The Secularisation of the Confessional State: The Political Thought of Christian Thomasius (Ideas in Context)

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THE SECULARISATION OF THE CONFESSIONAL STATE

Christian Thomasius (1655–1728) was a tireless campaigner against the political enforcement of religion in the early modern confessional state. In a whole series of combative disputations – against heresy and witchcraft prosecutions, and in favour of religious toleration – Thomasius battled to lay the intellectual groundwork for the separation of church and state and the juridical basis for pluralistic societies. In this ﬁrst book-length study in English of Thomasius’s political thought, Ian Hunter departs from the usual view of Thomasius as a natural law moral philosopher. In addition to investigating his anti-scholastic cultural politics, Hunter discusses Thomasius’s work in public and church law, particularly his disputations arguing for the toleration of heretics, providing a revealing comparison with Locke’s arguments on the same topic. If Locke sought to base toleration in the subjective rights protecting Christian citizens against an intolerant state, Thomasius grounded it in the state’s duty to impose toleration as an obligation on intolerant citizens. i a n h u n t e r is a Fellow of the Australian Humanities Academy and an Australian Professorial Fellow in the Centre for the History of European Discourses at the University of Queensland. He has held visiting positions at Johns Hopkins University and the Herzog August Bibliothek. His previous publications include Rival Enlightenments (Cambridge, 2001) and (jointly edited with Conal Condren and Stephen Gaukroger) The Philosopher in Early Modern Europe (2006).

ideas in context Edited by Quentin Skinner and James Tully

The books in this series will discuss the emergence of intellectual traditions and of related new disciplines. The procedures, aims and vocabularies that were generated will be set in the context of the alternatives available within the contemporary frameworks of ideas and institutions. Through detailed studies of the evolution of such traditions, and their modiﬁcation by different audiences, it is hoped that a new picture will form of the development of ideas in their concrete contexts. By this means, artiﬁcial distinctions between the history of philosophy, of the various sciences, of society and politics, and of literature may be seen to dissolve. The series is published with the support of the Exxon Foundation. A list of books in the series will be found at the end of the volume.

THE SECULARISATION OF THE CONFESSIONAL STATE The Political Thought of Christian Thomasius

IAN HUNTER University of Queensland

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521880558 © Ian Hunter 2007 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2007

ISBN-13 978-0-511-37911-6

eBook (NetLibrary)

ISBN-13 978-0-521-88055-8

hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Preface Acknowledgements

page vii xii

Introduction

1

1 Religion, politics and the university

21

2 The reform of philosophy

51

3 Natural law as political psychology

84

4 Staatskirchenrecht: the religious rights of the prince

113

5 The toleration of heretics

142

Appendix: On the right of Protestant princes regarding heretics Index

168 207

v

Preface

As one of the few books in English on Christian Thomasius (1655–1728) – at the time of writing there is only one other – the present work carries signiﬁcant responsibilities on behalf of its readers. It must render accessible a life and mind shaped by circumstances now quite unfamiliar – those of an academic jurisconsult to a princely state of the Holy Roman German Empire – while simultaneously doing justice to the most recent scholarship on Thomasius, most of which is in German. Above all, though, it must show what it is about Thomasius’s writings that makes them historically signiﬁcant, and why they should claim the interest of Anglophone readers today, three hundred years after his life and times. The historical signiﬁcance of Thomasius’s writings has been much contested, ﬂuctuating, sometimes radically, with shifts in the cultural and political circumstances of their reception, and with the forms of historiography and philosophy dominant in these circumstances. During his life he was attacked as a heterodox innovator by those whom he attacked for their authoritarian scholasticism and ‘political papalism’: the juristic and theological defenders of the Lutheran confessional state. Yet, among his students and in ‘enlightened’ circles in Protestant Germany and Scandinavia, he was widely admired in terms that Thomasius himself had helped to popularise. Here he was eulogised as a heroic campaigner against the confessional intolerance displayed in heresy and witchcraft laws, and as the harbinger of a new and enlightened epoch in the history of morality and nations that would be characterised by religious toleration, intellectual innovation and social peace. This view of him lasted well into the eighteenth century, carried not least in an academic genre that Thomasius himself had championed, the history of philosophy. He was thus given an esteemed place in Jacob Brucker’s massive Historica critica philosophiae (1742–44) as a torchbearer of a pluralistic eclectic philosophy against the sectarianism of the scholastics, a historiographic typology that Thomasius had introduced in his campaign against Protestant scholasticism. The resurgence of German university vii

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Preface

metaphysics during the eighteenth century, however, witnessed his progressive marginalisation, and in the Kantian philosophical histories that were written to secure the return of metaphysics his thought and actions were dissolved in a philosophical dialectic quite foreign to them. Disregarding the juridical, political and religious concerns that lie at the heart of Thomasius’s writings, and forgetting the fraught political and religious context that impelled them, these histories reduced him to the role of a worthy but minor philosopher. He thus began to appear as a failed Kantian whose ‘empiricism’ and ‘pietism’ left him incapable of penetrating the transcendental conditions of experience and morality – as if he had actually cared about such things. So deep was the shade into which Thomasius was cast by nineteenthcentury Kantianism and idealism that until the middle of the twentieth century he was the subject of only a few isolated works, typically juristic studies dealing with his place in the history of private and public law, or else works of Germanistik placing him among the champions of the national language and culture. We can see from Frank Grunert’s serial Thomasius bibliography that things began to change after World War II, with an increasing number of studies being dedicated to Thomasius, driven perhaps by a desire to reach back beyond the recent national catastrophe to an epoch where the promise of enlightenment remained unsullied. Many of the 1950s studies were also juristic, but the emphasis was shifting away from Thomasius’s works on private, public and church law and towards his natural law writings, which permitted commentators to pursue their driving concern with the moral-philosophical foundations of political and juridical orders. This shift was the harbinger of a major change in the academic reception of Thomasius who increasingly appeared not as a campaigning political jurist but as a philosopher attempting to order the relations between morality and law in a manner compatible with the liberal Rechtsstaat. The pathbreaking work in this regard was the doctoral research carried out by Werner Schneiders during the 1960s and published in book form, as Naturrecht und Liebesethik: Zur Geschichte der pratkischen Philosophie im Hinblick auf Christian Thomasius, in 1971. Important studies of Thomasius as political jurist continued to appear during the last third of the twentieth century, but these were now in an uncertain and uneasy relation to the dominant approach that viewed him as a moral philosopher concerned to provide a rational normative basis for law and politics. The most inﬂuential Anglophone discussion of Thomasius from this period, given in Lewis White Beck’s Early German Philosophy (1969), treats him as one of Kant’s philosophical ‘predecessors’, still struggling with the pietism and empiricism that Kant’s historical

