever benefits man derives from this, they are sufficient for all of humanity and do not require industry or cultivation. Moreover, they do not give rise to strife since they are not so frequent that there is a danger humans would compete over the use of the ocean.

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§132. (3) For something to be suitable for dominion it must be possible for the thing itself to be seized and guarded to some degree. For as property includes the right of keeping others away from this thing, it would be useless unless it could be put into effect against these others, and a person would claim something as his property in vain when he cannot by any means prohibit others from partaking in it against his will. This would mean a sin against the duty of man toward himself, which commands that one should not strive for something beyond one’s powers.

§133. The more narrowly something can be enclosed and defined, the easier it is to secure the effects of property against others. Thus, the more suitable something is for keeping others from seizing it unjustly, the more securely property rights over it can be guaranteed.

§134. A thing is not immediately exempt from property rights just because others cannot be conveniently kept away from it. But if that thing is so diffuse that protecting it completely is impossible, or if the costs of guarding it are excessive, then one should not assume that anybody wanted something that is so difficult to guard to be his property. And if someone did want it, he had no right to do so.

§135. Again, take the example of the vast ocean.

§136. You see, therefore, what should be declared concerning the well-known controversy over the dominion of the sea. To put it briefly, those parts of the sea which are not part of the vast ocean can be subjected to dominion through occupation, but there is no right to do the same to the ocean. Others have explained the matter at great length and eruditely.78

§137. Moreover, once dominion was introduced, physical occupation alone was no longer sufficient to acquire property since occupation is effective Edition: current; Page: [283] only until something that did not belong to anybody has become the property of somebody. Thus, the necessity and utility of the human race required there to be other forms of acquisition aside from occupation.

§138. For teaching purposes you can divide these forms as follows on the basis of reason and insofar as they are commonly accepted among nations independently of their civil laws: some are principal, which have their own rules; others are accessory because they draw on the rules of the other forms depending on circumstances, but do not have different rules of their own.

§139. A principal means of acquisition is either original or derivative. By means of the former property in something is first introduced. By means of the latter existing dominion is transferred from one person to another.

§140. The only original means now is occupation. This, however, involves seizing something which does not belong to anybody with the intention of establishing property rights over it. From this follows the commonplace rule that whatever does not belong to anyone becomes the property of the occupier.

§141. The ways of seizing different things, however, vary as much as the things themselves. Mobile goods are seized with one’s hands, immobile goods with one’s feet, by entering them.

§142. Another difference between the two is that bodily contact is sufficient to occupy something immobile, but in the case of mobile goods it is also necessary to remove them from their location and transfer them to our place or custody. It could perhaps be said, though, that in respect to mobile goods it is enough to seize these without moving them as long as this seizure can be proved.

§143. Similarly, mobile goods and especially self-moving goods are occupied with the help of various instruments, such as javelins or a trap, etc. Edition: current; Page: [284] However, it has never been common among the nations for immobile goods to be seized by using javelins, for example.79

§144. Moreover, since mobile goods usually have clearly defined limits, there is no doubt that I acquire the entire thing if I seize one end of it.

§145. Immobile goods, however, are naturally connected to one another. We must, therefore, draw a distinction here. They either allow certain limits to be defined by human industry or not. In the case of the former (buildings, for example) it is also assumed that the whole thing is acquired if one part has been seized physically—if, for example, someone has entered a house. Here, however, it is necessary to use other physical signs to declare my intention of occupying these immobile goods.

§146. Such signs, for example, are the setting of boundary stones, maintaining them, etc.

§147. Finally, if we abstract from particular statutes, immobile goods are never acquired through the occupation of mobile goods, since mobile goods are added to immobile goods, not the other way round. But acquiring property in an immobile good usually means that the mobile goods belonging to it are acquired at the same time.

§148. Accessories, however, are all those things that do not belong to anybody and are contained in immobile goods, or which cannot be used without immobile goods. This is so, no matter whether they can be moved, such as inanimate objects, or whether they move themselves, such Edition: current; Page: [285] as beasts, and whether they are above the earth, such as the air, or beneath it, such as a buried treasure.

§149. And it is so, whether they are such that I could use them immediately as I wished or whether they require some special and laborious mode of appropriation in order to use them.

§150. And whether I know where I can get them or not.

§151. There is another difference between self-moving things and things moved by something else, in that the dominion over things moving themselves (among which I include the air) is only momentary and lasts only as long as they do not move themselves outside this immobile thing unless we have a special way of appropriating them. If these move themselves elsewhere, without human assistance, then our dominion ceases because they are then the accessories of something else.

§152. It is another matter with passively mobile things. Because these are normally only moved by humans, moving them does not deprive me of my dominion, and those moving them do not acquire dominion by taking them because they already were somebody’s property.

§153. But if a person who has become the owner of an immobile thing by occupation in a separate act seizes self-moving things,80 then they remain in his dominion even if they later transfer themselves to another location.

§154. Moreover, just as things which have been acquired cease to be in our dominion as a result of dereliction and return to their primeval condition, so there can also be no doubt that dominion over them has to be sought again through occupation.

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§155. On this basis we can easily reply to the thorny questions of jurists concerning the acquisition of wild beasts and their loss, the acquisition of precious stones found on the seashore, and the present-day right of the prince over these, that is, whether this right is to be considered dominion and whether subjects hunting contrary to the prohibition of the prince are committing theft. It also helps us to answer the questions whether the acquisition of a treasure is an example of occupation and whether the acquisition of things that are sent to us is another example, etc.

§156. But since the utility of a thing also depends on the fact that I cannot be forced to keep it against my will, but can hand it over to another whenever I wish, it follows that we have to examine the derivative forms of acquisition. All of these, if we abstract from the laws, depend on the will of a prior owner and the will of the person to whom dominion has been transferred. For there is nothing more natural than that the will of owners to transfer their property to someone else is effective.

§157. Only rarely are there disagreements about the will of the person to whom the property is transferred. The will of the previous owner, however, is either express or tacit.

§158. It is express either on the basis of words only—for example, if someone formally declares that he renounces his property in something in favor of someone else, who then accepts it.

§159. Or it is express, based on words that are linked to the act of transferring the property. This form is usually called a handover.

§160. The spoken word, however, is ephemeral; it admits of various conflicting interpretations even when it has been written down and uttered in the presence of witnesses. The use of goods, however, requires possession, and the actual transfer of possession is not subject as much to disputes. Thus, it is clear that the transfer of dominion by means of a handover is much more clear-cut.

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§161. Thus we can quite easily respond to the question whether a handover is really required for the transfer of dominion or whether this is an invention of Roman law alone. Similarly, on what grounds did the Romans allow the transfer of dominion without possession in certain transactions, especially in last wills? Finally, why were several forms of fictive or symbolic transfer invented in Roman law?81 Etc.

§162. Also, the transfer of dominion through words alone is the effect of actions among the living and of contracts, or the result of a last will or testament.

§163. Therefore a testament here is nothing other than a verbal declaration of what a person wants to happen to his goods after his death.

§164. This limited consolation for mortality is certainly accepted, if not among all, then among most nations, that a person, during his lifetime, can transfer his goods to the person he loves most in the event of his death.

§165. Moreover, it seems to have been common usage in ancient times to name heirs publicly when death was imminent and to hand estates over to them physically. Later, many nations for important reasons adopted a different form of testament, by allowing a person to indicate or put into writing his last will at whatever time he wanted. This he could change according to his whim, and on this basis the heirs who were named or listed in writing acquired a right when the person who had made the testament passed away.

§166. Although such last wills may deservedly enjoy great favor, they have to be modified to the extent that necessity and the utility of commonwealths require it. They [that is, commonwealths] are accustomed to stipulate legally how each person should set up his testament. Whoever ignores these rules cannot complain that his will was not observed.

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§167. But it is often inexpedient to transfer my property entirely to another person, and instead it is better to grant a use right and benefit, which another person needs, while I retain my property rights. Thus, nations commonly transfer such benefits through words alone, or by means of a handover, or in a last will.

§168. This transfer occurs in such a way that only a personal obligation is intended and no burden is imposed on the good that confers this benefit—as does happen, for example, in the case of lending, hiring, etc.—or in order that someone acquires some right over a good with respect to its use while our property right remains intact.

§169. And in this case a certain particle of our property, though one that is dependent and inferior to our property right, is transferred to another person together with the power of using and enjoying it. This is the origin of the distinction between dominium directum [outright ownership] and dominium utile [use right]. The forms of the latter are the emphyteutic right,82 the jus superficiarium,83 and the rights of vassals to a fief. Or, alternatively, the entire property right remains with us.

§170. The purpose of this is either to act as a guarantee for the person who grants us the use, to make sure he does not suffer damage. This is called a right of pawn or a security. Or it is some other use right and is called a servitude.

§171. If this use primarily concerns someone else’s person, it is called personal servitude—for example, usufruct, use, lodging, the work of servants, etc.

§172. If it primarily concerns the use of another person’s land, it is called real servitude.

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§173. And if this concerns the use of buildings in the city, then it is called urban servitude. If it is about the use of rural areas, that is, farming and grazing, it is called rural servitude.

§174. The forms of urban servitude are the obligation to allow one’s own house to sustain the weight of the neighbor’s wall; to let the neighbor seat his beams in our wall; to allow his timbers and roof to overhang our land; to allow the rainwater from the neighbor’s drip and gutters to flow onto our land; to build higher or lower because of smoke, waste water, or light (in order not to block light from the neighbor’s property); the obligation not to obstruct a neighbor’s view, etc.

§175. Examples of rural servitudes are the right to walk on a path, drive livestock, drive a cart on a certain path, channel water, draw water, lead herds to the water, graze them, have a lime kiln, dig for sand, quarry for clay or stone, chop wood, press grapes, etc.

§176. Roman jurisprudence is largely concerned with explaining these rights because these kinds of transfers take place very frequently among private persons. Because of their equitability and because Roman jurists very often based their decisions on the dictates of right reason, the European nations largely tend to follow Roman jurisprudence when it comes to public agreements. But the extent to which [Roman law] resolves these questions on the basis of purely civil reasons can be shown more easily elsewhere.84

§177. Let us, therefore, return to the subject. We do not want to neglect the sort of transfer of dominion that, as we have said, occurs tacitly. This applies mainly to intestate successions and to the acquisition of ownership as a result of uninterrupted possession.

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§178. Intestate succession takes place if a person has not left a last will, or if the heir named in the testament refused the inheritance or is incapable of being an heir.

§179. It is thus common custom among nations for possessions left after a person’s death not to be considered derelict; they, therefore, do not have to be granted to the first person to occupy them. In part this is so because it tends to be assumed that someone was prevented by death [from making a will] or that he was deceived in the hope he had formed concerning a friend.

§180. Therefore, it is generally decided on the basis of the deceased person’s tacit will that he who was the closest friend of the deceased at the time of his death should receive the goods of the deceased.

§181. Determining who is a friend, however, requires conjectures. These are all the more difficult as human friendships fluctuate greatly.

§182. Friendship rests either on natural causes—that is, blood relationships—or is freely chosen and based on specific reasons. The latter case seems less appropriate for the matter at hand because of the extreme difficulty, indeed impossibility, of definition. Moreover, this difficulty was not unknown to the deceased, and he could have easily resolved it by making a will. Having neglected to do so, he himself seems to have indicated that no attention should be paid to such friends.

§183. There remains the first form of friendship. This is presumed to be the stronger the closer the blood relationship was. Thus the nations in deciding cases of inheritance usually followed the rule that the person who is closest on the basis of blood relationships must acquire the inheritance.

§184. Whenever a rule is based on conjectures, there are exceptions. So the nations have added other conjectures to these prior forms of friendship and made certain exceptions from this rule. For the purposes of teaching Edition: current; Page: [291] you can divide these into common exceptions, which are based on a circumstance common to all humans, and specific ones, which concern the circumstances of one or several particular nations.

§185. Each of these two exceptions rests on the common distinction of relatives into three types: descending, ascending, and collateral.

§186. Descendants—that is, children—create the following universal exception from the said rule: whatever degree they are, they are preferred to ascendants and collaterals because of the universal affection of parents, which is always greater for descendants than for ascendants.

§187. In addition to this there is in many cases (and especially when the children are not yet adults who are able to take care of wealth themselves) a natural duty, by which parents are obliged to take care of their children’s maintenance. Thus, it was believed all the more that parents who had died without a testament had wanted to provide for their children as generously as possible and to leave to them whatever they had owned.

§188. But as far as the ascendants and collaterals are concerned, it is not so obvious which of the two is to be preferred to the other, since there are probable conjectures on either side. You might argue that brothers are to be preferred to parents according to the more ancient Roman law; or you might value brothers less highly than parents according to Saxon law;85 or you might consider brothers and parents to have equal rights, according to Justinian’s laws.

§189. To avoid giving occasion for intractable court cases, these disputes had to be resolved in advance either by laws or by agreements. Therefore, there is no commonwealth or province which does not observe either written or unwritten laws in intestate successions.

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§190. These [laws] thereupon lay down rules for the prerogative of legitimacy based on gender, age, family relationship, and the right of representation.86

§191. Prescription is the next case. This is when someone has acquired possession of something and has held on to it peacefully and without interruption for a long time. For then it is to be regarded as full ownership, to such an extent that the present owner can repel his predecessor should he attempt to reclaim his property.

§192. This applies to relations between different nations and to those between private individuals.

§193. In either case the shared and final aim is the peace of humankind, for the sake of which dominions should be clearly defined, and no occasions should be created for wars by allowing us to reclaim something that once belonged to us or to our relatives.

§194. But the specific reasons for either form of prescription vary greatly. In the prescription of nations only there is the tacit dereliction by the previous owner, who is considered to have left something derelict when he did not reclaim it for a very long period of time and did not declare his intention of reclaiming it. This argument is based on common human custom.

§195. Thus, the only requisite of this form of prescription is undisturbed possession by another for a very long period of time, which cannot be defined rigidly because of variations in circumstances. Generally speaking, however, only so much time is required as is necessary for showing that the previous owner knew someone else possessed his good and that he had not lacked an opportunity to protest.

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§196. A hundred years is undoubtedly such a period.

§197. If, therefore, somebody has, in some sense, protested in all seriousness against the possessor within this period, the prescription will not be accepted among nations.

§198. It is thus accepted that the claim to the title is by itself sufficient to interrupt the process of prescription.

§199. Among private individuals, however, civil laws are not primarily concerned with tacit dereliction when they allow something to be acquired by prescription. Their purpose, rather, is to punish subjects’ negligence.

§200. Therefore, they have set down a definite and shorter period of time, which varies according to the kinds of things to be acquired through prescription—one year, two years, three years, ten years, twenty years, thirty years, etc.—and within which the prescription can be completed, even if the previous owner did not know all this time where his property was or protested frequently outside of court.

§201. To avoid conceding too much thereby to unjust possessors, civil laws also require good faith and a just title from the person who wanted to take possession, and, with respect to the good itself, that it should be regularly accessible to private individuals and not held by means of theft or force.

§202. From this follow many conclusions concerning prescription by private individuals which are unknown to prescription as defined by the law of nations. That is why jurists list prescription among the private means of acquisition according to civil law.

§203. A relevant case is when the law transfers dominion over things against the will of the previous owner as a form of punishment, that is, when the condemned have all their goods, or a part of them, taken away from them because of their crimes and these are handed over to the public or the victim.

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§204. For among nations there is no means of depriving an owner of his property against his will.

§205. Even if in war something is taken away by an enemy through superior force, against the will of the owner, and becomes the property of this robber, the previous owner does not lose the right to use equal force to regain his possessions until he has renounced all claims to these losses in subsequent peace treaties.

§206. We still need to say something about the accessory means of acquisition, which is also called accession. This is summarized in one rule: “What is accessory follows ownership of the principal good.” Therefore, nothing new is to be expected here. No matter whether the principal thing is acquired through occupation or through a derivative mode of acquisition, the accessory thing is acquired on the same legal basis.

§207. We have already provided an example of occupation above. Likewise in the case of a handing-over, the person the building is sold to or handed over to is considered to have acquired the accessory goods of the building at the same time.

§208. Still, when it comes to the application of the rule, controversies arise over what is to be considered principal and what accessory.