Preface

ix

apologists had hung around his neck during the ﬁrst decades of the nineteenth century. Everyone working on Thomasius today owes a great debt to the scholars who renewed interest in him during the latter part of the twentieth century, without whose work the current ﬂourishing of Thomasius studies would not have taken place. Nonetheless, this resurgence has come at a cost. It has largely taken place under a philosophical-historical classiﬁcation – the Aufklärung – that makes it look as if Thomasius was an early participant in a single philosophically based cultural-political movement, one reaching its culmination in Kant’s critical metaphysics, moral republicanism and philosophical theology. I have already written about how damaging this approach is to our understanding of Thomasius and his fellow ‘civil philosophers’ – in Rival Enlightenments (2001) – and will not rehearse those arguments here, only their outcome: Thomasius was not an early participant in (what would become) the Kantian Aufklärung, sharing neither its philosophical interests nor its religious and political outlook. In fact, Thomasius was not a philosopher in the modern academic sense of the term, a sense powerfully shaped by the historical appearance of Kantian philosophy itself. For him, the whole business of providing ‘pure’ or universal philosophical foundations for juridical and political doctrines was at best a self-indulgent distraction; at worst it was a betrayal of the secularising tasks of jurisprudence and politics by a theosophical clerisy. By comparison with the enlightenment philosopher caught up in a worldhistorical cultural movement, the Thomasius that readers will encounter in the following pages is a far more speciﬁc kind of intellectual operating in a regional historical context. This Thomasius was a Protestant academic political jurist who drew on a highly distinctive array of disciplines circulating in the cultural realm of Protestant northern Europe: the critical public-law reconstruction of imperial Romano-canon law; the secularising natural law and political philosophy of Samuel Pufendorf; an anti-rationalist historiography of philosophy and theology derived largely from his father Jacob Thomasius; and an ethics whose Christian-Epicurean scepticism regarding knowledge of transcendent essences and norms issued in an aggressive focus on this-worldly happiness in civil society. Thomasius drew on this array in order to address a problem that was to some degree common across the entire geo-political realm of Protestant northern Europe – the political secularisation of the confessional state – but which in his case found its distinctive conﬁguration in the Religionspolitik of post-Westphalian Brandenburg-Prussia. The course of Thomasius’s life and work in this regard was symbolically set – as he never tired of saying – by his effective banishment from his

x

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Saxon fatherland in 1690. This was as a result of his attacks on the religious and juridical culture of the Saxon confessional state, launched provocatively in one of the academic bulwarks of Lutheran confessionalism, Saxony’s University of Leipzig. In ﬂeeing to neighbouring Brandenburg, where he played a founding role in the new University of Halle, Thomasius became a law professor and jurisconsult to a Calvinist dynasty, the Hohenzollerns, at that time represented on the throne by Elector Friedrich III of Brandenburg (1688–1713), who would soon be crowned as King Friedrich I of Brandenburg-Prussia (1701–13). In the struggle to impose their centralising religious and political reforms on Brandenburg-Prussia’s Lutheran estates and clergy, the Hohenzollern princeelectors – particularly Friedrich Wilhelm the ‘Great Elector’ (1640–88) – unintentionally provided Thomasius with the context for his lifelong intellectual campaign: to destroy the religious, juridical and political culture of the Protestant confessional state, whose exemplar was the Saxony from which he had been so unceremoniously expelled. Shaped in this context, Thomasius’s most characteristic writings bear little resemblance to those of a modern academic philosopher seeking rational grounds for truth and morality. They are overwhelmingly Streitschriften – combat texts – some of them engaged in a campaign to displace Lutheran Schulphilosophie (scholasticism), others intervening in the areas of public law (Staatsrecht) and constitutional church law (Staatskirchenrecht). These latter works were usually produced at short order in the genre of academic disputations, often via Thomasius’s doctoral students, as interventions in particular religious and political controversies. Typically, they aimed to criticise speciﬁc features of confessional politics and the confessional state – heresy and witchcraft prosecutions, Lutheran scholasticism and confessional jurisprudence, the clergy’s denial of the prince’s control over the public church – and to defend Thomasius and his allies from the attacks of the Lutheran jurists, theologians and philosophers who justiﬁed this kind of state. It is true that Thomasius’s writings cover a much wider spread of academic disciplines than this – including moral philosophy, logic, natural law, and the history of philosophy, theology and the church – yet it will be argued that his interventions in these disciplines are governed by his overarching political and juridical campaign, many of them in fact intended to transform the scholastic arts curriculum into a shape more suited to the education of secularising ‘gallant jurists’. It is also true of course that Thomasius himself was an academic, for many years dean of the Halle law faculty, and differing in this signiﬁcant regard from such English (near) contemporaries as Hobbes and Locke. Like other

Preface

xi

early modern universities, however, those in the Holy Roman German Empire were not founded to promote free-ﬂoating philosophical speculation but to train the orthodox clergy and expert ofﬁcials required by confessionalising churches and state-building princes. This functional integration of the German universities into church, state and estate accounts for their religious and political importance but also for their extraordinarily fractious character. Owing to fracturing of the old universal church and empire, academics became protagonists in the most vehement of disputes over religion, politics and their proper relation within the splintering framework of the imperial order. These disputes often led to the ofﬁcial conﬁscation of offending texts, sometimes resulting in their ceremonial burning by the public hangman, and occasionally ending with the arrest or exiling of their authors. Yet it was these Streitschriften, especially those written in the areas of public church law and Reichspublizistik, that would make the decisive contribution to the period’s most pressing concern: the achievement of religious toleration via the secularisation of politics and law. To this remarkable achievement, the highroad of metaphysical philosophy leading to Kant contributed little, and may even have been a dead-end in this regard. In discussing Thomasius, I have thus focused on his politicaljurisprudential writings, treating these as combat texts forged in the heat of his unremitting struggle with the intellectual defenders of the Protestant confessional state, while treating his philosophical writings as supporting interventions in the culture of Protestant scholasticism. Emerging in this context, his arguments for toleration and the state’s rights of religious supervision look quite unlike modern arguments grounded in a philosophy of subjective rights and freedoms. In interpreting Thomasius’s arguments by contextualising them in this way, I have attempted to clarify both the gulf that separates his circumstances from ours, as academic citizens of modern paciﬁed liberal states, yet also what it is about Thomasius’s thought that offers unexpected insights into our own situation. I have also attempted to do justice to both the vivid and pugnacious character of his writings and the intellectual ﬁrepower that they bring to bear on their targets. In support of this aim and considering the paucity of English translations of Thomasius – the ﬁrst English anthology of his writings appeared only in 2007 – I have appended to the book my translation of one of Thomasius’s notorious and celebrated disputations on heresy, ‘The Right of Protestant Princes Regarding Heretics’. Here readers will gain a sense of the verve and immediacy with which this indelible ﬁgure engaged a problem that was critical for him and has, unexpectedly, returned to confront us: the political governance of religion.