§209. It seems uncontroversial to regard fruits as accessories because they are part of the [principal] thing.

§210. It follows that ownership of the offspring of an animal belongs to the owner of the female animal since it is a part of her.

§211. Those who believe that the owner of the male animal is entitled to part of the offspring appear to be resting their case on a dubious hypothesis (apart from the fact that others have already given an adequate response to these people), namely, that the offspring is an accessory of the Edition: current; Page: [295] male although it is not part of him, or that begetting is a means of acquisition, which is nonsense.

§212. Greater controversy surrounds other accessions—for example, if a picture must follow ownership of the canvas, writing that of the paper, the external form that of the material. To me it seems to be as follows.

§213. When two things (and by that I also mean labor) occur together or are connected in some other way, each of them may be mine. In that case there is no doubt that they are also mine jointly. This is the case, for example, when I make a plaster with my medicines or a cup from my silver.

§214. It is also possible that one of them does not belong to anybody while the other belongs to me. Then, once I have become the owner by seizing the first thing, it remains mine after the two things have been joined to each other. This is so, for example, when I prepare food from the meat of a wild animal.

§215. Or one of them belongs to someone else. If, in that case, I do not have any clear knowledge of the identity of the other owner—that is, if the previous owner cannot prove his ownership—then natural reason suggests it belongs to the person to whose thing it is attached. Examples are flotsam, [buried] treasure, etc.

§216. If, however, ownership of this thing can be proved and we abstract from civil laws, then it is more likely that no new acquisition takes place, but that we both have ownership of this thing, and that the thing thus is held in communal ownership pro rata.

§217. A union of two things has come about by accident, or through the will of each party, or through the will of one person, or as a result of the action of a third party.

§218. But if neither of us wants our property to be held in common, another question arises: who decides how common property is to be divided? Edition: current; Page: [296] This does not pertain so much to the forms of acquiring property as to the office of the judge and arbiter.

§219. And this is what the Roman jurists and Justinian primarily had in mind when they resolved controversies over specificatio,87 a painting, a piece of writing, soldering with lead or copper, etc.

§220. It is not our purpose to discuss their opinion at great length, but it may perhaps be useful to make the following points.

§221. If the two things that are joined to each other are easily separated, then they are separated and each person has his property restored.

§222. If they cannot be easily separated and the joined object is fungible, then the person joining the two must give something as compensation to the other person, who has no reason to complain since no particular affection is directed to fungible objects.

§223. If the other person’s thing is not fungible, then the duty of the judge cannot be set out in general terms since the circumstances here can vary too much.

§224. For even if you wanted to argue that that should be considered the principal object without which the other cannot exist, this can hardly be considered a universal norm for judging such controversies.

§225. For one thing, there are many cases where this rule could be applied to either person’s property, as in the case of specificatio: form cannot exist without matter, and matter cannot exist without form.

§226. Also, very often attention must be paid to the price of things. The result is that the owner of the more precious parts prevails. Justinian followed Edition: current; Page: [297] this rule in the case of paintings,88 while our laws do so in the case of written texts.

§227. We also need to take into account the neediness of the previous owner, which works in his favor. If, for example, someone has by a genuine mistake sown on someone else’s field and grain prices rise, then it would be inequitable to deny him the grain, etc.

§228. In such cases, therefore, the matter has to be entrusted to the prudent opinion of an arbiter. It is in the interest of the commonwealth that the decision of matters [like these] is not left to the arbitrary equity of judges.

§229. Thus, it is better if the prince prescribes certain axioms to judges (as Justinian did in the case of specificatio) based on what usually happens, even if these fail in some cases.

§230. From what we have said so far about ownership and the relevant precept it is clear that the essence of the duty of other humans toward the owner can conveniently be summarized as follows. Either something remains with the owner, or it has been passed to a third party. In the former case any person whatsoever is required to allow him to enjoy his possessions peacefully and may not destroy them by force or fraud, embezzle them, or appropriate them. This follows from the precept that prohibits harming others.

§231. If something has passed to a third party, then he holds it either in bad faith or in good faith. The possessor in bad faith is required to restore the thing itself or its price, together with all its fruits and all interest. This principle is based on the heading concerning compensation for damage.

§232. The possessor in good faith holds the thing either on the basis of a contract with the owner, such as a contract for hire, or rent, or a deposit. Edition: current; Page: [298] He is required to restore the thing to the owner, according to the law on contract. This conclusion is based on the principle concerning keeping faith.

§233. Or the possessor has held something in good faith with the aim of keeping it, not knowing that someone else is the rightful owner. In that case either the thing itself still exists or it has been consumed.

§234. In the former case, the possessor in good faith is required to do whatever he can to make sure that the thing is returned to the legitimate possessor or owner.

§235. In the latter case, if another person’s property that has been acquired in good faith has been consumed, the possessor needs to restore as much wealth to the owner as he has derived from it.

§236. These two assertions appear to be derived in part from the precept concerning the duties of humanity, in part from the precept that prohibits harming others, especially insofar as a possessor in good faith loses his good faith once he knows who the rightful owner is.

§237. We shall not protest if you want to add the universal agreement of primeval mankind to these reasons and to derive the obligations of the possessor in good faith from it.

§238. We will not, however, detain ourselves with the specific conclusions which the learned have formulated to describe the duty of the possessor in good faith. In part this is because others have already explained them extremely well, in part because they tend to be discussed in greater detail in Roman law, and in part because quite a few of them seem to occur rarely among the nations.

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CHAPTER X: On the Duty Concerning the Prices of Things

§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 he needs or delights in. Thus, it was necessary to seek from another person those things that were lacking. And since it was not possible to demand everything gratis it was necessary to offer the other person something in return that would be of use to him in the future.

§2. The person who did not want to give a thing or labor to another for free usually wanted to receive some equivalent in return for it. But very often the things that were exchanged were different in kind. The spontaneous result of this was that by some convention humans imposed on things some measure for their esteem, whereby even things with disparate natures could be compared to each other and weighed against each other.

§3. This weighing against each other, however, implies the comparison of several things with each other in terms of their quantity. And this is either according to their mathematical quantity, that is, on the basis of the three spatial dimensions, or according to their moral quantity, that is, their value. We are here concerned with the latter, which is called price.

§4. Thus, the price is the value of things and actions that are exchanged commercially, insofar as they afford humans some use and pleasure.

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§5. You see, therefore, that the peace of humankind demanded that a price be established. In particular, the preservation of equality and the precept concerning the duties of humanity demanded it since anybody can engage in commerce with anybody else and the exercise of commerce is in part also to the advantage of others.

§6. Moreover, the price is either common, when certain objects and works are compared to each other directly, or it is eminent, when the common prices of all other things are measured by it and it represents these common prices in a virtual sense. This is called coin or money.

§7. In an exchange, for example, the common price is appropriate. In a purchase the eminent price is used.

§8. The common price is more ancient than the eminent and appears to have been used for as long as humans lived in their primeval simplicity. The simpler the population (that is, the more it was content with the basic necessities of life), the longer was it content with the direct reciprocal exchange of objects and labor.

§9. The eminent price originally seems to have been produced in part by luxury, in part by the desire to increase the riches of the commonwealth.

§10. For after humans had begun to desire a whole variety of different things for their convenience or pleasure, it was no longer easy for anyone to possess exactly those things which another wanted to have in exchange for his possessions, or which were of equal value to them.

§11. Moreover, those commonwealths that wanted to appear cultivated and more civilized than others (which they described as barbarian) had to divide the citizens according to their different occupations. Many of these estates could not live without luxury and the eminent price, or at least could have done so only with difficulty.

§12. We have said that humans were obliged to determine the prices of things because of the command to preserve equality; and the determination Edition: current; Page: [301] of the price, if we abstract from international treaties and civil laws, should be based on the following precept: “When you compare your thing to that of another do not consider him to be unequal to yourself without just cause, do not deceive him, and do not neglect the duties of humanity.” The first is based on the injunction to avoid pride, the second on the precept prohibiting harming others, and the third on the law concerning the performance of the duties of humanity.

§13. So, for example, it is a violation of the first precept when someone values his commodity—that is, his grain, wine, or property, for example—more highly than another person’s equally good grain, wine, or property.

§14. It is a violation of the second precept if someone knowingly and falsely attributes a particular quality to a thing and also if he says nothing about a defect.

§15. It is contrary to the third precept if, for example, someone demands a higher price from a poor person than from a wealthy person.

§16. But as we have said above, the precepts to avoid pride and perform the duties of humanity do not always produce a perfect right, and the performance of the duties of humanity requires many other circumstances that are not that obvious. Thus, among those living in the state of nature no further specific rules on the determination of the price can be defined, and further inquiry has to be left to every individual’s conscience.

§17. Because the contracting parties in this state [of nature] remain equal, it follows here that both sides can choose above all the price they prefer. That is, if you consider their external freedom, each seller may in an exchange demand a large sum of money for his good, while the buyer may offer a far lower price.

§18. This is what the Romans appear to have had in mind when they say that the contracting parties in a sale are naturally allowed to circumvent each other. A relevant example is that of the Greek comedian (if I am not mistaken) who, having promised the people that he would reveal the Edition: current; Page: [302] desires of everybody, said, quite truthfully, that all want to buy cheaply and sell dearly.

§19. Thus, there will be no place among those who live in this state [of nature] for the rescission of a contract because of damage by more than half [of the fair price].89

§20. If one of the contracting parties was guilty of deceit, then the rescission will be applicable on the basis of the deceit even if the damage was far less than half [of the fair price].

§21. If there was no deceit and each party knowingly entered into the contract, then there is no reason to rescind the contract, not even on the basis of civil law.

§22. If each contracting party errs and is ignorant, then we do not need to look for half of the fair price, because among those who value their good as it pleases them there is nothing by which you could measure what is half of the fair price. Instead, we need to refer to that which we stressed above concerning error in contracts.

§23. Yet in this case everybody will estimate the degree to which the law on the duties of humanity imposes an obligation, admittedly imperfect, on him.

§24. But commerce is not greatly encouraged by this form of valuation, and equality is preserved more effectively among those who are equal if individuals submit themselves to the judgment of several people. Thus, it is common practice among nations, for good reasons, that each of the contracting parties turns to the judgment and opinion of similar people in similar Edition: current; Page: [303] transactions, and they consider that agreement to be fair in which this kind of estimate was used and that to be unfair in which it was ignored.

§25. Therefore, with respect to this custom, you can distinguish between the common preferred price and the preferred price in the strict sense.

§26. I call something a common preferred price when a person in commercial exchanges involving his possessions uses the customary estimate of others.

§27. A preferred price in the narrow sense is when someone values his own thing more highly than others commonly do.

§28. But even this price is sometimes not considered unfair, namely, if there are special circumstances which are not very common but because of which others are also accustomed to value their things more highly.

§29. We, therefore, need to explain briefly the foundation of each of these two prices, which are generally accepted among the nations.

§30. As far as the common price is concerned, those people are certainly mistaken who look for it in the nobility of the substance and the excellence that one thing has in relation to another.

§31. For if this were the case, then the price for a bad serf would have to be greater than that for an excellent horse, that of a flea greater than that for a highly salubrious plant, that of parsley greater than that for precious stones or very expensive pearls, which is absurd.90

§32. And how would different human labors be valued in relation to each other since they have no substance?

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§33. I would not look for the foundation of this price in the suitability of a thing or labor for contributing indirectly or directly to the necessities of human life or toward making it more comfortable and pleasant.

§34. It is of course true that the necessity, convenience, or pleasure of something leads the contracting parties to make an acquisition, but these considerations do not guide them in determining the price.

§35. Therefore, I say, quite rightly, that useless things have no price. And it is also for the most part true if I say that things with some utility for humans have a price. I cannot say, however, that things, when they are compared with each other, have a greater, lesser, or equal price, depending on their respective utility.

§36. If this were the case, then something that is necessary to humans would always have to be valued more highly in commercial exchange than something that is merely convenient, and the latter more highly than something merely pleasurable. But how often is food sold for less than a precious stone or pearl!

§37. In addition, there are many things that are extremely useful for human life and that have no price, either because they must not have an owner (as is the case with the upper reaches of the air, the ether and the celestial bodies, or the vast ocean); or because they are unsuitable for exchange and therefore excluded from commerce, such as a free man; or because in commercial transactions they are never considered anything other than an accessory of something else, such as sunlight, clean air, a pleasant view, wind, shade, etc. (although these too increase or reduce the price of farms or estates); or because divine or human laws have prohibited these from being traded commercially, such as sacred acts, the administration of justice, etc.

§38. What, therefore, shall we say? Scarcity is usually the most important consideration in the prices of things, whether these are necessary for man, or only useful, or pleasant. Hence the common saying that everything that is scarce is dear.

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§39. Thus food is cheap where it is abundant, more expensive where it is scarce, extremely dear and often priceless at the time of famine.

§40. And thus the human desire for luxury has produced enormous prices for things that are not necessary, and that human life could easily do without, because of their scarcity and because they are imported from remote locations, such as precious stones, pearls, and tulips, when these were very rare, etc.

§41. In works of art the subtlety and elegance of the skill, the fame of the craftsman, the difficulty of producing the piece, the small number of craftsmen, and similar considerations are all about scarcity.

§42. It is the same with works and actions. Their price is linked to their difficulty, the skill required, the utility, necessity, scarcity of agents, dignity, and finally the reputation of the art itself, whether it is esteemed to be noble or base.

§43. At the same time it is evident from this why nations have generally adopted rare metals for [measuring] the eminent price. Apart from the fact that these substances are very compact, so that they cannot be easily destroyed or broken into small pieces, their scarcity has the effect that they can be treated as the equivalent of many other things and can measure these things by means of an eminent price.

§44. The foundation of a price based on preference [in the narrow sense] is a desire that is not very widespread, but that is approved by a number of people. For example, the person from whom a thing has come to us is highly esteemed by ourselves and the thing has been given as an expression of his affection, or we have become used to it, or it is a reminder of something significant, or we have averted a great evil with its help, or it has been made by ourselves, etc.

§45. These principles prevail in the state of nature. In commonwealths, however, considerations of utility do not allow subjects to enjoy such freedom Edition: current; Page: [306] in determining prices. Therefore, examples of prices based on preference are very rare here; its only use, as one might expect, is in cases concerning compensation for damage, and even here it is not always applicable.

§46. The common price is often used with respect to the market value, where apart from the scarcity of things the labor and the costs of the merchants who convey and handle them are usually taken into account, as is the question whether goods are bought in great or small quantities. The common price is also changed abruptly by the abundance or lack of buyers, money, or goods. It is also relevant whether a good is seeking a buyer or whether a seller who would otherwise not sell continues to receive offers. Finally, it is relevant whether someone offers immediate payment or defers payment to a later date.

§47. In these matters in which the aforementioned circumstances need to be taken into account, the prince cannot decree specific laws on prices because there is such huge variation in these circumstances. Instead, the determination of this price has to be left to the common judgment of contracting parties.

§48. Because this judgment is subject to a lot of variation, such a price cannot be reduced to a single point, but allows for some flexibility. If a person bought something for two coins, for example, another person in the same commonwealth might buy it for two and a half, while another might pay one and a half. All three are to be regarded as having acquired the thing for a fair price.

§49. However, to prevent this flexibility from being limitless and thus conniving at the damage inflicted by some on others, three degrees of the common price are usually distinguished: the lowest (or pious), the medium (or moderate), and the highest (or harsh). As long as one remains within this range, something can be bought or sold for more or less.

§50. This is what Roman law was concerned with, when it granted the right to rescind a contract (in cases where it was not possible to prove Edition: current; Page: [307] fraud by the other party) if someone had suffered damage of more than half the just price. As I understand this, this is the case when someone has paid more than twice the amount of the lowest price or received less than half that of the highest price. For people who are experienced very rarely tend to exceed these limits, even if they disagree over valuations.91

§51. This law does not please everyone since this limit often involves some iniquity in the case of large acquisitions—for example, if someone has bought for five thousand thalers a house which is generally valued at a minimum of three thousand thalers and a maximum of four thousand thalers. Yet, it seems, it can be said in defense of the justice of the Roman laws that these were intended to come to the rescue of those who bought something of small value, where it is not expedient to inquire at greater length about the price; the person, on the other hand, who is so negligent in matters of great importance that he suffers a substantial loss seems to have been considered unworthy of the support of the law.

§52. In addition, in cases of such great importance it is easier to prove the other person’s fraud, which brings about a restitution of the property even if the damage is less than half.

§53. But if the prince sees that he himself can determine the prices of things, which usually happens in the case of fungible goods and domestic products and in common services, then it is best if he does so in order to prevent quarrels.

§54. The result is a new kind of price, which is unknown to those who live in the state of nature and which is commonly called the legitimate price.

§55. This is not flexible, but consists in a single point, such that the smallest deviation from it constitutes an injustice.

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§56. This goes so far that it is not only forbidden to accept more [than the legitimate price], but often even to pay more, especially in those cases when the price has been set down not so much for the benefit of individuals as for the sake of public benefit and in the form of a sumptuary law.

§57. It will not be allowed to accept less [than the legitimate price], especially if the determination of the price is intended for the prohibition of monopolies [of buyers] or has been introduced for the general benefit of merchants.

§58. Having talked about dominion and price, the order of things leads us now to a discussion of contracts, which presuppose the separation of different dominions and the invention of prices and the distinction between contracts and pacts.

§59. Now, to be frank, divine jurisprudence does not recognize this distinction between pacts and contracts, which, insofar as it exists, owes its origin entirely to the Romans.

§60. Indeed, the ancient Romans wanted to take care that subjects were not harmed by an excessive willingness to enter into promises, no matter whether these were gratuitous or mutual. They, therefore, decreed that no effective obligation resulted from mere promises without a transfer, unless someone promised something to another in the form of a solemn stipulation.

§61. Thus, in the most ancient times stipulation was the only form of contract, while all other promises seem to have come under the description of simple pacts.92

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§62. Finally they gradually exempted certain transactions from this rule that a simple pact [pactum nudum] could not be enforced by law, either because the pact was followed by a payment, or because of the frequency of these pacts or their necessity for the encouragement of commerce and the daily benefit of citizens, or for the sake of adherence to contracts or some singular consideration of equity that was entirely contrary to the original intention.

§63. Hence the division of pacts into simple [pacta nuda] and nonsimple [pacta non nuda], and of the latter into legitimate and adjunct. The adjunct are divided into I do not know how many subspecies, which have been the cause of countless quarrels among jurists.

§64. From this developed the distinction of contracts into named and unnamed, and the division of the latter into real, verbal, by letter, and through consent—though these are not so controversial, except for the fact that another division of contracts, into those of strict law and of good faith (which originally stemmed from the distinction between the offices of the praetor and the judge), and the excessive subtleties concerning the formulae of legal actions and their titles had made the teachings concerning pacts and contracts more complicated, etc.

§65. These difficulties in Roman law were only increased by the clumsy rhapsody of Tribonian, and they then took hold of almost the entire Christian world, partly because the popes kept a lot of the material about contracts in their Decretals,93 rejecting only a small part of it, and partly because some centuries ago the study of law began to revive in Italy and Germany, and the law of Justinian was at the same time introduced to universities and the law court. There Roman law was interpreted by men who were enormously diligent, but devoid of any interest in letters and history.

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§66. Thus it happened that the current Romano-Germanic private law is an amorphous chaos, which cannot be reduced to an art by means of rules which one could safely trust.

§67. At the same time the doctrine of contracts and pacts in natural jurisprudence has so far been examined largely according to the principles of the Romans. This is partly because Christian kings almost unanimously accepted Roman law, at least to some degree, by reason of the many rules of equity contained in it, and observed these [rules] in contracts in their relations with each other.

§68. In part it is because the Scholastics and papal theologians, who a long time ago, before Grotius, had taken control of the doctrine of natural law, which had been abandoned by the jurists, suffered from a fault that is very common in that kind of person: they interfered in other people’s business and used the pretext that they were writing about justice and law in order to meddle excessively in matters of Roman law and to scrutinize its minutiae according to the rules of their fictitious equity.

§69. Grotius was more modest in this respect, as were those other wise men who followed him: he was the first to reclaim successfully for the jurists what had been seized by others through force, or subterfuge, or doubtful means. They demonstrated eruditely to what extent the doctrine of contracts in Roman law conformed to natural equity, and so we do not think it necessary to reinvent the wheel, but will reserve what needs to be said about that for our private lessons on Romano-Germanic private law.

§70. We also refrain from discussing the means of dissolving obligations, such as payment, the substitution of obligations, compensation, and release, since these tend to be discussed in greater detail by the commentators on Justinianian law. And in those matters this law puts forward a wealth of equitable rules, which are not that obscure.

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CHAPTER XI: On the Interpretation of Divine and Human Will Insofar as It Is Expressed in Words

§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 pacts.94

§2. For I said above that the interpretation of natural laws was one matter and that of revealed laws another. Either presupposes certain rules and axioms, which depend on first principles. But natural laws rest on uninterrupted chains of argument even in their remote conclusions, while conclusions in revealed law are to be derived from a general axiom by means of conjectures and probable arguments. There the same rules apply that legal practitioners use in interpreting human laws and pacts.

§3. Above all, it must be emphasized that we are speaking of positive laws that concern the temporal well-being of all humans. For whether the interpretation of the mysteries of faith is based on common rules of good interpretation or whether this requires special assistance and illumination by divine grace is not our concern here since we believe that theology is best left to the theologians.

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§4. Now, in a human court everybody is obliged to do what the legislator wants him to do, or what he obliges himself to do by his own will. The will of the legislator, however (excepting the law of nature), and of the person making a promise can only be inferred by others from the signs they use to declare their will. It is thus clear that the genuine standard and measure for the interpretation we are talking about is the determination of the intention on the basis of the most probable signs.

§5. Among the signs, however, by which an intention is declared, the more important are those that are in the form of speech. Therefore, we shall here be concerned mainly with the interpretation of a will that has been expressed in words, especially since the rules we will relate here can be applied in almost the same way to a will that has been expressed in deeds, which is the origin of tacit consent.

§6. Moreover, since words are signs of the mind, it is a universal truth that words are to be subordinated to the intention, not vice versa.

§7. In every law or pact, therefore, we need to look first at the words, but at the same time check whether the legislator or contracting party wanted to indicate something other than he said.

§8. Sometimes, indeed, we use words very precisely to express our meaning, so that we say what we think. But sometimes words only reflect part of our meaning, and we say less than what we mean. And sometimes the words are more extensive than what we have in mind, and we say more than we mean.

§9. The result of these different ways of speaking are three forms of interpretation: declarative, which explains what others mean in accordance with their words; extensive, which broadens their more restrictive meaning in such a way that they cover another case, which was included in the intention; and restrictive, which informs us that not everything covered by the words was intended by the speaker.

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§10. These three forms differ in that the declarative mainly concerns the proposition that is declared in words, while the extensive and the restrictive look to something else, which is not expressed in the words themselves, namely, the reason [ratio] that impelled a person to speak these words.

§11. The words with which declarative interpretation is concerned are, therefore, considered either as simple terms or as propositions or entire speeches.

§12. But while every good interpreter begins with the meaning of the simple terms, there can be no doubt that he has to understand what these mean as part of a composite whole, since laws and pacts are, at the very least, propositions.

§13. For composition often has the effect that words mean something different than when they are used on their own.95 And this is commonly called the idiotism of language.

§14. Both verbal expressions (that is, terms as well as propositions) are either vulgar (that is, common), or technical (that is, terms of art).

§15. Each of these is either perspicuous or obscure. I call those perspicuous that clearly and distinctly reveal the mind of the speaker to those who are experienced in a particular language or discipline. Obscure words are those that experienced people understand only with difficulty or not at all.

§16. As far as perspicuous words are concerned, these are obscure to those who are not experienced in the relevant discipline or language (which is why philosophers have distinguished between subjective and objective obscurity), but this obscurity can be easily remedied, partly by trusting those who teach languages to inform you reliably, partly by learning the Edition: current; Page: [314] principles and rules of a discipline from its practitioners and consulting lexica and dictionaries, which exist for this purpose.

§17. Yet, he who wants to be an autodidact will not progress far in understanding either [perspicuous or obscure words]. And he who has not learned the language or discipline must refrain from interpretation, in part to avoid exposing himself to ridicule and in part to avoid meddling, either by fraud or by force, in the affairs of others.

§18. Thus, the explanation of terms that theologians use in talking about the mysteries of faith are to be left to them by the jurists and physicians. And similarly, the Lex Aquilia, the Senatusconsultum Velleianum et Macedonianum, the dominium bonitarium et Quiritarium, territorial overlordship, vassalage, etc.,96 are no business of theologians and physicians. Likewise, alkali and acid, as well as the countless terms for illnesses and symptoms, are no business of theologians and jurists. The explanation of any of these is no concern of philosophers, etc.

§19. Obscure words either suffer from an obscurity that can be removed or they are so obscure that nobody can understand what the speaker meant. The first is what we are talking about here, as we shall show more fully in this chapter.

§20. Obscurity, however, is partly the result of the external form of letters, and partly that of the internal meaning of words.97

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§21. The external form of words is shaped either by language or by writing.

§22. That which is shaped by speech is called sound. And unless the sound is totally inarticulate, it deserves to be interpreted. For even he who speaks with difficulty must be considered a speaker. This is particularly appropriate if someone in the instant before death expresses his last will, which he will never do again, in words that are not fully intelligible—for example, if someone said, “My servant Cratinus shall be free,” and he only has a servant called Cratistus.

§23. Insofar as this kind of obscurity is to be remedied through interpretation, it is subject to much the same rules that we will put forward concerning the clarification of internal obscurity.

§24. The obscurity that stems from writing or from those features that are extrinsic to written text can occur if a person’s handwriting is unclear and messy. This fault is common to many scholars, so that it has become proverbial to say that we learned men write poorly. Take the famous example of the physician who wanted to prescribe parsley [apium], but who had formed his letters in such a way that the pharmacist read “opium” instead.

§25. Or the writer has used obscure signs and notes and puzzling abridgments, which we call abbreviations. It is not without reason, therefore, that Justinian severely prohibited using these in formulating laws. Thus, an ignorant cleric once misread “Otto, by the grace of God,” etc.98

§26. Or the copyist made a mistake in transcribing the words.

§27. Or the written text has been altered so much by erasures, insertions, and additions, or by some other means, that it can no longer be read clearly.

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§28. Or the writing has been mutilated. That can be the result either of the original carelessness of the scribe or of the passage of time.

§29. Or the text is correct as far as the letters go, but suffers from poor punctuation, or a lack of punctuation creates ambiguity, as is the case in the well-known verse: “remain open door at no time be closed to an honest man,” etc.99

§30. Even if the rules we shall soon discuss are of some help in these and similar obscurities, it nevertheless cannot be denied that the most powerful assistance is to be sought from natural prudence and a singular faculty of judgment, in which some excel before others. Thus, those people who are particularly adept at this kind of interpretation are commonly called critics by the learned.

§31. Thus, I move on to the obscurity that affects laws and agreements as the result of the internal meaning of the words. This occurs when the speaker has used words that are (1) obsolete, whether they were clear and common at the time they were used, as in the case of the Laws of the Twelve Tables and the laws of the Lombards and the other ancient tribes of Germany;100 or they were antiquated at the time in which they were used, as is the case in that response by a learned man: Rebare te fari scio, etc.101

§32. (2) Words that have been coined recently are also often the cause of obscurity, since terms tend to be based not on the opinions of individuals but on common use. This happens if someone, on his own, gives words a new meaning—for example, if someone commonly uses the term suppellectile for silver tableware, cloaks, or robes. Or it happens if someone Edition: current; Page: [317] forms new terms through combining others, in order perhaps to express the peculiar terms of another language or for some other reason. Or something altogether different may be created. A relevant example here is perhaps someone who calls soldiers “those who speak with bombard-sword and deadly pike-flame,” or the Scholastics’ perfectihabeam.102§33. (3) Obscurity can arise easily if someone makes use of foreign words in speech. Thus, it is best to avoid this obscurity by adding a suitable paraphrase. Roman laws have followed this rule diligently when they talk about scopelismon103 and chomata.104 Similarly, obscurity is increased if these foreign terms are used incorrectly by inexperienced people and have their meaning changed, which is something familiar to our Gallo-Germans.105

§34. (4) Above all, however, it is ambiguous words that cause obscurity. These are constituted in such a way that they mean two or more things. We must not join those foolish skeptics who claim that everything that exists and, even more, everything that is expressed in words is ambiguous and uncertain; but at the same time Diodorus’s opinion, which he defended against Chrysippus, has been exploded: he argued that no word was ambiguous, but there are more things than words and there is an enormous number of things without names, which we cannot signify by their own names, but by borrowing terms from elsewhere.106

§35. But if a word means several things, either one of the meanings is proper and the other improper, or both are proper. Thus, library properly stands Edition: current; Page: [318] for the place where books are kept; improperly and as a trope it stands for the books kept there. Thus, arms properly refer to the tools that we use in war; improperly they mean armed men. Iron in the proper sense means a certain kind of metal, but used as a trope it stands for iron weapons.

§36. If each of two meanings is proper, then either one is contained in the other, or neither contains the other.

§37. The former occurs either when the name of the genus is distinguished from that of a particular species—for example, when women are distinguished from virgins; also, when the terms adoption and family relationship are understood differently; or when the name of the species is used for an individual, as is the case, for example, when the reference is to a man, a horse, etc.; or when one particular proper name is common to several individuals—for example, if someone who knows several people called Stichus has bequeathed something to Stichus; or when the masculine term includes the feminine (man and horse are examples); or when a term in its technical sense has a broader meaning than it does in common usage—death, for example, etc.

§38. Yet there are an infinite number of cases where there are two different meanings for one term, and neither contains the other. One example is when gallus stands for a bird and a human being,107 jus for a food or a certain location,108 etc. Thus the meaning of mine and yours is ambiguous in the verse of the poet: “Paulus bought the songs, Paulus recited his songs”;109 “Fabulla swears that the hair she bought is hers.”110

§39. Sometimes there is also ambiguity in joined words and in the context of speech. This usually is the result of excessive brevity, when the words Edition: current; Page: [319] that made the meaning clear have been left out. For example: “my heir should give a hundredweight of the silver vases chosen to my wife. You will receive a hundred thalers when it is convenient.”111

§40. Yet, a speech that is burdened and encumbered by abundant and superfluous words can also render the meaning of the words ambiguous or obscure. An example is, if someone bequeathed the estate, as he had been taught to do, and added: “with furnishings and slaves”; or if after the furnishings have been bequeathed, he should superfluously name certain kinds of furnishings out of inexperience; or if someone in making a promise says: “I sing of arms and the man112 and I pledge.”

§41. (5) Muddled speech produces obscurity when interpretation suggests either meaning to be false. But this perplexity can have its origin in the words alone, for example, if someone determines his heirs by saying: “If Titius will be heir, may Sejus be heir. If Sejus will be heir, then may Titius be heir.”

§42. Or obscurity stems from chance circumstances. For example, the law says that a woman who has been raped may either choose the rapist’s death or to be married to him. A man has ravished two women, of whom one chooses his death, the other marriage. Or let us assume there is a law that a brave soldier should have the right to demand something as a reward. But then there are two brave soldiers who demand the same young woman. Or let us assume there is a law that he who begins an uprising has to suffer punishment, while he who ends it may ask for a reward. The same person began and ended an uprising and seeks a reward. A person making his last will had said: “I legally bequeath my estate to Titius, if the Lex Falcidia Edition: current; Page: [320] does not apply in the case of my last will.”113 This estate was worth a hundred gold coins, but apart from that he had already bequeathed three hundred, and when he died he had less than four hundred. Another person said: “I leave to Titia all my weavers, except for those which I have already bequeathed to someone else; to Plotia I leave all my serfs, except for those that I have already left to someone else.” There were, however, servants who were both serfs and weavers.