Acknowledgements

The writing of this book was made possible by the award of an Australian Professorial Fellowship, and I am thus grateful to the Australian Research Council for the rare opportunity to tackle a demanding topic with dedicated research time. I am also indebted to the University of Queensland’s Centre for the History of European Discourses, and its director, Peter Cryle, for providing a rich and congenial intellectual environment in which to do the work. Many friends and colleagues have helped me in innumerable ways as I worked through the initially unfamiliar forms of thought and language that characterise Thomasius’s jurisprudential, political and philosophical writings. I will not have thanked them all if I mention James Buickerood, Conal Condren, Horst Dreitzel, Robert von Friedeburg, Moira Gatens, Stephen Gaukroger, Barry Hindess, Chris Laursen, Jeffrey Minson, John Pocock, Michael Seidler, Quentin Skinner, James Tully and Simone Zurbuchen. Special appreciation is due to Thomas Ahnert and Frank Grunert with whom I have collaborated on the ﬁrst English translation of Thomasius’s writings – Christian Thomasius: Essays on Church, State, and Politics (Liberty Fund, 2007) – and spent many fruitful hours agreeing and disagreeing over just how to understand them. In this regard I am pleased to acknowledge my debt to Knud Haakonssen, whose work on Protestant natural law ﬁrst sparked my interest in Thomasius, whose encouragement has helped its development, and in whose Natural Law and Enlightenment Classics series the translation just mentioned has been published. It is also a great pleasure to express my appreciation for this, the latest debt that I have incurred to my friend and collaborator of many years, David Saunders. He read and provided shaping commentary on each of the following chapters as they were being written, and his own work on law, politics and religion has provided an important source of ideas and inspiration. Lastly, I would like to thank the anonymous readers of the book’s ﬁrst draft, whose suggestions for revision, under the sure and courteous editorial hand of Richard xii

Acknowledgements

xiii

Fisher, have resulted in a much improved ﬁnal product. I am grateful to the publisher of Eighteenth-Century Thought, AMS Press Inc., for granting me permission to republish a revised version of my translation of Thomasius’s heresy disputation in the appendix.

Introduction

What the historical record strongly suggests is that no one is above the battle, because the battle is all there is.1

In 1701 Christian Thomasius published a German translation of three of his recent Latin works, under the characteristic title, Dreyfache Rettung des Rechts Evangelischer Fürsten in Kirchen-Sachen (Triple Rescue of the Rights of Protestant Princes in Religious Matters). He was by then a celebrated professor in the University of Halle’s law faculty, in the newly amalgamated kingdom of Brandenburg-Prussia, and the three works had originated as disputations in Thomasius’s academic speciality, Staatskirchenrecht or public church law. Each of them argues for the sovereign’s right to exercise power over churches as social associations inside the state. In the course of one of the disputations he defends himself against a section of the Halle student body who, in enthusiastically embracing a recent polemic advocating a presbyterian Calvinist church, had taken Thomasius to task for his anti-clericalism: They further say that I should not only teach manners to the poor priests – which amounts to jumping the fence at its lowest point – but that I should be consistent and also tell home truths to the princes. I answer that I have occasionally also attempted this, but have gathered from many circumstances that I am not predestined for this work. Besides, they [the princes] have their court preachers who could and should better tell them this, and thus earn their pay. I would indeed have something to say to all the estates, because things go awry in all of them, but I have been charged by God to speak the truth to the clergy in particular. I am already so far engaged in this – which I do not from any hate – that I cannot now turn back. Still, we jurists must suffer the clergy reforming us from the pulpit, and must keep as quiet as mice about it.2 1

2

Quentin Skinner, Visions of Politics. Volume I: Regarding Method (Cambridge: Cambridge University Press, 2002), p. 7. Christian Thomasius, Dreyfache Rettung des Rechts Evangelischer Fürsten in Kirchen-Sachen (Frankfurt am Main, 1701), pp. 58–9. All translations are my own unless otherwise indicated.

1

2

The Secularisation of the Confessional State

Several features of this characteristically animated and self-involved response point towards the main themes of the present book. In the ﬁrst place Thomasius’s anti-clerical animus, about which the Halle students had complained, was symptomatic of his life-long campaign against the religious and political culture of the confessional state. For Thomasius, the key exemplar was his own fatherland, Electoral Saxony, where the Lutheran religion was enforced through civil power and laws, and was deeply embedded in civil society through the teaching power of church and university. A little earlier in the same disputation, Thomasius criticises the views of a defender of the Lutheran version of the confessional state. This writer had argued that the secular prince should oversee the salvation of his subjects, that he should be both bishop and prince, compelling church attendance, enforcing religious orthodoxy and bringing Calvinists back into the true faith. In response, Thomasius mentions some of the central tenets of his way of applying public law to the regulation of the church: To put it brieﬂy, in each state there is one majesty or highest governing power, through which supreme power a Christian magistrate mediates the laws of all conduct to his subjects … The church is in the state, and the state is not in the church. In the New Testament, Christ and the Apostles gave the church no capacity to rule. In one state there cannot be two sovereign authorities with the power to make law. The clergy and the other members of the churches are subjects of secular authority. Secular authority can thus regulate the activities of the priests, even those concerning religion, as long as such laws command nothing that is contrary to general divine law.3

In other words, as it belongs to the prince alone, supreme civil power may not be divided or shared with the church; and the church, which was not founded by Christ to wield such power, must be subject to its exercise by the state to which it belongs. Secondly, Thomasius’s remarks – made as a professor to students in an academic disputation and subsequently published – point to the degree to which the university provided the point of focus and refraction for both his public campaign and his intellectual persona. Unlike English political philosophers of the seventeenth century, their German counterparts were overwhelmingly university professors, but professors who also functioned as gelehrte Räte: academic advisers to the princely courts and privy councils, noble estates and city councils of the Holy Roman German Empire.4 As we 3 4

Ibid., p. 38. See Notker Hammerstein, ‘Universitäten – Territorialstaaten – Gelehrte Räte’, in R. Schnur (ed.), Die Rolle der Juristen bei der Entstehung des modernen Staates (Berlin: Duncker & Humblot, 1986),

Introduction

3

shall see in Chapter 1, this was because German universities had formed a key institution for state-building princes and reforming religious movements during the high period of confessionalisation – roughly from the mid-sixteenth to the mid-seventeenth century – supplying them with the clerics, theologians, jurists and teachers required for the administrative, judicial and disciplinary institutions of the confessional state.5 This is what permitted Thomasius to conduct his battle against the confessional state from within the university itself. The university was a kind of cockpit for controlling the intellectual culture of the princely territorial state, allowing Thomasius to wage his campaign to tear the levers of civil power from the churches and clergy who, as he thought, had so grievously misused them. Thomasius’s most celebrated and controversial reforming works – on the prince’s right with regard to heresy, witchcraft, torture and the regulation of religious worship – thus began life as Latin university disputations, several of them co-produced with his students, before being published under his signature in German for maximum dissemination and effect.6 The third feature to note in Thomasius’s response to his students is the self-dramatising manner in which it combines a broad post-Westphalian campaign against the confessional state with his personal biographical struggle against local clerical authorities and their academic allies. Reacting to his frontal attacks on Lutheran political theology and the University of Leipzig’s reigning Aristotelian scholasticism, a phalanx of opponents – including key members of the Leipzig theology professoriate – succeeded in having Thomasius banned from lecturing in 1689, forcing him to leave Saxony in March 1690 for exile in neighbouring Brandenburg, ruled by the Calvinist Hohenzollern dynasty.7 Thomasius came to regard this

5

6

7

pp. 687–735; and Wolfgang Weber, ‘Zwischen Fürstenabsolutismus und Räterherrschaft. Zur Rolle der gelehrten Beamten im politischen Denken des Christian Thomasius’, in F. Vollhardt (ed.), Christian Thomasius (1655–1728): Neue Forschungen im Kontext der Frühaufklärung (Tübingen: Max Niemeyer, 1997), pp. 79–98. Anton Schindling, ‘Schulen und Universitäten im 16. und 17. Jahrhundert. Zehn Thesen zu Bildungsexpansion, Laienbildung und Konfessionalisierung nach Reformation’, in W. Brandmüller, H. Immenkötter and E. Iserloh (eds.), Ecclesia Militans. Studia zur Konzilien- und Reformationsgeschichte Remigius Bäumer zum 70. Geburtstag gewidmet (Paderborn: Ferdinand Schöningh, 1988), pp. 561–70. Details related to the authorship and publication of Thomasius’s works are to be found in the Lieberwirth’s invaluable annotated bibliography: Rolf Lieberwirth, Christian Thomasius. Sein wissenschaftliches Lebenswerk (Weimar: Böhlaus, 1955). Rolf Lieberwirth, ‘Christian Thomasius’ Leipziger Streitigkeiten’, Wissenschaftliche Zeitschrift der Martin-Luther-Universität Halle-Wittenberg (Gesellschafts- und sprachwissenschaftliche Reihe) 3 (1953), 155–9; Frank Grunert, ‘Zur aufgeklärten Kritik am theokratischen Absolutismus. Der Streit zwischen Hector Gottfried Masius und Christian Thomasius über Ursprung und Begründung der summa potestas’, in Vollhardt (ed.), Christian Thomasius, pp. 51–78.

4

The Secularisation of the Confessional State

event as a sign that his personal destiny was bound to that of the wider struggle against the confessional state, allowing him to infuse his politicaljurisprudential writing with a level of personal testimony and intensity that seems modern in comparison with other academic writing of the time. In fact, we shall see that Thomasius’s work in natural and public law was inseparable from his self-conscious cultivation of a particular persona, that of the anti-scholastic public intellectual intent on reforming philosophical knowledge by invoking its sensory limits and civil purposes. Finally, the occasional, engaged and disputatious character of Thomasius’s remarks are a pointer to the intellectual and historical register in which his thinking took place. Thomasius was not an academic philosopher in the modern post-Kantian sense, seeking grounds for thought and judgement that reach all the way to their supposed transcendental or universal conditions. In fact he refused to accept such conditions, arguing instead that thought is dominated by the will, which is in turn driven by the passions and embedded in interests.8 Thomasius’s own thought unfolds in the medium of combat not contemplation. It is informed by his self-conscious rejection of the ‘monkish’ contemplative life whose claims to spiritual superiority he regarded as a self-serving clerical aggrandisement. Rather than participating in a ‘conversation with mankind’, he was engaged in vehement disputation with the clerical, philosophical and juridical defenders of the early modern confessional state.9 Far from being ideal – that is, composed of discussants who learn to put their interests aside and argue from shared norms of reason – Thomasius’s ‘speech situation’ thus was decidedly tendentious, as both his own and his opponents’ arguments were forged in a clash of political and religious interests in which the norms of reasoning were themselves centrally at issue. Modern academics usually assume that religion and politics represent domains in which it will be possible, at least in principle, to reach agreement based on shared norms or principles arrived at through more fundamental philosophical reasoning. Even if there is disagreement as to the nature of this reasoning – some philosophers opting for principles of 8

9

See Christian Thomasius, Fundamenta juris naturae et gentium ex sensu communi deducta (Halle, 1705). German translation, Grundlehren des Natur- und Völcker-Rechts, nach dem sinnlichen Begriff aller Menschen vorgestellet (Halle, 1709; repr. Hildesheim: Olms, 2003), pp. 23–42. The centrality of unreconciled interest-driven conﬂict to intellectual history is gaining increasing scholarly attention. See, for example, Markus Friedrich, Die Grenzen der Vernunft: Theologie, Philosophie und gelehrte Konﬂikte am Beispiel des Helmstedter Hofmannstreits und seiner Wirkungen auf das Luthertum um 1600 (Göttingen: Vandenhoeck & Ruprecht, 2004); and Martin Gierl, Pietismus und Aufklärung: Theologische Polemik und die Kommunikationsreform der Wissenschaft am Ende des 17. Jahrhunderts (Göttingen: Vandenhoeck & Ruprecht, 1997).

Introduction

5

justice based on Kantian universalisation procedures, others for principles of natural law grounded in Aristotelian conceptions of human good and human nature, and so on – it is widely assumed, perhaps overly optimistically, that this disagreement too is capable of being formulated and resolved in a shared philosophical discourse. Thomasius’s circumstances did not permit him to think like this. When he looked at the forms of philosophical reasoning – Aristotelian derivations of natural law principles from man’s ‘rational and sociable nature’ being a case in point – he saw ways of constructing norms and principles that were deeply and partisanly implicated in the religious and political conﬂicts whose restraint he sought. We shall see that Thomasius was a participant in religious and political conﬂicts whose shattering force had reached all the way down to the principles of reason and splintered the concept of philosophy itself. It is this crucial fact about his historical context that makes it so difﬁcult for modern academic readers to negotiate the topography of his writings and thought. Before discussing these writings, then, we need to gain some sense of what it was about Thomasius’s life and times that placed him in this intellectual situation. Thomasius’s path to his role as one of Protestant Germany’s preeminent opponents of political confessionalism began on 1 January 1655.10 He was born into a family of Lutheran jurists and academics in Leipzig, where his father Jacob (1622–84) was a professor of philosophy who would gain a reputation as a pioneering historian of philosophy.11 Christian enrolled at his father’s university in 1669 and graduated with a master’s degree in 1672. That year also saw the publication of Samuel Pufendorf ’s monumental and controversial De jure naturae et gentium (The Law of Nature and Nations), in Sweden, where Pufendorf was professor of

10

11

There is as yet no full-scale scholarly biography of Thomasius. For a helpful English overview of his life and work, see Knud Haakonssen, ‘Christian Thomasius’, in E. Craig (ed.), The Routledge Encyclopaedia of Philosophy (London: Routledge, 1997), pp. 376b–80b; and, for a discussion of his key doctrines, Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), pp. 197–273. The pathbreaking German study is Werner Schneiders, Naturrecht und Liebesethik. Zur Geschichte der praktischen Philosophie im Hinblick auf Christian Thomasius (Hildesheim: Olms Verlag, 1971). A more recent overview in German is Helmut Holzhey and Simone Zurbuchen, ‘Christian Thomasius’, in H. Holzhey and W. Schmidt-Biggemann (eds.), Grundriss der Geschichte der Philosophie. Die Philosophie des 17. Jahrhunderts, Band 4: Das heilige Römische Reich deutscher Nation, Nord- und Ostmitteleuropa (Basel: Schwabe, 2001), pp. 1165–202. Useful biographical information can be found in Max Fleischmann (ed.), Christian Thomasius: Leben und Lebenswerk (Halle: Niemeyer, 1931; repr. Aalen, 1979). See Giovanni Santinello, ‘Jakob Thomasius (1622–1684)’, in F. Bottin et al. (eds.), Models of the History of Philosophy: From its Origins in the Renaissance to the ‘Historia Philosophica’ (Dordrecht: Kluwer, 1993), pp. 409–42.