§43. (6) The incompatibility and conflict of two statements is another cause of obscurity. This incompatibility, however, is first detected in the application of different laws, which do not contradict each other in their wording, to a particular case, which is such that neither law can be applied at the same time. For example, one law says that a statue of the person who kills a tyrant should be put up in the gymnasium. Another law says that there should be no statue of a woman in a gymnasium. Now a woman has killed a tyrant. Another law says: “He who killed a tyrant may demand whatever he wants from the magistrate, and the magistrate should grant it.” Another law states that, when the tyrant has been killed, the magistrate should kill his five closest relatives. The tyrant was killed by his own wife, who asks for her son, whom she had with the tyrant, to be spared as a reward. A law says “Nobody should walk about in public bearing arms on a holiday.” Another: “Nobody should remain at home once he has heard the signal indicating a public disturbance, but should be at the disposal of the magistrate in the marketplace with his arms.” Then a disturbance occurs on a holiday, etc.

§44. As is evident from these examples, this form of incompatibility is particularly close to the previous, final kind of complexity; thus, if we examine the nature of each more carefully, they are perhaps best not considered examples of the obscurity of words and declarative interpretation, for the sake of which we discussed this doctrine in advance. Instead, they are to be considered either cases of subjective obscurity or a matter for another form of interpretation, above all, restrictive interpretation.

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§45. This kind of obscurity occurs in particular (and with some frequency) when there is a conflict between two precepts of natural law that have been either republished by God or formulated by human theorists of natural law; or it occurs because of external circumstances that render the meaning of a particular law unclear. A law says that one should give alms. Another, that theft must not be committed. Now, someone has committed a theft in order to give alms. It is said that a favor deserves a favor in return. Your father and a patron who has bestowed immense favors on you are present at the same time, but your affairs are such that you will have to give preference to one over the other, etc.

§46. What is more relevant here is that kind of incompatibility when two propositions appear to be mutually contradictory, even without reference to a particular case, such that one affirms what the other denies (though this seems to be a form common to declarative and restrictive interpretation). This is so if this incompatibility occurs in a single context (for example, if the testator in the same will at times declares someone an heir unconditionally, and sometimes on certain conditions, or if he bequeaths something and then takes it away again; or when Ulpian says somewhere114 that the father must first name an heir, then appoint a guardian for his son and must not change the order in which this is done, and soon he [Ulpian] adds that the appointment of the guardian is nevertheless valid if someone first appoints a guardian for this son and then names an heir, even though this is the reverse order). Alternatively, this incompatibility may occur in different locations. There are infinite examples of contradictions of this kind in Roman law.

§47. We then need to consider the sources of the conjectures we need in order to remove the obscurity of words. This obscurity is such that it either can be removed with the help of the rules of sound interpretation or does not allow for any remedy.

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§48. In the former case we need to take into account (1) the matter itself and its nature, with which the legislator or the contracting parties are concerned. Hence the rule that words are to be understood according to the underlying subject matter. Related to this is the following principle of the logicians: predicates have to be compatible with their subjects. Yet our formulation is broader: we not only judge the predicate according to the nature of the subject, but sometimes the subject is determined by the predicate, for example, if we say: “The canis sparkles”115 or “The gallus flies.”116

§49. The use of this rule, however, extends to all kinds of obscure meaning. We can often quite effectively guess the meaning of words that are difficult to hear or are written in poorly legible script by taking into consideration the subject matter. So, if I am unsure whether a person I am speaking to, or who has written to me, wanted to say merx [good/commodity] or merces [wages], we need to assume the former whenever it is about a sale and the latter if we are discussing a particular job. And if I do not know whether someone wanted to write evictum [evicted] or edictum [edict], the presumption is in favor of the former if it is about trade. But if the debate concerns the faults of something that has been sold, then it may well be the case that he wanted to talk about an edictum.117

§50. Moreover, in the case of obsolete, new, or foreign words the subject matter sometimes helps to shed some light. Thus, people who learn languages as adults, when they have no teacher and searching in dictionaries would be very tedious, successfully guess the meaning of an unknown word from their knowledge of the adjacent words. Thus, for example, when an author who writes in German, but is used to mixing in French words, has written: “A person who has married an old but rich woman for her money, diverts himself with Cato at home.” The underlying material indicates he meant that this person was amusing himself with some Edition: current; Page: [323] young woman in the household. It does not mean, as someone ineptly and circuitously tried to interpret it, that he amused himself at home by adopting a grim, sulking expression typical of [the ancient Roman statesman] Cato.

§51. Moreover, the subject matter often resolves ambiguity. Thus, if a library has been bequeathed, library must be presumed to stand for books; if the construction of a library has been ordered, library must refer to a building. And thus those who have been commanded to put down their irons have met this demand when they have laid down their iron weapons. Thus, if someone has been prohibited by a treaty from carrying arms into the territory of a third party, this refers to soldiers; if enemies are ordered to hand over their arms, this refers to the instruments of warfare.

§52. Sometimes the subject matter also indicates whether someone intended to use a word in the broader or stricter sense. For example, in feudal matters the term heir stands for the male heirs, not for any allodial heirs, etc.118

§53. If it is said, therefore, that a Frenchman [Gallus] conquered a province, it is clear that we are speaking about a human being, not the bird. So, when I have said, “Here is my book,” there is no doubt that I have acquired ownership of it. But if someone speaks of “his hair,” this usually means that he has not acquired it elsewhere, etc.

§54. Thus, in the above example119—my heir should give a hundredweight of the silver vases chosen to my wife—the extreme brevity of the expression (which the testator could have avoided if he had said “which he” or “which she had chosen”) has caused obscurity; the subject matter and the purpose of the inheritance, among other things, show that the decision should be made in favor of the wife, not the heir.

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§55. The subject matter is also important if ambiguity is caused by an abundance of terms. If, for example, someone has promised the furnishings and at the same time lists certain kinds [of furnishings], but not all, I would think that (abstracting from all other circumstances) only the furnishings that are listed are owed—if the promise is gratuitous; but if the promise is onerous, in exchange for something, then [it is to be assumed that] the other furnishings are owed too.

§56. We shall now have to think about further examples, where this rule helps in interpreting muddled or contradictory speech. What we have put forward so far will be sufficient evidence.

§57. There is another rule that is related to this first one and appears to be included in it. The learned usually refer to it separately; they say that it is based on the context of the relevant passage: “in the interpretation of every speech one must pay attention to the preceding and subsequent passages; what lies between them is assumed to be adapted to and to relate to these.” Here Celsus’s warning is pertinent: it is harsh to judge or respond unless we take into account the entire law; we must not draw on one small snippet of it.120

§58. For the context is to be taken into account, so that it is clear what the underlying subject matter is.

§59. If we think about this a little further, it will be evident that a conjecture based on the subject matter is only similar to a conjecture based on related passages; the two are, however, not identical, since the rule concerning the subject matter can apply even when there are no preceding or subsequent passages; and the rule concerning context can be used even without taking the subject matter into account. Take, for example, the case when either of two meanings of an ambiguous term squares with the underlying subject matter or if the text does not seem to make any sense at all.

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§60. An example of the former is when I say: “The gallus is cooking”; and an example of the latter, if for example the legal text of a stipulation declares that the second person gave a pledge promising the first person some grain. In the preface, however, it is mentioned that the transaction between the contracting parties concerned ten bushels.

§61. Therefore (2) there is this general rule, which is based on the use of context: “Obscure phrases are to be explained using the statements of the same author that are clearly expressed elsewhere or in the same place, that is, in the preceding or subsequent passages (which are linked by their proximity) or in other passages by the same author which are formulated at another time.” These are described as linked by their common origin. An example is if I left someone a third of my house in my will and then wrote in the codicil: “I bequeath to Titius one hundred coins, apart from the share in the house.”

§62. I believe that the usefulness of this rule extends to any kind of obscure meaning, including obsolete, new, foreign, cryptic, and conflicting words, whenever they can be explained. I believe this principle also applies to the following rules, and it is enough to have said so once.

§63. (3) Another rule is based on the effect of the words. This states that words are to be explained in such a way that their effect does not undermine the matter at hand, and that the effect they have does not lead to some absurdity. This would, for example, be the case if the explanation conflicted with human or divine law.

§64. Thus the Athenians caviled when they promised in a treaty to give up the lands of the Boethians and then denied that the lands were those of the Boethians since they [the Athenians] had occupied them with their army. Similarly, when the law threatens harsh punishments to anyone who draws blood in the street, it would be absurd for a barber to be punished for opening another person’s vein in the street. The same rule serves to resolve the controversy between Protagoras and Evathlus in favor of Edition: current; Page: [326] Protagoras.121 The case of the person who wanted to free Cratinus when he only had a slave called Cratistus is relevant here too.122

§65. (4) The disposition of the person is also very important in interpretation. From this is derived the rule that obscure words are interpreted on the basis of the disposition of each person. If, therefore, someone established Titius as his heir, and there are several persons called Titius, then that Titius will be the heir whom the deceased evidently loved most.

§66. (5) Related to this preceding rule is the conjecture that is derived from the quality of the person. For very often words are to be explained according to the condition or rank of the person who is speaking or to whom the speech is addressed.

§67. Thus, if a scholar left someone all his papers, that includes the books, though normally books are not included in the term papers in the proper sense. If someone promised a dowry or left another person an income, this will have to be determined according to the condition and rank of the person to whom this was left or promised.

§68. (6) Above all, the reason for the law or agreement must be taken into consideration. Therefore, that interpretation of a law should be adopted Edition: current; Page: [327] which accords with the reason of the law, and that which is out of tune with it must be rejected.

§69. Moreover, the reason for the law is twofold: one is the reason that caused the legislator to make a law; the other reason is his intention in making the law.

§70. The intention of the legislator is usually, if not always, directly contrary to the cause that impels him to make this law. And so it is obvious that we must look to both when applying this rule.

§71. When farmers, therefore, were prevented from gathering the harvest because of their duties in law courts, this provided the Romans with the occasion for introducing holidays at harvest time; the intention was that these impediments should cease.

§72. Similarly, the high price of food, or the prince’s fear of it, may cause him to ban the export of grain; the intention is to prevent high food prices.

§73. The fact that a law is often applied to a case that has nothing to do with the occasion for the law is no obstacle. Thus, the holidays at harvest time also benefit those who have nothing to do with the harvest.

§74. You have to remember that in this and the other rules we are speaking of conjectures about the tacit will of the legislator. These conjectures cease to apply whenever the express words of the law state something different, as in the above matter concerning the holidays during harvest time.

§75. There may be other circumstances which suggest that we need to go beyond the intention of the legislator or the occasion for the law when we interpret it. This might be in order to avoid the increase in lawsuits or for whatever other similar reasons there may be. Such circumstances are not to be neglected; one conjecture must be balanced against another.

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§76. Thus, usufruct was invented so that bequests would not be destroyed, but after it had been invented, it was not inappropriate to believe that it could also be established among the living by way of agreement.

§77. But this is also clear from the fact that Roman law rules that a deficient cause of a legacy does not automatically render the legacy null and void; and yet there are cases in which the same laws have allowed a legacy to be rendered null and void because of a deficient cause. To remove this apparent conflict, or rather to show the difference between these two [cases], most learned jurists propose a rather clever distinction between an impulsive and a final deficient cause, implying that the absence of the latter, but not the former, undermines the legacy. But there are other, very different reasons to be put forward here.

§78. The testator, for example, might say: “I give Titius one hundred because he took care of my affairs.” Imagine that this is a case of a deficient cause.123 Then what will you achieve with the help of this distinction? Will the legacy be valid to a greater or lesser degree? For if the cause had been true, then taking care of his affairs would have been the impulsive cause, while the reward for doing so was the final cause. And thus in similar cases these two types of causes occur simultaneously.

§79. However, we must not confuse these two reasons for laws and pacts with the reasons that jurists use in demonstrating particular conclusions on the basis of more general laws—for example, when the reason for saying that the child of a female servant is not a fruit [of slave ownership], because fruits are created for the sake of other humans, or as is said more correctly and circumspectly elsewhere, because female servants are not bought in order to bring forth children, etc.

§80. For (1) we are at present concerned with the reason of a law or pact that requires interpretation, not with the reason justifying an interpretation that has already been put forward. (2) We are concerned with an Edition: current; Page: [329] interpretation that rests on topical and probable arguments, not with an interpretation that is, so to speak, demonstrative and derives particular conclusions from a general axiom (for example, that usufruct is established in order for the usufructuary to benefit from all fruits, for the sake of which something is usually acquired).

§81. If, therefore, the reason for a law or pact has been inserted into the law or pact itself, then the interpretation will not be that difficult. But very often this reason will be concealed. Hence, new conjectures are necessary to elicit the reason before an appropriate interpretation is possible.

§82. It does not appear to be possible to use rules to identify these conjectures because of the infinite variety of circumstances that occur here and because the variety of these conjectures is also infinite.

§83. Examining them successfully requires political prudence when the interpretation of public laws and pacts is involved. When the agreements of private persons are concerned, it requires great economic prudence, or, if we may say so, commercial prudence in the interpreter. This prudence cannot be acquired in academies and schools, but is the result of polite and familiar social intercourse with those who know about these matters.

§84. A great help in interpreting public and private pacts is, above all, erudition that is based on the diligent reading of histories, as well as specific knowledge of what preceded particular pacts or treaties. It is, therefore, in the interests of the parties to a treaty, who sign, for example, a peace treaty in good faith, to make the terms of the peace settlement publicly known.

§85. This is enough on declarative interpretation: we must not neglect the other two forms of interpretation, namely, extensive and restrictive interpretation. As far as extensive interpretation is concerned, the first five rules we provided for declarative interpretation will rarely, if ever, be applicable, while the rule we have just explained, concerning the reason of the law, is common to all three forms of interpretation.

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§86. If we are discussing the means of removing any kind of obscurity, we need to retain the meaning of the obscure word or phrase that conforms most closely to the reason for the law.124 This is especially useful if a term has two meanings, one broader, the other stricter. Hence, if, for example, the prince has banned the export of grain, the term grain covers either all types of cereals or only wheat or some other kind of grain. That depends on whether a high price, which was the prince’s reason for making this law, is feared for all or only some kinds of grain.

§87. Yet even if the words of a law or pact are perspicuous and not ambiguous, then very often new cases emerge that may or may not be covered by the words of the laws, but concerning which there may be reason to doubt whether the law should be applied to them or not.

§88. Here we must draw almost exclusively on the reason behind the law. Extensive interpretation, therefore, usually rests on this rule: “Where the reason is the same, there the same law applies.” Or: “The effect of identical reasons is that the law and the pact must be applied to similar cases that are not explicitly included in their wording.”

§89. It must, however, be the same reason, not just a similar one. This is so even if the new cases are only similar but not identical to the cases covered by the wording of the law.

§90. But there is often more than one reason for passing a law, and according to the established opinion of philosophers a single thing can have several purposes, which either are all equally important, or one of which is the primary purpose while the others are secondary. It is, therefore, not universally necessary for the reason on which the extensive interpretation is based to be the only reason for the law.

§91. That will only be the case when the legislator had only one end in view.

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§92. If a single law has several reasons and these are equally important, it follows that all are to be considered together in extending the law, to avoid the mistake of separating them from each other. This is no different from natural phenomena, where all causes are required for a certain effect to be produced.

§93. But if one of these is the most important, I should think it is enough, if it alone is applicable to a similar case.

§94. In one word: the cause that justifies the extension of the law must be valid, and the legislator must have considered this cause in its general sense, so that he would have wanted to apply it to the present case, too, if he had foreseen it or thought of it. And this is so because otherwise the law would be useless or unfair.

§95. Thus, if a law prohibits accepting a plough as a surety, it will not be permitted to accept a ploughshare either. If the law commands that he who killed his father be sewn up in a leather sack, then he who killed his mother will be sewn up, too. If it is not allowed to drag someone away from his house before a court of justice, then it will not be allowed in the case of tents either. If an agreement exists between neighboring peoples not to surround a location within a certain distance with walls, then they cannot fortify this location with a rampart either if the reason for the ban is that this location should not be suitable for defense against military force. And if someone orders in his last will that Titius be his heir, if his posthumous son (whom he expected to be born) dies, then Titius will be heir even if it happens that no posthumous son was born to the testator.