6

The Secularisation of the Confessional State

natural and international law and adviser to the royal court.12 Written in the protracted aftermath of the Thirty Years War, Pufendorf ’s radical reconstruction of the natural law tradition was dedicated to providing a secular foundation for ethics and politics, in the objective of an enforceable social peace, rather than in the realisation of man’s (supposedly) intrinsic rationality or sociability.13 Thomasius must have read the De jure soon after its publication, as he records that he was still at the University of Leipzig when he encountered the work. He found himself swept along by the radical and lucid character of Pufendorf ’s arguments yet fearful of embracing them, owing to the accusations of irreligion and dangerous innovation surrounding their author.14 It was not until he moved to the University of Frankfurt on Oder in 1674, in order to undertake a doctorate in law, that Thomasius was able to return to the arguments that had so unsettled him, and that now began to transform his intellectual and political outlook. Looking back from the Foreword to his own natural law work, the Institutiones jurisprudentiae divinae (Institutes of Divine Jurisprudence) of 1688, he would claim this as the decisive turning point in his intellectual biography, with his usual selfdramatising ﬂair: ‘I began even at that time to chase away some of the dark clouds that until then had obscured my understanding.’15 In the light that was dawning, Thomasius records, he became ashamed of the fact that he had previously taken the theologians at their word, accepting that they conﬁned themselves to properly theological matters and that all who opposed them, like Pufendorf, were heretics or dangerous innovators. In fact, he continues, it was through Pufendorf – who taught him how to separate philosophy from theology – and through his own studies in politics and public law, that he discovered that in making such claims the theologians were straying into ethics and jurisprudence, where they have no business. He thereby acquired an insight that he would never relinquish, namely, that as ‘private persons’ theologians had no legal right to declare someone a heretic. Such a right belonged in principle only to the secular prince, who should be wary of using it in practice, since innovators 12

13

14

15

For a modern English translation, see Samuel Pufendorf, The Law of Nature and of Nations in Eight Books, trans. C. H. Oldfather and W. A. Oldfather (Oxford: Clarendon Press, 1934). For overviews, see Michael J. Seidler, ‘Samuel Pufendorf ’, in A. C. Kors (ed.), Encyclopedia of the Enlightenment (New York: Oxford University Press, 2002), pp. 378–81; Horst Dreitzel, ‘Samuel Pufendorf ’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 757–812; and Hunter, Rival Enlightenments, pp. 148–96. Christian Thomasius, Institutiones jurisprudentiae divinae (Leipzig, 1688). German translation, Drey Bücher der Göttlichen Rechtsgelahrtheit (Halle, 1709; repr. Hildesheim, 2001), Foreword. Thomasius, Göttlichen Rechtsgelahrtheit, p. 5.

Introduction

7

are not heretics and the name heretic itself had been gravely misused.16 No doubt with the wisdom of autobiographical hindsight, Thomasius could thus claim that even in his Frankfurt student years the intellectual stage had been set for the battles to come, in which his personal destiny would be joined to the campaign to destroy the early modern confessional state. In relocating to Frankfurt for his doctoral studies, however, the 19-yearold was not just making the intellectual move from theology and philosophy to law and politics. He was moving to a state of the Holy Roman German Empire, electoral Brandenburg, whose political and religious composition differed signiﬁcantly from that of his home state of Saxony. Saxony’s ruling dynasty, the Wettins, shared the Lutheran religion of their ‘estates’. These were the towns and cities, and circles of nobles and knights (Ritterschaften) whose legal constitution as orders of the Holy Roman German Empire gave them rights independent of their territorial prince – for example, the right to imperial jurisdiction – and set the scene for protracted struggles over their integration within the territorial state.17 In Brandenburg, the Hohenzollern dynasty had converted to Calvinism at the beginning of the seventeenth century – seeking to unite religious reform and territorial state-building as part of the North German ‘second Reformation’18 – while the estates of Brandenburg and Prussia remained staunchly Lutheran, treating their religion as an imperial right. As we shall see in more detail in Chapter 1, this set the scene for a struggle, lasting throughout the seventeenth century, in which the Brandenburg electoral princes attempted to reform the principality’s religious constitution, in fact to ‘soften’ the Lutheran religion of the estates so that it could be aligned with the moderate Calvinism of the ruling house. This was a central part of their campaign to integrate the estates within a princely territorial state, and it gave rise to a whole series of smaller and larger battles – over schooling, the appointment of clergy and, crucially, the prince’s right to restrain religious conﬂicts and ‘reform’ ritual 16 17

18

Ibid., pp. 5–6. The existence of the quasi-autonomous estates was living historical testimony to the variety of agencies – crusading knightly orders, entrepreneurial feudal nobilities, trading cities and missionising religious orders headquartered in large abbeys and powerful bishoprics – involved in the medieval western colonisation of non-Christian north-eastern Europe, under the nominal auspices of the Holy Roman emperor and the pope. For an overview of the estates of Brandenburg and Prussia and their struggles with the Brandenburg electoral princes, see F. L. Carsten, The Origins of Prussia (Oxford: Clarendon Press, 1954), pp. 165–78, 179–228. See Heinz Schilling, ‘The Second Reformation: Problems and Issues’, in his Religion, Political Culture and the Emergence of Early Modern Society: Essays in German and Dutch History (Leiden: E. J. Brill, 1992), pp. 247–301.

8

The Secularisation of the Confessional State

and liturgy – whose religious and political dimensions were inextricably linked.19 Owing in part to popular resistance, but more importantly to the success of the noble estates in using the imperial courts and imperial alliances against the territorialising electoral princes, the Brandenburg ‘second Reformation’ had stalled by the middle of the seventeenth century, even if the ‘Great Elector’ had succeeded in installing a network of Calvinist nobles in the upper echelons of the court and bureaucracy, and was in the process of creating a standing army.20 Friedrich Wilhelm had succeeded in ‘reforming’ the university of Frankfurt on Oder, however.21 The Brandenburg elector – so called as one of the seven German princes with the right to elect the Holy Roman emperor – had turned Frankfurt into a bi-confessional (Calvinist and Lutheran) institution. Further, his policies had facilitated the appointment of law professors such as Johann Brunnemann and Samuel Stryk – critics of the Lutheran theocratic jurisprudence taught at Saxony’s Wittenberg and Leipzig universities – and secularising political philosophers like Johann Christoph Becmann. Becmann drew on both Hobbes and Pufendorf to develop a conception of sovereignty in which the prince exercised supreme power in defence of social peace, thereby subordinating the church to political imperatives and authority.22 Frankfurt thus provided the young Thomasius with a cultural and political milieu allowing him to assimilate Pufendorf ’s natural law and develop political and juridical doctrines oriented to the deconfessionalised governance of a multi-confessional state. It thereby cemented his opposition to the religious and political culture of his home university of Leipzig. Armed with a doctorate of laws and a head full of disputatious ideas, Thomasius returned to Leipzig in 1679 where, after a short period working as an advocate in the town, he began offering fee-for-service lectures at the

19

20

21

22

For more, see Bodo Nischan, Prince, People, and Confession: The Second Reformation in Brandenburg (Philadelphia: University of Pennsylvania Press, 1994). See Paul Schwartz, ‘Die Verhandlungen der Stände 1665 und 1668 über die Religionsedikte’, Jarhrbuch für brandenburgische Kirchengeschichte 30 (1935), 88–115; and Peter-Michael Hahn, ‘Calvinismus und Staatsbildung: Brandenburg-Preußen im 17. Jahrundert’, in M. Schaab (ed.), Territorialstaat und Calvinismus (Stuttgart: Kohlhammer, 1993), pp. 239–69. See the discussion of this in Gerhard Oestreich, ‘Die Bedeutung des niederländischen Späthumanismus für Brandenburg-Preußen’, in H. Thieme (ed.), Humanismus und Naturrecht in Berlin-Brandenburg-Preussen (Berlin: Walter de Gruyter, 1979), pp. 16–28. Oestreich focuses on the university’s new openness to currents of Arminian Calvinism and political neo-Stoicism (Lipsius) ﬂowing from the Netherlands. Horst Dreitzel, ‘The Reception of Hobbes in the Political Philosophy of the Early German Enlightenment’, History of European Ideas 29 (2003), 255–89.

Introduction

9

university. During the 1680s, in an array of provocative lectures, disputations and tracts, he sought to unsettle Leipzig’s reigning Protestant Aristotelian scholasticism. Not only did he champion Pufendorf ’s secularising natural law and attack the ‘Christian natural law’ of the Leipzig theological professoriate – Valentin Alberti and Johann Benedict Carpzov in particular – but he also intervened in a series of political and religious controversies on the side of the Brandenburg elector and against the interests of Saxony and its Lutheran church and estates.23 By 1689 Thomasius’s enemies were ready to act, and Alberti, Carpzov and their colleague Augustin Pfeiffer – aided by Carpzov’s brother Samuel who was pastor to the Saxon court – lodged complaints against him at court and in the Lutheran Superior Consistory in Dresden. The result was that Thomasius was banned from lecturing by ducal edict; he would later say on pain of arrest and conﬁscation of his property. This triggered his ﬂight across the border into neighbouring Brandenburg in 1690, where he was quickly invited to play a leading role in the founding of the University of Halle. When, in 1690, Thomasius moved to Brandenburg for the second time – now as an exile who would make his home and career there – he stepped into the unﬁnished battle of religious and political wills between the Calvinist ruling house and its Lutheran estates and clergy. This stand-off provides the immediate context for Thomasius’s anti-clerical campaigning and for much of his political-jurisprudential writing, explaining, for example, why so much of it is concerned with clarifying and defending the prince’s rights in relation to religious affairs.24 We may conjecture that his standing as a controversial dissident Lutheran, with an irenic attitude towards Calvinism and political leanings towards princely territorial sovereignty, made him attractive to the Brandenburg court and facilitated his move to Halle. This took place with the assistance of his mentor Pufendorf who, reaching the end of a distinguished career as a political philosopher and adviser to Protestant princes, had himself taken up a post as privy and judicial councillor to the Brandenburg court in 1688. Thomasius’s reputation in this regard also helps explain his leading role in founding the University of Halle between 1690 and 1694. Halle was designed to weaken the grip of Lutheran orthodoxy through the pre-eminence of its secularist law faculty and the stafﬁng of its theology faculty with anti-orthodox Lutheran Pietists, under the leadership of

23 24

See Lieberwirth, ‘Christian Thomasius’ Leipziger Streitigkeiten’; and Grunert, ‘Aufgeklärten Kritik’. See Hinrich Rüping, ‘Thomasius und seine Schüler im brandenburgischen Staat’, in Thieme (ed.), Humanismus und Naturrecht, pp. 76–89.

10

The Secularisation of the Confessional State

A. H. Francke.25 If Thomasius and Stryk (who had now joined his former student) provided the court with a style of political jurisprudence sympathetic to the establishment of princely territorial supremacy, then the Pietists’ cultivation of a non-doctrinal inward and practical religiosity promised to soften the anti-Calvinist intransigence of Lutheran orthodoxy, even if it gave rise to an intransigent piety.26 Several of Thomasius’s writings from this period make sense in this setting. Two controversial disputations from 1690 are quite closely aligned with the Religionspolitik of his new patrons and sovereign. In De felicitate subditorum Brandenburgicorum (On the Happiness of the Subjects of Brandenburg) Thomasius praises the efforts of the electors in establishing a bi-confessional state, attacks the ‘fanatical’ Lutheran clergy for their opposition to this, and defends the religious edicts of the ‘Great Elector’ Friedrich Wilhelm (1640–1688).27 These edicts had been central instruments in the long campaign to restrain the anti-Calvinist polemics of Brandenburg’s Lutheran clergy and to transform their religion into a form permitting a modus vivendi with the Calvinism of the ruling house. A leading Lutheran cleric in Halle, Archdeacon Albrecht Christian Roth of the Ulrichskirche, reacted to Thomasius’s treatise, attacking its author as a ‘syncretist’ and ‘indifferentist’, whose anti-doctrinal defence of religious inwardness aligned him with the ‘enthusiast’ Pietists.28 Ever ready for combat, Thomasius responded with a second disputation whose baroque title asked ‘Whether Lutherans can with good conscience be prevented by their teachers from having any intercourse with Calvinists (Reformed) or attending their sermons?’. In this he defended the right of Lutherans to hear Calvinist sermons on the grounds that doctrinal differences are irrelevant to true holiness – which consists in acknowledging one’s 25

26

27

28

Notker Hammerstein, ‘Jurisprudenz und Historie in Halle’, in N. Hinske (ed.), Zentren der Aufklärung I. Halle: Aufklärung und Pietismus (Heidelberg: Verlag Lambert Schneider, 1989), pp. 239–53; and Udo Sträter, ‘Aufklärung und Pietismus – das Beispiel Halle’, in N. Hammerstein (ed.), Universitäten und Aufklärung (Göttingen: Wallstein Verlag, 1995), pp. 49–62, although note Sträter’s argument that the exclusion of orthodox Lutherans from the theology faculty was the result of struggles during the founding phase, rather than being a design feature. Martin Brecht, ‘August Hermann Francke und der Hallische Pietmus’, in his Geschichte des Pietismus. Bd. 1: Der Pietismus vom siebzehnten bis zum frühen achtzehnten Jahrhundert (Göttingen: Vandenhoeck & Ruprecht, 1993), pp. 439–539. Christian Thomasius, De felicitate subditorum Brandenburgicorum ob emendatum per Edicta Electoralia statum ecclesiasticum et politicum (Halle, 1690). German translation, Doppelte Glückseligkeit Brandenburgischer Untertanen, in Auserlesene deutsche Schriften, Erster Teil (Halle, 1705; repr. Hildesheim: Georg Olms, 1994), pp. 1–75. On this, see Klaus Deppermann, Der hallesche Pietismus und der preussische Staat unter Friedrich III. (I.) (Göttingen: Vandenhoeck & Ruprecht, 1961), pp. 72–3.