§96. The elegant problem proposed by Lucian is relevant here. The law says that the murderer of a tyrant receives a reward. Someone entered the castle to kill the tyrant. He did not find the tyrant, but only his son, whom he killed, leaving the sword in the wound. Soon afterward the tyrant came and saw his son had been murdered. Out of grief he killed Edition: current; Page: [332] himself with the assassin’s sword. And so he who had killed the son of the tyrant claimed the reward due to a tyrannicide.125

§97. Lucian defended the case of the person seeking the reward with an argument that deserves to be taken seriously—that generally the same reasoning is held to apply to the person who killed and the person who caused death.

§98. But Erasmus of Rotterdam, in a speech for the opposing side, came up with an argument that implied the injustice of the demand. This is not as concise as Lucian’s, but the erudite exposition of various rules of good interpretation which are applicable to the present matter can easily compensate for the tedium that is the result of prolixity.126

§99. His [Erasmus’s] opinion is more pleasing, especially because he demonstrates at greater length that this deed of the pretended tyrannicide is not to be regarded in any way as the true and moral cause of the tyrant’s death.

§100. You see from the above examples that extensive interpretation has a place in both affirmative and prohibitive laws. Their main use is in preventing caviling and fraud, which are used by wicked people in order to evade the rules of law.

§101. Thus, a jurist drew a useful distinction by saying that a person acted against the law if he did that which was contrary to the words of the law (and the reason corresponding to these words); whereas he who acted contrary to the intention of the legislator, but did not violate the letter of the law, committed fraud in relation to the law.127

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§102. In general, however, the doctors of law distinguish between four kinds of fraud. The first is the result of exchanging one thing for another—if, for example, the law forbids lending money to the son of the family but the usurer lends him grain, wine, etc., and, similarly, if the prince forbids exporting grain or wool and someone exports flour or sheep. The second is based on substituting one person for another—if, for example, spouses, who are not allowed to present gifts to each other, substitute other persons, who then present gifts to the spouses. The third is the result of substituting a different contract—for example, if the same spouses [rather than presenting gifts to each other] sell each other precious objects for a single coin, or if a lender sells something to the son of the family when he is supposed to lend it. The fourth, finally, is the result of changing the form of a contract—if, for example, a woman who is not allowed to be a guarantor even when she is willing to act as such for someone else takes out a loan on behalf of this other person. This form, however, seems little different from the third, and we need to think further if there are not more ways to be found in which the law can be violated through fraud.

§103. Restrictive interpretation remains. Grotius says that this is to be sought in a defect in the original intention or a new case that conflicts with this intention.128 He claims that the first is the result of an absurdity, a failure of reasoning, or a fault in the subject matter. The latter occurs either because of some natural reason—for example, if equity or humanity requires us to diverge [from the letter of the law]—or because of some other indication of intention. This is evidently so if words elsewhere appear to conflict with the present law or pact in a particular case, etc.129

§104. We do not on the whole disagree with these conclusions themselves, but the method and the reasoning seem a little obscure, and in a certain respect to produce confusion. All interpretation must be based on the probable intention of the person who spoke, and that is not the intention Edition: current; Page: [334] he had some time before or may have some time after speaking. It follows automatically that restrictive interpretation must always be founded on a defect in the original intention, not on the subsequent incompatibility of a new case with the intention (to the extent that this is distinct from a defect in the original intention).

§105. Restrictive interpretation implies that the legislator said more than he meant and did not consider the case in question. Thus, it always presupposes a new case opposed to the intention of the speaker, and again I do not see how the original defect in the intention can be different from the incompatibility of a new case with it. We shall, therefore, see whether the question cannot be set out more conveniently.

§106. Extensive interpretation only takes into account the reason for the law or agreement. Restrictive interpretation, however, also allows for the other rules of interpretation. So (1) what we have said above concerning the underlying subject matter also applies here, since the speaker is always believed to have had this in mind, even if the words appear to be more widely applicable.

§107. Thus, if a fief has been granted to someone and his male descendants, then this is not taken to include his grandchildren from his daughter because that contradicts the nature of such a fief, which clearly excludes women and their descendants.

§108. And when a patron is banned from forcing a freedman to swear not to marry, then the underlying subject matter shows that this is to be understood of a freedman who can have children. Therefore, a patron who has demanded this oath from a castrated freedman is not punished.

§109. Then (2) the rule we pointed out above, that words are not to be interpreted in such a way that they have either no effect or an absurd and inequitable effect, has its uses even in restrictive interpretation. For nobody of sound mind may be thought to have intended something absurd.

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§110. Take the following law: “A courageous man may have what he demands.” If someone who has achieved feats of courage demands the land of a fellow citizen, who, however, after some time demands his land back as a reward for his courage, then the need to avoid absurdity implies that the law be explained in such a way that courageous men may not have their rewards taken from them.

§111. That is also the basis for resolving the controversy between Protagoras and Evathlus: the latter, after being condemned by the judges to pay [Protagoras’s] wages, could not have protected himself by appealing to the agreement. According to this it had been agreed that the teacher was owed the wages when the student’s law case was not successful. It would be absurd for someone to have agreed to something which would have made it more difficult for him to obtain what was owed to him on the basis of that agreement.

§112. The interpretation of law according to equity is relevant here. This is the correction of law when it is deficient because of its universality, and when it is shown on the basis of natural reason that a certain particular case is not comprehended in a universal law, because if you followed the letter of the law precisely then it could contradict natural and divine laws. That is deservedly considered absurd, since nobody can be obliged to something like this.

§113. Thus, a law may command that a foreigner who has climbed onto the city walls be punished with death, and then a foreigner climbs onto the city walls during a siege and repels the enemy who is scaling the ladder. Or a law orders that women are to be kept away from a certain place on pain of death; then they [women] enter this place in order to extinguish a fire. All punishment will then cease because the law of nature says that a good deed deserves a reward, not punishment.

§114. Grotius argues that this is also true even when it is not totally illicit to stick to the words, but when doing so seems too grave and intolerable Edition: current; Page: [336] to someone who examines the matter fairly—either by considering the condition of human nature in an absolute sense or by comparing the person and the matter in question with the actual purpose of the action.130

§115. Thus, he who lent another something for a certain number of days could demand it back earlier if he should have great need of it. If someone promises to help an ally, he will be excused if he is threatened at home and requires his troops. The concession of immunity from taxes and tributes is to be understood of payments that are made every day or annually, not those that supreme necessity demands and without which the commonwealth cannot exist.

§116. Yet I should think that these conclusions could be derived more clearly from the rule concerning the underlying subject matter. Indeed, Grotius himself tried to explain them on the grounds that the nature of beneficial acts is such that one should not assume anyone to have wanted to bind himself to suffer a great inconvenience.

§117. A case that can be more conveniently related to the point in question is if words from a different passage do not perhaps directly conflict with the relevant law or agreement, but cannot be observed at the same time as the law or agreement because of some circumstance at that particular moment. Then one will have to be restricted for the sake of the other. Otherwise, neither would have any effect, which would be absurd.

§118. But the question is which of the two must give way to the other. Generally it seems that the following rule must be observed because laws restrict human liberty and one does so to a greater degree than the other: “That law which binds the human will more closely should be preferred to that which imposes a less strict obligation.”

§119. The specific rules listed by the doctors of jurisprudence are relevant here. (1) A permission gives way to a prohibition. The reason is obvious Edition: current; Page: [337] because what is permitted clearly does not impose an obligation. We already noted at the beginning that permission is not properly speaking an effect of law.

§120. So if a law says that every Roman citizen is free to have a concubine, and another law declares that a soldier is not allowed to have a woman with him in a military camp, it is evident that the permission in the first law does not apply to the soldier.

§121. (2) What is commanded gives way to that which is prohibited. For the freedom of the human will is restricted within narrower bounds by negative precepts than by affirmative precepts, as we have shown above. For what is forbidden can be avoided at all times, but what is commanded can be put into action only at certain times.

§122. Thus, it reflects a preposterous sense of duty to steal leather and then give shoes to paupers instead of alms, though this example is more relevant to the fourth rule. You will get a more suitable example if you change it slightly as follows: “It is forbidden to steal in order to repay your creditor.”

§123. The reason we referred to in the previous rule is also applicable in cases other than the conflict of a negative with an affirmative precept. Therefore (3) that which must be done at a certain time is to be preferred to that which can be done at any time.

§124. Thus the observance of the Sabbath takes precedence before daily duties. The reason again is that a precept relating to a certain point in time is more strictly binding at that time than another.

§125. If, however, two duties conflict so that either both must be fulfilled at that time or neither of the two can be postponed easily, then (4) the imperfect obligation gives way to the perfect obligation. For since a perfect obligation is greater in degree, it is also believed to bind our freedom more strongly.

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§126. Thus, the repayment of debts takes precedence over the giving of alms.

§127. If each of two obligations is perfect, then (5) the more ancient obligation takes precedence over the newer since my liberty was already restricted by the older obligation at the time that the new obligation was imposed. Thus, an older debt should be repaid first.

§128. That is, unless a perfect obligation is linked to another, imperfect obligation with respect to the same person to whom I have the obligation, for then (6) the twofold obligation triumphs over the simple and more ancient obligation because of the rule, which everybody knows, that a twofold obligation binds more strongly.

§129. Thus, a more recent debt to a poor man is to be paid before another, older one to a rich man.

§130. If either obligation is imperfect, then (7) the law of beneficence gives way to the law of gratitude, because, as we have said above, in the latter case a person is under an obligation to show gratitude on two grounds: common humanity and the acceptance of a favor. Thus, here too there is a twofold obligation.

§131. Thus, if you have to choose between a poor patron and another poor person, even a relative, then the patron must take precedence.

§132. But this is only the case if both are poor. For if a wealthy patron wants a present from me and the beggar asks for alms, then the beggar takes precedence before the patron because the greater the poverty of the person who requires me to perform the duties of humanity, the closer does my obligation come to being perfect, as we have said above. In that case, therefore, we need to return to the fourth rule.

§133. It is, therefore, clear what is to be done if my father and my son come to me at the same time to ask for maintenance. For I decide as follows: Edition: current; Page: [339] as long as the son is not yet grown-up, he is to be preferred to the father, because I am under a perfect obligation toward him but under an imperfect obligation toward my father. If, however, the son is already grown-up, he is to take second place to the father, because the father is owed gratitude, etc.

§134. But if several people who have not granted me any favors demand a favor from me, then (8) the closer the relationship we have with another person, the more do the duties we owe to them outweigh the duties to others. The reason again is contained in the thesis: the wife takes precedence before the brother, the brother before the uncle, etc.

§135. In general, the rules we have listed so far appear to be limited by the following: (9) in the case of laws that are made by subordinate powers, the law of the inferior power gives way to that of the superior power wherever it is impossible to meet the requirements of both. Thus, God is to be obeyed rather than humans, and the commands of kings outweigh those of heads of families.

§136. (10) Other things being equal, the law that is more specific and more closely related to the matter at hand is preferred to the more general, since general precepts are directed to something by specific precepts.

§137. (11) A law is preferred to another insofar as its subject matter is superior to that of the other on the grounds of its nobility, utility, or necessity. For it is silently understood that the inferior obligation is to be fulfilled only if it is compatible with the more important obligation.

§138. Let us assume there are two laws. One says that nobody should carry arms in public on a holiday. Another states that nobody should stay at home if there is an alarm but should present himself armed to the magistrate in the market square. If there is an alarm on a holiday, then the latter law represents an exception to the former, of the following kind: “Nobody should carry arms in public on a holiday unless he is called out by the magistrate because of an alarm.”

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§139. Grotius lists several similar rules. Yet these are not as obvious, and there are reasons to have some doubts about them. One example is the following: “The prohibition that includes a penalty is to be preferred to that without a penalty, and that which carries a greater penalty is to be preferred to that which has a lesser.”131

§140. For just as a prohibition without a threat of punishment seems pointless, so the rule that of two evils the lesser is to be chosen is not applicable to moral evils.

§141. Thus, Grotius’s statement that if two agreements, one upon oath, the other not, clash and interfere with each other, then the former shall be preferred to the latter, reflects his belief that an oath adds a new obligation to a promise, a belief which we have already refuted above.132

§142. Finally, when he concludes that what was said last must prevail,133 that is not a matter for restrictive interpretation and a case where two laws only seem to be in conflict, but a case when all interpretation ceases and there is a true antinomy.134

§143. The rules on avoiding absurdity and iniquity in restrictive interpretation are sufficient to show this. (3)135 Finally, the reason for the law is of great importance in restricting the general words of a law. Hence the common axiom: “If the reason for the law ceases, so does the effect of the law itself.”

§144. As in the case of extensive interpretation above, so here too we need to distinguish whether there are one or several reasons for a law or agreement. If there is only one, then there is no doubt that the law must be restricted when that reason ceases.

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§145. But when there are several reasons for a law and one of them ceases, the others do not immediately expire and are not necessarily less able to sustain the efficacy of the law: sometimes, however, the law is restricted if only one reason is lacking.

§146. There can be no question that if a law or agreement has several reasons, each of which is equally essential, it will be enough if only one of them does not apply: the law will then have to be restricted.

§147. It is, therefore, likelier that right reason will suggest a narrow rather than an extensive interpretation. Indeed, as in all matters, it is enough for one cause to be missing for an effect not to be produced; and for the effect to occur, all causes have to be present together. In actions that produce an obligation it is therefore enough if one essential cause is missing for the interpretation to be restricted, whereas all causes have to be present to permit an extension [of the obligation to another case].

§148. If one out of several reasons is the principal reason and the others are secondary, then the interpreter must not refrain from restricting the applicability of the law if only the former ceases to be true, even if some of the latter can be applied to the case in question. But if one of the latter ceases, then there will be no need for a restrictive interpretation, as long as the principal reason is still valid.136

§149. The following will provide an example of restrictive interpretation on the grounds that the reason of the law does not apply. A law says that they who have deserted a ship because of a storm should lose everything [i.e., that they left on board]; those who remained on board become owners of the ship and everything on it. Assuming that because of the strength of the storm the entire crew deserted the ship and climbed into the rowboat, except for one person, who was so ill that he could not escape. By accident the ship is carried into a port unharmed. The sick man is in possession of the ship, but the original owner demands that it be returned.

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§150. Here the reason for the law was that he who risked his life to save the ship should be rewarded in some way. The sick man cannot pretend to have done so, since he did not stay on board for that purpose and did not contribute anything to saving the vessel.

§151. We should, however, note a few limitations to our rule. (1) It often happens that the reason for a law is not only unknown, but also such that some general rule of equity appears to suggest something different. If, however, the will of the superior has made itself clear on that matter, then it is right that subjects be ordered to accept this will as a reason that is sufficient to produce an obligation, until the prince who alone has the power to do so corrects the law on the basis of equity.

§152. (2) Finally, our rule [that a law ceases when its reason ceases] will only apply if its reason ceases to be true universally, that is, in other similar and common cases, not in specific, very rare instances.

§153. For example, a law says that a person under a certain age may not draw up a last will. The reason is that he lacks the required judgment. Let us assume that there is someone who has sufficient prudence before he has become an adult. The question is whether he is allowed to draw up a testament. The answer is no.

§154. Another example: a law says that the goods of minors may not be alienated unless there is a necessity to do so, and this has been introduced to protect them from being deprived of their possessions without due care. There is a case in which it is useful but not necessary for the minor to sell something. The question is whether the judge may be allowed to do so. The answer is no.

§155. Closely related to the previous observation is the following: (3) The reason for the law does not necessarily cease if its actual consequence ceases; if the potential consequence is still there, that is enough to prevent a restrictive interpretation.

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§156. That is, a law or agreement in which the legislator or the contracting parties have a particular reason in mind (say, the avoidance of a danger or some inconvenience) is not only valid in those cases when this [i.e., the danger or inconvenience] would actually follow, but also in those in which it is believed that this danger or inconvenience is likely to occur or could at least occur without great difficulty.

§157. Thus, if the law says that nobody should walk through the streets at night with torches, it is no excuse if someone claims he will use them with such circumspection that nobody will suffer any harm.

§158. And if a treaty between two nations says that an army or fleet may not be led to a certain location, and the purpose is to prevent actual harm being done to someone, then it will not be permitted to lead an army or fleet to that location even if there is no intention of causing harm. For it is enough that the person who is at this location could easily inflict harm on the other.

§159. We nearly forgot to mention the rule which is very widely used and commonly believed to be very far-reaching, and which therefore has a place in every kind of interpretation: that is, the rule resting on the division of matters into favorable and disagreeable.

§160. As far as declarative interpretation is concerned, nothing is better known than the common saying that what is favorable is to be interpreted more broadly, what is disagreeable more strictly.137

§161. This is quite similar to the rule that what is favorable is to be interpreted broadly, what is disagreeable narrowly, without making this a case of extensive and restrictive interpretation.

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§162. I do not know, however, whether this rule is as useful as it is commonly believed to be, and whether it is not more appropriate if we stick to the existing rules and do not complicate matters unnecessarily.

§163. For if you first examine the foundation of this rule, it depends on the classification of the subject matter we are talking about. So there is no reason why you should not be able to refer this to the rule concerning subject matter, namely that words are to be understood according to the underlying subject matter.

§164. If you then ask what is favorable and what is disagreeable, you will notice that the opinions of the learned vary rather a lot. Grotius distinguishes three kinds of promises: favorable, disagreeable, and mixed or middle ones.138

§165. He calls those favorable that involve an equal exchange and that take into account common utility. The greater and the more obvious this utility is, the greater, he says, is the benefit contained in the promise. Therefore, the benefit contained in those promises that are made for peace is greater than in those made for war, and the benefit involved in a war for the sake of protection is greater than that in a war undertaken for other reasons.

§166. He declares those to be disagreeable that burden one party more than the other, impose a punishment, render actions void, or detract something from what went before.

§167. If it is mixed—for example, if a person changes an earlier promise, but does so for the sake of peace—then this is to be considered either favorable or disagreeable depending on the magnitude of the good and the change. Other things being equal, however, the benefit is to be considered more important.

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§168. Also, given that Grotius uses this distinction in the case of promises, it may seem doubtful whether it applies to the interpretation of laws, too. Indeed, Grotius’s statement about equality and inequality cannot be applied to laws, which are always imposed on inferiors [i.e., subjects]. And yet there is nothing more common than for jurists to extend this rule to laws, for example, when they argue that favors conferred by the prince are to be interpreted broadly, penal laws narrowly, and statutes and all laws that derogate a general law only admit a restrictive interpretation.

§169. Second, you will not be able to find any human affairs that you could call entirely favorable or disagreeable, since these terms do not describe the essential nature of a thing, but its relation to the benefit or harm that humans receive from it; but what is harmful to one person may be useful to another. And if one and the same thing were beneficial to several people, then no conflict would arise between them, and there would be no need to interpret the law or agreement in order to remove such a contradiction.

§170. Third, although Grotius was concerned with providing specific rules on distinguishing the favorable from the disagreeable [in agreements], I fear that these are not very weighty if you abstract from the rules that we have provided above. Take the rules on what is favorable: what if it is agreed in a peace treaty to return captives of either side, and one side, which holds far more captives, wants to exchange captives individually while the other wants to exchange all captives on one side for all on the other. Then, based on Grotius’s comments, the latter claims that the exchange is a favorable matter since it is intended to make peace, and that therefore the formulation is to be interpreted broadly. The former, however, will insist that this would be an unfair treaty because it burdened one side more than the other and therefore was not beneficial.

§171. Then let us imagine there is a law that prohibits the export of grain and decrees a severe punishment for any exporter, and someone has exported flour. If someone wants to apply the rule concerning what is favorable and disagreeable, it is easy to see that according to it the exporter Edition: current; Page: [346] should not be punished because this law is to be considered disagreeable according to Grotius’s opinion. This is so not only because it restricts the previous freedom [to export], but also because it contains a punishment. Yet it is clear that this law is applicable to the present case because its reason is relevant.

§172. It is well known that in Roman law the solution of ambiguous cases was often based on the benefit involved; examples are cases concerning personal liberty or dowries. But here either one of the preceding rules is taken into account, or this [favorable] decision is made on the basis of civil law, which defines what is to be considered favorable. If it had not done so, the matter could not have been resolved. We, however, are concerned with rules of interpretation that are only derived from right reason.

§173. Fourth, Grotius’s rules on the use of what is favorable, in sum, are as follows: (1) In matters that are not disagreeable, that is, as I understand it, in those that are mixed, words are to be understood in their most common meaning. (2) In favorable matters, if an expert is speaking, the words can be understood in the sense peculiar to experts, but not in a contrived sense, unless this is to avoid absurdity and iniquity. (3) In disagreeable matters figurative speech is admissible to some degree for the sake of avoiding onerous implications. Grotius only produces one or two examples for each of these, which is not sufficient evidence for saying that they are universally true. There are many instances when these rules are not sufficient to clarify expressions with doubtful or obscure meanings; or even if the application of these rules does not conflict with right reason, it is possible to solve the problem without these rules concerning the underlying subject matter, effect, reason, etc.

§174. Thus while Roman law granted a legal action to someone who was deprived of his possessions, Grotius is right to say that this also applied to someone who was prevented by force from taking possession of his belongings. However, this is not on the basis of the first rule, concerning matters that are not disagreeable, but on the basis of the reason for the law, Edition: current; Page: [347] because Roman law thereby wanted to restrain all use of illegitimate force by private persons.

§175. Caligula,139 for example, denied the right of citizenship to the grandchildren of those people who had acquired it for themselves and their descendants, and claimed that only the first generation of descendants had been included. In this case there is no need to resort to Grotius’s first rule to demonstrate the iniquity of Caligula. It is enough to point out that the term descendants is clear, and Caligula lacked all reason for a restrictive interpretation.

§176. Similarly, I would not want to defend the deed of Aurelian by referring to the final rule concerning what is disagreeable; when he went forth to wage war in the East, he promised the people crowns weighing two pounds if he returned victorious. On his return, however, he gave everyone crowns made of bread.140 For that was a clear case of caviling, though the people cannot be excused for their stupidity in hoping for gold crowns.

§177. What we have said so far applies to the kind of obscurity that can be overcome and explained in a legitimate way by applying the art of correct interpretation. In other cases, which are so obscure that they leave the human intellect no possibility of discerning the meaning, the interpreter’s efforts will be wasted.

§178. If, for example, someone evidently says something without any meaning at all, or if what has been written is not legible, then it is impossible to examine it or understand what it means.141

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§179. It is a similar case if no conjecture concerning the will is possible: if, for example, the person making a will gave his children Titius as a guardian, but there are two persons called Titius, father and son, and it is not apparent whom he meant, then neither will be guardian. Or if someone said, “If Stichus will not be the heir, then he should be free and the heir,” then this substitution [of Stichus for himself] will not be valid.142

§180. Or if the will of the speaker cannot produce any result, as is the case in truly muddled cases such as the one above concerning Stichus’s replacement by himself.

§181. Thus, Julian wrote that it was useless, because muddled, to say “if Titius will be heir, then may Seius be the heir; if Seius will be heir, let Titius be the heir,” since the condition could not be fulfilled.143

§182. However, pace Julian, it seems to me not that the person making the will wanted neither of the two to be the heir, as Julian understood it, but that he wanted neither to be the heir without the other, just as if he had said, “Titius and Sejus are to be heirs; if one of them will not be heir, then the other one should not be heir either.”

§183. For since the formulation admits of this interpretation, we think it is to be preferred to the exposition by Julian, because it conforms more closely to the rule concerning the effect, which we have emphasized above.

§184. What appears to be more relevant here is the famous example of the agreement between Paris and Menelaus. The agreement was that Helen be given to the victor. When this agreement was repeated before the fight, it was said that he who killed the other should have Helen. Paris succumbed and saved himself by fleeing. Menelaus demanded that Helen be granted to him as victor, but Paris contradicted him, saying that he was still alive. The question was whether the repetition explained the earlier ambiguous Edition: current; Page: [349] agreement or whether the reference to the death of one of the combatants was only by way of an example. There are plausible conjectures for either opinion, and, it seems to us, they are evenly balanced.144

§185. Similarly, if there are evident contradictions within a particular speech, then interpretation ceases, because nobody could have wanted mutually contradictory things at the same time. Hence Roman law stated that where there are mutually contradictory statements in a last will, neither is valid. Also different passages that undermine each other but are uttered by the same party have no validity.145

§186. That is, unless one statement is more recent than the other. For what was agreed upon last by two parties overrides any previous agreement, and where two laws contradict each other, the more recent overrides any previous ones.

§187. Yet there is a serious, but very common violation of this last principle concerning contradictions, when interpreters of Roman law assert that there are no antinomies in the laws of Justinian.

§188. I am speaking of those jurists who labor to reconcile by whatever means possible a law that has been abrogated in one part of the Justinianic law with the law abrogating it, or different laws in the same part of the text that obviously contradict each other.

§189. I wish that the jurist who is otherwise very famous for disputing against Wissenbach had left out passages like the following more often: “We must try to resolve any antinomies by drawing more precise distinctions.”146

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§190. Indeed, that is a fine solution, which is rightly considered a violation of the rules for a good disputation, when someone does not try to understand the intention he is trying to interpret, but instead twists the intention of the other person to fit his own will.

§191. We will discuss this at greater length elsewhere. You, however, must learn that it is impossible for anyone to become a jurist by doing that; it leads away from the path of correct interpretation, to sophistry and caviling.

§192. Before we move on to another subject, we must stress that you must not apply the above indiscriminately to interpreting the divine will. For even though we said that the same rules of interpretation are used in explaining human speech and divine laws, yet we should not assume that everything we have said concerning the obscurity of words and the different kinds of obscurity is relevant to the divine will.

§193. For Scripture continues to be perspicuous even if one or the other passage is difficult to explain. There the rules of good interpretation are to be used, partly to remove our ignorance, partly to avoid caviling over the words of Scripture.

§194. Between the obscurity of the divine will and that of the human will there are many differences, some of which we will touch upon very briefly.

§195. (1) The obscurity of the divine will has more to do with the human intellect than with the words of God. In declarations of the human will the fault more often lies with the written text and the words, not the interpreter.

§196. (2) The difficulty of understanding Scripture confuses only the unlearned and sophists.147 The obscurity of the human will, however, has more than once caused problems for the most learned and wise people.

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§197. Therefore, (3) if you apply the rules of interpretation and, especially, apply the principle concerning passages that have a common origin, you can easily avoid this difficulty in the case of divine precepts. The obscurity of the human will, however, is often inexplicable.

§198. (4) For you will not detect any confusion in divine laws, but you will do so in the laws and agreements of humans.

§199. (5) You will also not be able to show a genuine contradiction in the precepts of God, but an infinite number can be shown to exist in human laws, whatever a Tribonian148 may protest to the contrary, etc. As far as the rest is concerned, ask the theologians.

end of the second book
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BOOK III

O how difficult is truth for the ignorant, and how easy to those who know!1

—Lactantius, De orig. error., chap. 5
  • To the most noble and excellent Mr. August Heiland, etc.,
  • patron and most honored relative,
  • member of the aulic council of justice of
  • the most serene and lofty prince and lord,
  • George William, duke of Brunswick-Luneburg, etc., etc.,
  • Christian Thomasius,
  • who is about to rid himself of his lazy torpor
  • and embark on a most amiable exchange of letters,
  • and at the same time
  • is about to congratulate heartily
  • his most noble excellence
  • on his marriage
  • to a very select young woman,
  • dedicates
  • this third book of the Institutes,
  • which is mainly concerned with marriage
  • with all required reverence.
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CHAPTER I: On the Duty of Man Toward Fellow Humans in General

§1. So far we have considered the duty of humans generally, living in any kind of society. Now we must turn to the precepts guiding particular societies.

§2. At the beginning we explained what a society is and how many different forms there are.

§3. At the same time we reviewed the natural forms of societies, conjugal, paternal, master-servant, household, village, province, commonwealth, and finally the society of nations.

§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.

§5. And this instinct to form a society is either common to both states, namely that of innocence and that following original sin, as in the case of conjugal society or paternal society, or it is specific to the postlapsarian state, as in the case of the relationship between master and slave, the village, municipality, province, and commonwealth. We have discussed both of these at the beginning of this work.2

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§6. You could describe the first instinct as internal since God created it together with man, the latter as external because it is mainly the product of need and the fear of danger.

§7. We will discuss the latter at greater length below, when we examine civil society, and sacred history does not allow us to doubt the former.

§8. We would be insulting the divine will and the history of the state of innocence if we wanted to argue that a corrupt appetite is the reason why humans desire conjugal society more than civil society, as if this were about the pursuit of pleasure rather than something honest.

§9. Even Aristotle recognized this, although he was a pagan. Man, he said, is by nature made to a greater degree for marriage than for civil society, because the household is prior to and more essential than civil society, and because the procreation of children is common to every kind of living being [not just humans].3

§10. But the most important reason in moral matters is based on the purpose of something, and so societies are distinguished from one another mainly according to their purposes, and certainly ought to be distinguished from each other on that basis.

§11. There is no doubt concerning the purposes of the three simple forms of society: conjugal society is introduced for the sake of procreation, paternal society for the sake of educating the offspring, and the master-servant relationship for the sake of producing the material goods that are necessary for life.

§12. Composite societies need to be examined more carefully. As far as the household or the family is concerned, we shall not inquire in detail whether paternal society is necessary for that or not. More precisely: a Edition: current; Page: [356] complete family requires a threefold combination of a paterfamilias with a wife, children, and servants. If one of these is missing, it becomes a more or less incomplete family, depending on how essential the missing member is.

§13. The purpose of the household is defined by the normal activities of the paterfamilias, and thus it either has the same purpose as the master-servant relationship, or, more probably, combines the purposes of the three simple societies: for you could quite appropriately describe the procreation of children and their education as the normal activities of the paterfamilias.

§14. Thus, the creation of a household in fact involves no new purpose that is different from the purposes of the simple societies [that compose it].

§15. Next comes the village or country district. These two are said by some to differ in that the village is defined by the proximity of inhabitants, who do not, however, have their own magistrate or leader, while the country district is based on a certain form of government. And yet, according to the common usage of philosophers these two terms are used interchangeably, so that depending on the hypothesis a village may be credited with a form of government, while a country district is not.

§16. The Peripatetics say the purpose of the village is to provide a benefit that is not needed every day (such as protecting flocks of sheep from wolves, driving away a nocturnal burglar, extinguishing fires, putting up fences that have been blown down by the wind, etc.).

§17. Civil society is said to have two purposes; one is the ultimate end, which is eÈdaimon¤a, that is, the true beatitude associated with civil society, not for one person alone but for the entire population; the other is a subordinate end, namely aÈtãrkeia, or the sufficiency of external goods and defenses, which is such that we live with more refinement than in a Edition: current; Page: [357] country district and are able to drive away not only a petty burglar at night but also a large band of robbers.

§18. The discrepancy between these two purposes leads to a difference in the respective material foundations of villages and civil societies. The material of a village is an undefined number of families (though there has to be more than one) that is sufficient for providing the essential benefits that are not needed every day. A civil society, however, consists of several villages, since it requires more families than a village does. This is necessary for the first purpose, because it is not possible to have a range of magistrates and laws cannot be enforced unless there is a fairly large number of people. It is also necessary for the second purpose, because in addition to peasants which are sufficient for a country district, there is a need for merchants, artisans, and soldiers.

§19. Yet when we examine this opinion more carefully, it seems that there are some doubts about it. First, this difference of ends is not described accurately by the terms, because there is no doubt that autarky [aÈtãrkeia] can also refer to less-frequent benefits for humans, so that the purpose of a country district differs from that of civil society in degree rather than in kind.

§20. You then might want to reply that there is still a huge difference in that the only purpose of a village is to offer these less-frequent benefits, while autarky is only the secondary purpose of a civil society and that we therefore need to place greater emphasis on true beatitude as the ultimate end of a civil society; this end cannot be obtained in a village, because no village as such is based on an agreement according to which one neighbor turns another from being a bad man into a good one. Yet here, too, there are many grounds on which we can reply.