Introduction

11

weakness and attempting to live a good life – and that to deny this right infringes the sovereign’s authority in religious affairs.29 Even before leaving Leipzig, however, in 1689 Thomasius had published a controversial essay defending the marriage between Princess Maria Amalia, Calvinist daughter of Friedrich Wilhelm of Brandenburg, and the Lutheran duke, Moritz Wilhelm of Saxon-Zeitz, a brother of the Saxon Elector.30 He was responding to a tract by the Lutheran provost of the urban duchy of Magdeburg, Philipp Müller, who had declared the duke’s marriage to be tantamount to union with an inﬁdel.31 Müller’s condemnation – written during the period in which Brandenburg was pursuing the administrative assimilation of this quasi-independent Lutheran urban duchy – is typical of the manner in which the Lutheran clergy, supported by local nobles and city authorities, sought to attack all moves that might lessen the differences between the two confessions.32 Thomasius’s rebuttal seeks to minimise the theological gap between Lutheranism and Calvinism and appeals to the public law provisions of the Treaty of Osnabrück (Westphalia). In awarding Calvinists the same civil rights and privileges as Lutherans, these provisions, he argues, serve to reinforce the ‘Christian freedom’ of royal persons of the two religions to marry. The political immediacy of such disputes is indicated in an unattributed ofﬁcial document that Thomasius placed between his text and Müller’s in the second volume of his Auserlesene deutsche Schriften (Selected German Writings) of 1714. This document, headed ‘Berlin 25th January’ (presumably 1690) declares that Müller’s polemic, although ‘well and truly refuted by a Leipzig jurisconsult, Mr. Christian Thomasius’, had infringed the provisions of the Treaty of Westphalia pertaining to the maintenance of religious peace, and breached Müller’s duties as a subject of Elector Friedrich III. As a result he had been brought to Berlin and conﬁned to the Spandau prison.33 29

30

31

32

33

Christian Thomasius, Erklährung und Vertheydigung Seiner Lehre, über die Frage: Ob denen Lutheranern von ihren Lehrern mit guten Gewissen könne untersaget werden mit denen Reformirten keine Gemeinschafft zu halten noch ihre Predigten zu besuchen? (Halle, 1690). Republished by Thomasius in his Kleine Teutsche Schriften (Halle, 1701; repr. Hildesheim: Georg Olms, 1994), pp. 341–51. Christian Thomasius, Rechtmäßige Erörterung der Ehe- und Gewissens-Frage, Ob zwey Fürstliche Personen im Römischen Reich, deren eine der Lutherischen di andere der Reformirten Religion zugethan ist, einander mit guten Gewissen heyrathen können? (Halle, 1689). Republished by Thomasius in his Auserlesene deutsche Schriften, Zweiter Teil (Frankfurt and Leipzig, 1714; repr. Hildesheim: Olms, 1994), vol. ii, pp. 1–102. Thomasius republished Müller’s polemic, ‘Der Fang des edlen Lebens durch frembde Glaubens-Ehe’, alongside his own in the Auserlesene deutsche Schriften, vol. ii, pp. 105–92. On the interaction between the controversy over Pietism and the Brandenburg take-over of Magdeburg, see Deppermann, Der hallesche Pietismus, pp. 69–87. See Auserlesene deutsche Schriften, vol. ii, p. 104.

12

The Secularisation of the Confessional State

It is not just the political immediacy of such disputes that concerns us, however, but the depth at which they penetrated the philosophical and theological substructure of Protestant academic culture. In 1688, the year before his engagement with Müller, Thomasius had published two of his key texts, the Institutiones jurisprudentiae divinae and the Introductio ad philosophiam aulicam (Introduction to Court Philosophy), the former representing Thomasius’s adaptation of Pufendorf ’s natural law to his present circumstances, and the latter Thomasius’s ﬁrst essay into the historiography and reform of philosophy, both of which will be discussed in subsequent chapters. For the moment, the thing to observe is how tightly these scholarly works – the Institutiones in particular – were tied to Thomasius’s polemical disputations, not just by Thomasius himself but by his opponents. In the Institutiones Thomasius drew on a sceptical voluntarism to deny fallen man’s capacity for rational or philosophical insight into the divine mind and its transcendent concepts of good and evil.34 As a result, men could only accede to such concepts by empirical deduction of the rules contributing to human sociability (natural law), or through the biblical commandments that supervened when this ‘natural’ deduction reached its limits (divine positive law).35 As both kinds of law could be acceded to by ordinary laymen without special theological or philosophical training, the clergy could claim no privileged place in relation to either, which freed the prince and his lay jurists to determine these laws in the interests of social peace, setting aside the goals of holiness and virtue.36 The fact that Thomasius was challenging not just the civil power of the Lutheran church but also its philosophical and theological underpinnings was immediately apparent to such key opponents as Roth and Alberti. As Thomas Ahnert has shown, in responding to Thomasius, Alberti sought to defend a distinctive philosophical and theological conception of human reason, one whose proximity to divine reason would allow the Lutheran clergy to retain the privileged role of mediating ‘Christian natural law’ to the profane civil domain.37 Human reason may have been damaged at the Fall but it remained the imago Dei (image of God) in man, and, through the adoration of God and the mediation of the church, this tarnished image could be refurbished such that man could once again participate in the divine understanding of good and evil through his 34 37

Thomasius, Göttlichen Rechtsgelahrtheit, pp. 51–7. 35 Ibid., p. 67. 36 Ibid., pp. 81–3. Thomas Ahnert, Religion and the Origins of the German Enlightenment: Faith and the Reform of Learning in the Thought of Christian Thomasius (Rochester: University of Rochester Press, 2006), pp. 84–93.

Introduction

13

own reason.38 Roth developed the same set of arguments, using them to link Thomasius’s anti-rationalism directly to his ‘indifferentism’ and his ‘politicist’ denial of the church’s mission to determine society’s ethical demeanour through the compulsory teaching of Lutheranism’s central creeds and doctrines.39 It is the depth of this disagreement – the fact that Thomasius and his opponents disagreed not just about the relation between theology and philosophy but also over what should count as ‘theology’ and ‘philosophy’ – that points to the way in which religious and political conﬂict had fractured the canons of philosophy and left it incapable of playing the role of transcendental adjudicator. In Thomasius’s historical context, then, theology, politics and jurisprudence were not dependent domains whose problems might be clariﬁed and divisions reconciled through a more fundamentally rational domain of philosophy. Rather, they were independent intellectual domains whose external authority and internal divisions were such as to have carried the main forms of philosophical reasoning along with them, dividing these accordingly. This means that rather than seeking philosophical solutions to religious, political and juridical problems, Thomasius sought to resolve them in their own domains, or in their historical overlappings and interrelations. Among the issues that he sought to address was the manner in which these problems had been exacerbated by ‘sectarian philosophy’. Thomasius used this label to signify philosophies that inspire exclusive and unqualiﬁed commitment through their claim to know the essences or substances, and he applied it to Aristotelian scholasticism and Christian Platonism, but also to Cartesianism and Spinozism.40 This helps to clarify the manner which Thomasius’s extensive philosophical writings are not those of a philosopher in the modern sense, even if we wish to call them philosophical in some other sense. Thomasius intervened in academic philosophy – in the teaching of natural law, ethics, natural philosophy and logic – not principally to arrive at philosophical truth, but to modify the forms in which scholars would accede to such truth. This applied especially to scholars of law, whose sectarian philosophical formation he regarded as a lynchpin of juridical and political confessionalism. In the process, as we shall see in Chapter 2, Thomasius sought to transform what should count as ‘philosophy’ – restricting it to an empirical, fallibilistic 38

39 40

Valentin Alberti, Compendium Juris Naturae, orthodoxae theologiae conformatum (Leipzig, 1676), see esp. pp. 22–4, 99, 212–14. Albrecht Christian Roth, Thomasius Portentosus (Leipzig, 1700), part 1, pp. 39–51; part 2, pp. 59ff. Christian Thomasius, Einleitung zur Hof-Philosophie (Frankfurt and Leipzig, 1710), pp. 6–55.