§21. Second, beatitude in civil society can only mean peace and common tranquillity. And whatever circumlocution you use, this tranquillity is guaranteed mainly by establishing a defense against violent attempts to disturb it. That defense I would consider part of happiness rather than Edition: current; Page: [358] autarky. Yet in a sense this tranquillity is obtained in a village, though the degree is different: it is said that repelling a nocturnal thief is one of the purposes of a village, while it is that of a civil society to defend itself against a powerful band of robbers.

§22. Moreover, it does not seem contrary to the agreement on which a village is based for one neighbor to turn another from a bad man into a good one. For those who insist on the opposite assume that the nature of a village requires neighbors to be equal, so that none has the right to punish the other.

§23. But that argument not only begs the question but is opposed by Aristotle himself, who insists that the country district is above all a settlement established by households. And while the household is ruled by the oldest person in it, settlements are ruled on the basis of kinship.4

§24. Third, concerning the examples the Peripatetics use to explain the less-frequent benefits provided by a village, you will see that here too some list things that leave no or very little difference between a village and a civil society: they include buying, selling, fighting, plowing, trading, etc., all of which activities contradict the above statement that for a country you only need peasants.

§25. Fourth, the above examples are not enough to distinguish the village from the family, especially if the latter is not reduced to the minimal number of people. For why should a paterfamilias with a couple of servants not be able to drive away a wolf, repel a nocturnal thief, extinguish a fire (under normal circumstances), put up a fence, etc.?

§26. Moreover, fifth, turning to the basis of a village and that of a civil society, just as the Peripatetics do not dare to specify the minimum number of families required for the constitution of a country district, so, sixth, it is not universally true that a civil society must have several villages.

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§27. For what would prevent a large number of families from being assembled in one village in which some heads of families act as magistrates, others as peasants, merchants, artisans, and soldiers?

§28. The Roman Republic is an example: in the beginning it consisted of only one village. He who argues that this is no civil society denies the existence of a civil society where there is a republic—that is, he denies the essence of a thing although its form is present.

§29. Hence we have said above that a civil society sometimes consists of several families, sometimes of several villages, and sometimes of several provinces. Villages and provinces therefore differ from civil society not so much in kind or in terms of their ends, but in the way that parts differ from the whole.

§30. For just as a civil society is large or small, it has more or fewer parts. Sometimes, therefore, you can divide it into several provinces, provinces into several villages, villages into several families; and sometimes, if the territory is more extensive, provinces can be divided into lordships or districts, and these in turn can be divided into several villages.

§31. And perhaps that is the reason why Aristotle in his Politics first examines the three simple societies and then immediately goes on to discuss the commonwealth. He refers to households and villages only briefly, in passing, and never talks about provinces and the other possible parts of great states, because these societies lack a specific purpose that is different from that of civil society.

§32. Thus, all you can expect from us is an assessment of the duties of humans in the three first societies. Following that we will immediately move on to the state.

§33. And this is where the Peripatetics usually stop, because they do not go on to the society of nations, even though it is one of the natural societies, as will soon become clear. Their argument is that civil society is the Edition: current; Page: [360] most perfect of all societies because its end is civil beatitude, which is not obtained in societies that are greater than civil society.

§34. Nevertheless, we will go on searching, partly because the Peripatetics’ argument does not seem very reliable, and partly because it is still unclear whether civil society is always the most perfect form of society.

§35. For even if we were happy to admit that the perfections of civil society are greater than those of the common society of nations, as we will explain shortly, civil society, nevertheless, is not to be preferred automatically to all larger societies. At the very least it does not deserve to be preferred to a society that is formed by the confederation of several commonwealths.

§36. For treaties are usually concluded for the sake of either commerce or military aid. The former are intended to preserve autarky, the latter happiness. Either purpose makes it evident that states by themselves are often incapable of achieving their ends and therefore are not the most perfect kinds of societies.

§37. Thus, while a society formed by allied states is not natural, but artificial, and it is not directed toward a new purpose that is different from that of the state, a society formed by allied states often fulfills the ends of a state better than the state does and comes as close as is possible to being a natural society, even though it is artificial. We will, therefore, need to say something about treaties (after having talked about civil societies).

§38. And following our discussion of treaties, we shall not neglect to examine the duties in a common society of nations, even if this society does not achieve the perfection of civil society. That argument [that the society of nations does not achieve the perfection of civil society] is not sufficient [to justify not examining the duties in a common society of nations].

§39. For otherwise there would be nothing to say about simple societies either [because these too do not achieve the same perfection as civil society].

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§40. The argument that it is enough for someone in the state of nature to progress to the most perfect condition possible presents no obstacles. For we have already refuted the opinion of the Peripatetics that he who teaches a discipline must first form some idea of perfection.5

§41. What is more likely to persuade us to refrain from discussing this kind of society is the fact that it does not appear to have a purpose different from that of the state; it is only directed toward tranquillity or happiness [like the state].

§42. But that is no problem. Happiness in civil society is not the same thing as the common happiness of humankind.

§43. Yet we cannot deny that particular precepts which occur in all other societies are not to be expected in the society of nations, because the purpose of this society provides a standard for all other ends in its constituent societies. Therefore, the general axioms which will hold true here necessarily apply to the other societies, too.

§44. These, however, will be nothing other than what we have already been concerned with in the previous book.

§45. Yet a discussion of the duty of nations toward each other will not be futile, since two important subjects from the law of nations, on the inviolability of legates and the right of burial, will provide an excellent opportunity to form particular conclusions from these general precepts.

§46. But, you will say, all this discussion will be in vain if there is no society of nations. That is true, but there is a society among the nations, because the whole of humankind is united by a particular purpose.

§47. We have already spoken about this purpose, which is general peace and tranquillity. The union of all humans toward this end, however, can Edition: current; Page: [362] be demonstrated from the fact that there is a shared right among all humans to obtain this end.

§48. Clearly, if nothing else holds this society of nations together, certainly the precept about preserving equality, and the four duties derived from it, does, which we have pointed out in the previous book.

§49. Since these are absolute and predate all human convention, they show at the same time that the society among nations is entirely natural and not artificial. Grotius very appropriately called this the society formed by reason and speech,6 and we have so far described this as the natural state in the simple sense, insofar as it is opposed to the civil state.

§50. Camillus, in Livy’s history, recognized this when he said that he was associated with the Falisci by a natural society.7 Among the philosophers Cicero often stressed the universal society of mankind.

§51. But we must not confuse this society with a world society, which the pagan philosophers, and especially the Stoics, discuss more than once. They believed this to be wider than the society of nations and to include the gods as well as humans. This is wrong, and insofar as divine jurisprudence is concerned we have already made a few comments about the society of man with God and have explained these at greater length elsewhere.8

§52. We also believe that it is not appropriate to describe this society of nations as a universal commonwealth of all humans. There is no commonwealth without sovereign political power [imperium], yet the society of nations lacks human sovereignty, and is the only natural society after the fall from grace that is a society of equals.

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§53. And that is why the society of nations is less perfect than civil society. The society of nations is alluring because it is free and impervious to any kind of subjection, but in comparison to political society it has several inconveniences attached to it in this corrupt state of humanity, because the security of individuals receives too little attention in it. There [in the society of nations] everybody is protected by his own strength, while in political society he is protected by the strength of all others. There nobody can be certain of the fruits of his industry, whereas here they enjoy all of them. There passions, war, fear, ignorance, and savagery rule, whereas here you find the rule of reason, peace, security, knowledge, and benevolence.

§54. It is not true that there is no society among those who do not know each other personally, or by reputation, or by some other means, as we, for example, do not know the inhabitants of Novaja Zemlja.9

§55. For this objection only suggests that in this society there is not such a close friendship as in others. It cannot be inferred that there is no society at all.

§56. For if there is a single society between the citizens of an empire, such as the Saxons and the Bavarians, between the citizens of a principality, such as the inhabitants of Leipzig and those of Dresden, and among the inhabitants of a town, as is clearly the case, the fact that there is no close friendship does not mean there is no society at all, even if not everybody knows everybody else.

§57. Having said this, we must now briefly inquire more closely into the precepts that guide the duties of allies in general. There is no doubt, I believe, that all and each of the precepts we have demonstrated at greater length in the previous book also apply to individual human societies.

§58. Apart from that we must examine the basic kinds of society. As we have explained above,10 a society is either mixed or equal (the only purely Edition: current; Page: [364] unequal society is that between God and humans, and that is not relevant to this book). In an equal society, the society of nations, these precepts are enough.

§59. All other natural societies are mixed, and in such a mixed society, insofar as it includes political power [imperium], there is an additional, particular precept that pertains to inferiors and subjects: Obey the person who holds political power in such a society.

§60. This follows not only from the first practical principle which we demonstrated at the very beginning of this treatise.11 It also follows from the definition of a mixed society, which would not be mixed if the person holding political power did not have the right to demand obedience from the others.

§61. It is also based on the preservation of sociality, because the peace and tranquillity of humanity would be greatly disturbed if the inferiors in particular human societies did not obey their superiors: if that were the case, it would be impossible in the present state of corruption to obtain the purpose of most societies, about which I shall say more soon.

§62. The command to keep agreements also often reinforces this obedience, because political power is in most cases introduced on the basis of an agreement.

§63. I say “in most cases.” We need to avoid two extremes here. One is the belief that all political power has its origin in agreement; the other is the opposite belief that all power has its immediate origin in the divine will, without human agreement.12

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§64. We believe that political power is to some extent produced immediately by God, and to some extent is based on an agreement (in the way that an agreement sometimes contributes to producing a right or obligation, as we have explained above). The matter will be made especially clear when we discuss the individual types of societies.

§65. Here we must note, however, that the origin of a law, which orders obedience to the holder of political power, must not be confused with the origin of political power itself. The former law is entirely natural, and is evident from ratiocination, without either divine or human revelation. But ratiocination is not always enough to understand that political power in a particular society belongs to this or that person. Sometimes it is necessary to be aware of an agreement in order to know on whom this agreement has conferred political power. That is the case in civil society. Sometimes this knowledge even presupposes divine revelation and universal positive law, as is the case in conjugal society.

§66. As we have shown, the three main varieties of mixed societies are characterized by specific ends, as is the commonwealth, which is a form of composite society. Thus there is an additional, very specific precept of natural law for these: “Do what necessarily furthers the purpose of each society, and avoid that which necessarily disturbs it.”

§67. Otherwise a society would not be a society because its purpose defines its essence.

§68. It would also be a violation of the first principle of divine jurisprudence, that God, the author of human society, must be obeyed; of the precept concerning keeping agreements insofar as societies are based on an agreement; and of one of the specific precepts in the previous book, for example, those concerning the duties of humanity, insofar as the purpose of a society rests on such a precept.

§69. But one thing can have several purposes, and one purpose may also be the principal purpose of a society, while the other or others are secondary. Edition: current; Page: [366] Right reason tells us that our rule applies to the primary purpose, because this is what gives a society its specificity.

§70. This will, therefore, always take precedence over secondary purposes.

§71. With regard to establishing a society there is the following rule: “If it is certain that the primary purpose of a society cannot be obtained by the people who want to enter this society, then there will be no society, nor must this society be permitted even if a secondary purpose could be attained that would not be possible outside this society.”

§72. I say: “if it is certain.” For if there is a hope that people who are temporarily prevented from doing so are capable of achieving the primary purpose by natural means, at least to some degree, then such a society is permissible, even if it is better for them to refrain from it.

§73. Let us turn to the foundation of societies. Let us assume that some people who were capable of entering a society have done so. Then this society will not be dissolved immediately if one or the other of the people involved have become incapable of living in this society and there is no hope that they will recover their ability to do so. It will not be permissible then for one person to withdraw from the society against the will of the other, and sometimes a command of the superior prohibits a person from withdrawing even if both sides agree.

§74. The use of these observations is evident in various societies, and above all in conjugal society.

§75. Insofar as natural jurisprudence is concerned, you need to expect nothing more there than that we apply precepts that so far have been presented in summary form, in part by forming particular conclusions on that basis, in part by resolving certain controversial questions.

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CHAPTER II: On the Duty of Man with Regard to Conjugal Society

§1. Let us start with simple societies, because civil society is composed of these. Among these, conjugal society is the most natural, because all humans generally feel an instinctive desire within themselves to enter such a society.

§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.

§3. Yet it seems that the main reason for this difficulty is that divine laws were often mixed with human laws; ignorance led to the confusion of natural law with universal positive law, or their separate discussion was sometimes neglected because of the purpose or the argument of the work.

§4. In truth, God has reinforced no other society of human beings with as many particular precepts as conjugal society. We shall therefore make every effort to separate these precepts from the law of nature, although we shall start with the latter. We shall thereby be better able to explain later what revelation adds to reason.

§5. But first I repeat the following, based on the hypotheses I have demonstrated so far: (1) By natural law we mean nothing other than the law Edition: current; Page: [368] we have defined above, and the foundation of which, as we have shown, lies in the necessary conformity and nonconformity with the social, that is peaceful, nature of man.

§6. (2) The conclusions or questions that occur here are to be examined according to the axioms listed in the preceding chapter, which all derive from this source [i.e., natural law].

§7. (3) It automatically follows that the justice or injustice of the actions we are dealing with must be decided on the basis of these rules and that actions they clearly do not refer to are to be considered permitted, if we leave aside divine revelation.

§8. (4) Yet we must take care to note that the term permitted action is not absolute, but stands in relation to a law, and describes that which is neither commanded nor prohibited by that law. When you find the term permitted action in the earlier part of this chapter you therefore must not assume that this action must be permitted under divine law. There we are only speaking of the law of nature. But there are many things forbidden by positive law that are not covered by natural law.

§9. (5) Furthermore, even if what is called permitted lies somewhere in between precepts and prohibitions, this middle is not to be understood as a single point, but allows for some leeway: it is sometimes closer to a prohibition, and sometimes closer to a command. That is similar to the way in which the Peripatetics use the concept of the mean in explaining their concept of virtue.13

§10. For those actions that further sociality or the purpose of a society by accident, but not necessarily, are closer to being commanded. On the other hand, those actions that disturb this purpose by accident are closer to being prohibited. If, therefore, we abstract from divine revelation, it Edition: current; Page: [369] is more laudable to do the former and refrain from the latter. We shall, therefore, here add a degree of permissibility.

§11. (6) Thus you must not be surprised if the final part of this discussion will show that some actions that on the basis of natural law seem closer to being commanded are prohibited by divine positive law. For divine prudence cannot be measured by the standards of human prudence, and it must be sufficient for us to know that these kinds of actions are not essential to sociality, especially as it may often be the case that several circumstances occur in one action at the same time, one of which tends to further sociality, while another tends to disturb the public peace. Thus, if we had no divine revelation, our reason would often be unsure whether it is more laudable to perform or refrain from such an action.

§12. (7) Also, we must not ignore what we stressed above, that the following argument is not valid: actions that are commanded or forbidden in sacred Scripture are considered honest or despicable by heathens; therefore, they are part of natural law.

§13. Thus there is a reason why Grotius is criticized by his commentators: he believed that to prove natural law you had to use the testimonies of philosophers, historians, poets, and orators, even if he does not claim this argument to be demonstrative or say that it should be used indiscriminately.

§14. Grotius states: “When many men of different times and places unanimously affirm the same thing for truth, this ought to be ascribed to a general cause; which in the questions treated by us, can be no other than either a just inference drawn from the principles of nature, or an universal consent. The former shows the laws of nature, the other the law of nations. The difference between which is not to be understood from the testimonies themselves, but from the quality of the subject.”14 This merits several comments.

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§15. First, it seems very unconvincing when he says that a common assertion by many people in different times and places must have its origin in some universal cause. By “many people,” the philosophers, historians, poets, and orators he appeals to, he obviously means Greek and Roman writers. If there are no other arguments to explain their consensus, no reason will persuade us that it must be ascribed to some universal cause, because these nations were separated from one another by no great distances; they could easily form a tacit consensus on certain matters as a result of constant commerce, the affairs of war and peace, and a certain similarity of life and manners.

§16. So, when Grotius lists the universal causes that are evident from the testimony of nations, he lists too few of them. He only appeals to the dictate of right reason and common consensus. He evidently has forgotten that at the beginning of his erudite work, among the universal laws binding all of humankind and the nations, he himself had also included some form of law based on the divine will, which he had not derived from the principles of nature or the consensus of nations.

§17. And as we have shown above, this was more than once the cause behind the statements of pagan philosophers.15

§18. At the same time, we dismissed the idea that the law of nations properly speaking differs from natural law in kind. It is therefore not necessary to put forward any more arguments against that which Grotius adds here concerning consensus and the law of nations.

§19. Finally, Grotius himself admits that the question what is and is not natural law must be determined not so much on the basis of the testimonies of pagans as on the basis of the nature of the matter. Thus it is evident that it would be safer to leave aside this argument from the common opinion of pagan philosophers.

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§20. And this will have to be emphasized more strongly. For when the authors who have tried to explain conjugal duties resolve the more intricate controversies, they often claim that some action is prohibited by natural law, but they do not provide a reason for the prohibition. Instead, they present the testimony of some pagan philosopher instead of a reason, as if this were a splendid thing to do.

§21. Let us turn to the matter at hand. Any human being contemplating his nature, without the aid of revelation, will detect within himself some secret propensity and strong desire prompting him to join with an individual of the opposite sex. If he examines these inclinations, he discovers that God has implanted this as a mutual affection in each of the two sexes.

§22. He also realizes that the origin of these desires is in the constitution of the body rather than the mind, not only because man often senses these desires while thinking of some other thing, or notices that they pre-empt and stimulate his thoughts. It is also because one finds similar desires in beasts. Hence, there is an opportunity to compare human nature with the constitution of beasts.

§23. It is noticeable that animals are forced by these desires to copulate at certain times in the year, and that this copulation is intended by nature for the purpose of procreation. Once this has happened, however, the male often deserts the female, and the latter alone bears the burden of giving birth and feeding the offspring.

§24. But he [man] feels that his desires are not limited to certain times of the year but are in some sense perpetual. He realizes that the parts of his blood are more agile [than those of beasts] and his spermatic vessels are stronger. They are, however, also designed for the purpose of procreation.16

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§25. Furthermore, he recognizes that this inner inclination is linked to a feeling that is unknown to beasts, namely love. Under its influence he believes that, even without physical contact, a greater part of his own happiness depends on the benevolence of a certain person rather than on the benevolence of other people; he is saddened if he is hated or disliked by that person, and is more deeply affected by this person’s delights than his own, and shares this person’s pains.

§26. Moreover, while beasts do not distinguish between individuals, man detects within himself a variety of instincts, the causes of which he often does not know, so that he may feel no love or even the opposite of love toward one particular individual, which then directs him toward one rather than the other person.

§27. Moreover, men feel a strong affection for the offspring that has been conceived and born from a woman.

§28. Finally, humans of either sex generally feel a desire for sexual intercourse, even if they cannot produce offspring—for example, if the woman is already pregnant, or if for reasons related to civil society or peaceful coexistence they cannot form a union for the sake of begetting children. Even then they feel a particular pleasure in the act of intercourse, which is the main cause of this desire in the first place. Those who consider the matter carefully see that in beasts it is a different matter.

§29. For it is only with difficulty that a mute animal engages in intercourse after conception. And since arguments related to civil society or peaceful coexistence do not apply to beasts, these cannot be the reason why they do not follow their natural instinct for begetting offspring.

§30. Properly speaking, beasts feel no pleasure in copulation, because, as we have said above, they lack all reason and internal sense, yet some sort of appearance of reason and of this kind of pleasure is evident in beasts.

§31. Anybody can on the basis of his own, inner experience realize that pleasure is a form of thought that is either immediate or joined with Edition: current; Page: [373] reflection on a pleasure that is either present, or past, or future. You cannot predicate either of a beast, because it does not think or reflect in any way.

§32. There is a difference between these three forms of pleasure: present pleasure, more than any other, affects man in strange ways and leaves a particular impression on his imagination and memory. When he thinks more carefully about past pleasure, he is often stimulated by renewed desire, even if its object is absent, and he is inclined toward lengthy meditations on future pleasure.

§33. Should you want to compare the pleasure felt by man with the appearance of pleasure in beasts, you will notice that the action producing this pleasure is common to man and beasts, even to the extent that man tries to shake off the rule of reason (which otherwise separates man from brutes), and very often succeeds in doing so.

§34. For beasts are driven so vehemently by the desire for procreation that, whenever they feel it particularly keenly, they can barely be restrained with beatings and superior force, which is otherwise sufficient to suppress their other inclinations. Likewise in humans the idea of the moment of immediate pleasure presents itself so appealingly to man that in that instant he cannot conceive any greater good, even if reason, once it is free from these charms, soon shows him that the opposite is true.

§35. For that reason humans sometimes lose their self-control, if their desire for copulation is frustrated for a long time, and perpetrate deeds they would otherwise never commit.

§36. For even if the excess of other passions pushes humans toward actions that are incompatible with the dictate of reason, the reason for this can be attributed either to poor education, or habit, or some specific circumstance which man could easily repress some time before the excess occurred.

§37. But the frenzy of lust (which is what we have been speaking about so far) is common to all humans and sometimes draws even well-educated Edition: current; Page: [374] and reasonable people away from the path of reason, to such a degree that their behavior hardly differs from madness.

§38. The origin of this tendency is unknown to humans without divine revelation. Therefore, if he wants to use [natural] reason alone, he cannot but infer that the cause of the lust as of the madness is natural.

§39. When he believes that madness is the result of more particular factors, while lust is inherent in the nature of all humans, he will necessarily compare the two and consider madness to be nonnatural or even contranatural and accidental, while lust is a natural passion.

§40. Now, since he knows that man does not get his nature from himself, he can construct an argument, based on an absurd assumption, leading him to conclude that the creator of man instilled this passion in him.

§41. So you see how blind our reason is without the light of Scripture. Thus it is easy to anticipate whether you can expect any reliable conclusions from comparing the preceding reflections, the truth of which will be evident to anyone from experience, with the precepts and rules of natural law we have explained so far.

§42. If you first consider the duty of man to enter marriage, your natural reason, insofar as it is correct, will not deviate greatly from the divine will. Reason will tell you that the difference between the sexes and the natural ability given to humans to procreate through physical union reflects the will of the Creator that we should fulfill this natural possibility.

§43. This is all the more true because man realizes that the mutual attraction between the sexes is greater than among beasts, as is the affection toward his offspring. He sees that one reason for this, among others, is to prevent him from neglecting this important duty, out of carelessness or because of the burdens associated with giving birth or educating children, and because children are often the cause of hardship and cares. For without this care humankind would not survive.

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§44. Natural law has written into the human heart the precepts for other actions which humans are driven to by a natural appetite, such as self-preservation or the love of offspring and its upbringing. Similarly they feel that they are under a kind of obligation to procreate.

§45. For one should not believe that there is no need for a law in these and similar actions, just because instinct and sensual appetite are enough to impel man to such actions. The reasoning should rather be turned on its head: nature wanted these duties to be performed very thoroughly because they immediately help to preserve humankind; and because nature lacked confidence in the dictate of reason she ordered that it be supplemented with an instinct so strong that man can resist it only with great difficulty.

§46. But here we need to distinguish between different instincts, in case someone claims that we want to measure man’s obligation indiscriminately by his instinct. We are not talking about those instincts that are not directed to the safety of humankind, that have their origin in some forbidden deed, or that violate the law of nature we have already demonstrated. Thus, you will contradict us in vain by pointing to the instinct of a mother to kill her [illegitimate] child out of fear and in order to avoid infamy.

§47. The first precept, therefore, that directs the duties of man with respect to marriage is this: “You should marry.”

§48. Its general reason is the preservation of sociality. For since matrimony is the foundation of a social life, humans will also be obliged to enter marriage, just as they are required to do all other things that are necessary for that end [of sociality].

§49. But the precept to preserve equality also produces this obligation. For one pair of humans is not enough to live peacefully in the current condition: the increase of humankind is necessary to obtain that end, and our parents were induced by this obligation to beget us (whoever we are and however many we are). Our concern for equality also leads us to take Edition: current; Page: [376] care of ourselves and our companions, as well as of future companions. Otherwise, as one person dies after the other, it can easily happen that the longest-lived lead the most miserable life of all.

§50. Yet at the same time this reason shows us what type of precepts (apart from the general axiom that equality must be preserved) our precept belongs to: the law commanding the duties of humanity, because by producing a child we benefit others in general and without an explicit agreement.

§51. And we do not only benefit those who are joined with us in some form of society, but also our descendants, who at present exist only in our loins. For they too are to be considered as if they were already born, whenever we consider their well-being.

§52. The reasons offered indicate that our precept belongs to the group of the indefinite and indeterminate precepts, which do not bind individuals necessarily and at all times.

§53. Such affirmative precepts not only require an appropriate opportunity for their fulfillment. We must also repeat what we have emphasized above, concerning the performance of the duties of humanity: they place us under an imperfect obligation, which is to our own advantage.17

§54. Hence, the appropriate time for contracting marriage depends not only on age or the suitability for procreation. There also has to be a decent livelihood, the ability to maintain a wife and the children that are to be born. The husband also has to be suitable for taking on the role of a head of household. And sometimes present conditions and current duties do not permit considering marriage.

§55. Therefore, it is not only unnecessary, but stupid, for young men to think about wives when they cannot guarantee anything but hunger for Edition: current; Page: [377] themselves and their dependents, will fill the state with beggars, and know little more than boys do.

§56. They act correctly who delay marriage in order to cultivate their mind during celibacy and learn to perform outstanding services to human society. This is something that married men are not able to do to the same degree, because of the customs of civil society or the dispositions of women.

§57. Nor should those people be criticized who realize that they are able to remain continent and lead a celibate life, and that they can benefit humankind or their civil society to a greater degree by remaining celibate than if they were married. We must not believe that they are obliged by nature to allow feminine charms to put a brake on their glorious pursuits.

§58. Far less do those have to fear criticism who have children from a previous marriage and do not want to impose the burden of a stepmother or stepfather on them, even though second marriages are not to be considered illicit in themselves since they do not always mean that children from the first marriage will be badly cared for.

§59. All this is to be understood in the sense that [the duties of] humanity should not be disturbed just to avoid disturbing the purposes of marriage.

§60. It is appropriate that we examine these now. It is not enough to know that there is a command to enter marriage unless we also know what marriage is. Its essence, however, as we have said in the case of other societies, depends on its purpose.

§61. It is evident that the term marriage is commonly used among the nations to describe that society which is formed for the sake of cohabitation. Thus it follows that whatever nature determines as the purposes of cohabitation are also to be considered the purposes of marriage.

§62. But as we have already said above, human beings are led to desire a union for two reasons, procreation and the suppression of lust.

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§63. Left to his own devices, man regards both of these as natural: the former because he sees that there is no use for the human seed other than producing a child; the latter because experience teaches us that generally all humans are driven by an internal instinct to enjoy this kind of pleasure.

§64. It follows that man in that case regards these as the two true purposes of matrimony.

§65. But it often is the case that, if there is more than one true purpose, then one is more important, or should be more important, than the other. The first of these is then termed the principal end, the latter the secondary. We therefore must inquire into these two purposes of marriage.

§66. If the matter were to be decided on the basis of a casual comparison of human nature with that of beasts, one might conclude that the extinction of lust is the primary purpose of marriage, because we have noted above that the procreation of children is common to man and beasts, but the stimulus of lust is specific to humans.

§67. Yet we will not allow this cloud to obscure the light of truth. We also showed at the beginning that even though beasts do not experience lust in the proper sense, there is an appearance of it that is very similar to lust.

§68. We argued there that this appearance of lust is similar to lust in humans, in that lust overthrows the rule of reason. Also, that which is greatly contrary to reason cannot be the primary end of a society.

§69. On these grounds it is common for the more egregious, or even all, forms of intercourse motivated by lust to be designated by the term bestiality, not only in Latin, but also in the languages of other nations.

§70. Finally, in resolving questions of natural law we must first look not to the secondary and accidental differences between the essences of man and beasts, but to the primary difference, which is reason; reason consists in Edition: current; Page: [379] sociality, sociality in tranquillity, and that is based on the general precepts we have discussed earlier.

§71. All these concern the common utility of humanity, which should be the basis for the utility of individual humans. It necessarily follows that the procreation of children is the principal end of marriage, the suppression of lust its secondary aim.

§72. For the former is intended to benefit all of humanity, the latter only particular individuals.

§73. Add to this the fact that the procreation of children simultaneously extinguishes lust, but it is not true that every suppression of lust leads to procreation. Therefore, the former act is more natural than the latter, since in it common and individual utility are linked to each other.

§74. Apart from these two purposes of marriage there is a third, according to the common consent of the learned: mutual assistance. In order to understand this more accurately, it must be noted that marriage can be considered either in itself, without regard to other societies, or in relation to a family, of which it is a part.

§75. In the former respect it is covered by these two purposes. In the latter it is also directed toward mutual assistance within the family.

§76. But here too you can divide mutual assistance into ordinary, which is that within a family, and extraordinary or subsidiary, which remedies the failings of another form of society.

§77. Ordinary assistance is when the wife helps the husband in educating the children, directing the servants, and acquiring and preserving material goods.

§78. Extraordinary assistance takes place when the head of the family is too poor to pay for male servants and maids. Then, the absence of a Edition: current; Page: [380] society of master and servants means the husband will have to do the work of the male servant, the wife that of the maid.

§79. But I think it is clear from the above that each of these two forms of mutual assistance belongs to the secondary purposes of marriage, the former because it concerns the external relationships of the married couple, the latter because it presupposes a deficiency.

§80. Incidentally, you should note that by mutual assistance writers generally mean something that is distinct from the first two ends.

§81. Since, therefore, human societies are defined by their primary purposes and it has been demonstrated that procreation is the primary purpose of marriage, it is easy to formulate the following axiom (leaving aside revelation): “Marriage is the society that is entered into for the sake of procreation.” Similarly, a society that does not have procreation as its aim is not to be considered a marriage.

§82. Therefore, before we move on to the precepts that spouses ought to observe, we have to show the conclusions that can be derived from the two principles by rigorous argument.

§83. As far as the affirmative [principle] is concerned, it was obvious at the beginning from the teachings about society in general that the essence of marriage does not begin with the fulfillment of the purpose and the act of conjunction itself. Here the common rule applies that the purpose is what is intended first and put into practice last. And so the marriage is valid as soon as consent has been given to achieve its purpose.

§84. And this is where the common argument of jurists is relevant: consent, not sexual intercourse, makes a marriage. By that is meant not only what we have just said, but also that sexual intercourse without an agreement to be married cannot be considered a marriage, because it is not clear whether this was done for the sake of procreation or only for that of satisfying lust. We will see more about this in the explanation of the latter, negative principle.

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§85. Moreover, what we have noted above concerning consent and the nature of agreements in general needs to be repeated here when we are talking about consent in entering a marriage. For that reason the contracting parties need to have sufficient command of their reason, and there must be no unjust fear caused by either side.

§86. It is the same with fraud: if we abstract from divine revelation and the specific customs of various nations, we do not distinguish between a fraud that occurs with respect to an essential part of the marriage and one that relates to what are called accidental features—for example, if someone persuades the other that he or she is rich, noble, a virgin, etc. For while there is no doubt in the former case that there is no marriage, as far as the latter is concerned, the rule we have just explained leads us to the same principle,18 that fraud must never benefit the guilty party, but that it is left to the discretion of the damaged party whether he or she wants to rescind the contract or force the other party to offer compensation for the damage.

§87. We do not change anything in cases of error either, insofar as that is distinguished from fraud. For we said that, if in doubt, an error must always harm the person erring, unless the circumstance concerning which he erred was added to the promise explicitly as a condition.

§88. From this we infer that error concerning a person, if there is fraud on the part of one of the contracting parties, does render a marriage void, which is what happened to Jacob.19 But if this is not the case, the marriage remains valid—for example, if someone promises Titia to marry her when he thinks she is Caja, [it is valid] as long as he does not say that he wants to marry her as Caja.

§89. Also, an error concerning virginity does not prejudice a marriage if the spouse did not mention it in the marriage vows.

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§90. It is different if there is an error concerning the sex or the ability to beget children, because then the purpose of a marriage cannot be obtained, and these two qualities must be part of the promise as a condition.

§91. If there is an error c