14

The Secularisation of the Confessional State

and eclectic style – and to elevate the academic standing of a similarly styled historiography, as a discipline better suited to equipping law students with a proper sense of their religious, political and, indeed, philosophical circumstances. Thomasius sought the academic and civic demotion of all philosophy purporting to arrive at transcendent truths through a universal method, problematising it via a matrix of theological, anthropological, juridical, historiographic and political doctrines that might also be called a ‘philosophy’, a word whose shifting historical senses reﬂected that its contents were up for grabs. This key fact about Thomasius’s programme poses signiﬁcant problems for a post-war scholarship that has sought to approach him as a moral philosopher and to locate his work within an overarching philosophical history.41 Despite its often remarkable virtuosity and erudition, this scholarship typically treats Thomasius’s jurisprudential and political arguments as if they were (or should have been) grounded in norms and concepts that are philosophically fundamental in one (or both) of two closely related senses. Such norms and concepts are supposed to be fundamental either through their determination by a philosophy that captures the universal structure of human reason, or through their emergence from a philosophical history whose role is to express the unfolding of human reason in time, eventually giving rise to such a philosophy. Not only does this approach ignore the degree to which Thomasius viewed academic philosophy from the ‘outside’, historicising it as a problematic civil activity, but, in judging him against the canons of fundamental philosophy, it distorts the character of his political, juridical and philosophical writing. This writing was driven not by universal philosophical reason – whose title he regarded as forfeit owing to radical conﬂicts among its aspirants – but by Thomasius’s partisan interest in dismantling the juridical and political architecture of the confessional state. This was an interest anchored in political reality by the conﬂict between Brandenburg’s Lutheran estates and their Calvinist prince, and shaped by the intellectual currents from which Thomasius fashioned his persona.42 41

42

For an extraordinarily rich and wide-ranging critical discussion of the impact of this approach on an array of works in the history of political thought, see the three essays by Horst Dreitzel: ‘Das deutsche Staatsdenken in der Frühen Neuzeit (II)’, Neue politische Literatur 16 (1971), 256–71; ‘Vom Verfall und Wiederaufstieg der Praktischen Philosophie’, Neue politische Literatur 18 (1973), 31–60; and ‘Ideen, Ideologien, Wissenschaften: Zum politischen Denken in Deutschland in der Frühen Neuzeit’, Neue politische Literatur 25 (1980), 1–25. For an exceptional characterisation of Thomasius in these terms, see Horst Dreitzel, ‘Christliche Aufklärung durch fürstlichen Absolutismus. Thomasius und die Destruktion des frühneuzeitlichen Konfessionsstaates’, in Vollhardt (ed.), Christian Thomasius, pp. 17–50.

Introduction

15

Despite the remarkable achievement of returning him to serious scholarly attention, Werner Schneiders’s treatment of Thomasius does not escape these problems. For Schneiders, Thomasius is a moral philosopher whose works are to be located within a particular kind of philosophical history. This history is driven by a series of fundamental dialectical tensions, between law and morality in the ﬁrst instance but, more broadly, between practice and theory, and ﬁnds its goal in a particular way of resolving them. For Schneiders, this resolution occurs through the Platonic conception of ‘intellectual love’ whose erotic dimension makes reason affective and effective, thereby reconciling the gap between theory and practice and mediating the conﬂict between law and morality, allowing moral theory to enter the domain of legal practice.43 Not only does this turn Thomasius’s natural law writings into the touchstone of this thought – as these are indeed concerned with the relations between law and morality – but it makes it look as if Thomasius were himself concerned with this Platonic reconciliation of theory and practice or, to the extent that he was not, that he failed the historical task of providing law with the required moral-philosophical foundations.44 As I have argued elsewhere, however, there is no historical reason to think that Thomasius was in the slightest degree committed to this kind of Platonic philosophical dialectic, or that there was anything in his cultural and political circumstances dictating that he should have been.45 In fact, Thomasius’s engagement with this style of Platonic philosophy was restricted to the discussions of it in his history of sectarian philosophies and to his clashes with Christian Platonist opponents. This applied to his conﬂict with Alberti and Roth in particular, both of whom indeed invoked a Platonic conception of reason as the imago Dei in order to subordinate the positive law of the prince to the Christian natural law mediated by Lutheran theologians.46 Far from accepting it as the rational foundation of his intellectual and political activity, Thomasius regarded this kind of fundamental philosophy as a sectarian weapon in the hands of his clerical enemies. By separating the sovereign’s coercive law from moral philosophies and theologies dedicated to man’s ethical renovation, Thomasius was not failing to reconcile the dialectic of philosophical history, he was pursuing a political secularisation of the juridical apparatus by attacking a 43 45 46

Schneiders, Naturrecht und Liebesethik, pp. 9–47. 44 Ibid., pp. 226–39, 239–89. Hunter, Rival Enlightenments, pp. 202–9. See Hans-Peter Schneider, ‘Christliches Naturrecht’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 813–35.

16

The Secularisation of the Confessional State

key rationale for its confessional utilisation. Thomasius’s interventions in natural law were not the foundation of this pursuit but effects of it, designed to reconstruct the discipline through which theologians had traditionally subordinated the prince’s positive law to the divine law that they claimed to mediate. Schneiders’s inﬂuential account set the scene for other studies of Thomasius in which he appears as a natural jurist caught up in a philosophical history whose tensions he failed to reconcile, leaving him prey to the positivistic and authoritarian conceptions of law and politics that would supposedly haunt German history.47 This distorted view of him has only been exacerbated by period studies in which Thomasius is located in the Aufklärung or Frühaufklärung (early enlightenment). In these histories Thomasius is typically assigned to one side of an exemplary philosophical opposition – that of a personal, pragmatic but non-scientiﬁc philosophy – while the other side is allotted to Christian Wolff, who is supposed to represent a scientiﬁc but socially disengaged metaphysical rationalism. This exemplary opposition of course serves only to motivate the philosophical and historical triumph of Kantian philosophy, which is portrayed as reconciling the opposed tendencies by offering a scientiﬁc philosophy of the transcendental subjective conditions of experience.48 Here we are so far removed from the historical Thomasius that it is difﬁcult to recognise him or his driving concerns. Thomasius was indeed preoccupied with the personal and pragmatic dimension of philosophy. This was not, though, through any pursuit of philosophical subjectivism, but because he was concerned by the kind of person one becomes through the practice of certain styles of philosophy.49 As Thomasius’s prime exemplar of sectarian philosophy, university metaphysics gives rise to a

47

48

49

See, in particular, the discussion of Thomasius in Jutta Brückner, Staatswissenschaften, Kameralismus und Naturrecht: Ein Beitrag zur Geschichte der politischen Wissenschaft im Deutschland des späten 17. und frühen 18. Jahrhunderts (Munich: C. H. Beck, 1977). On Brückner’s account, whose modelling of dialectical philosophical history is drawn from Habermas rather than Plato, see Hunter, Rival Enlightenments, pp. 66–9. See, for example, Werner Schneiders, Hoffnung auf Vernunft. Aufklärungsphilosophie in Deutschland (Hamburg: Felix Meiner, 1990), ch. 3; and Wilhelm Schmidt-Biggemann, Theodizee und Tatsachen: das philosophische Proﬁl der deutschen Aufklärung (Frankfurt am Main: Suhrkamp, 1988), pp. 7–57 in particular. Lewis White Beck’s Early German Philosophy: Kant and His Predecessors (Cambridge, Mass.: Harvard University Press, 1969) offers an independent American version of the same kind of dialectical philosophical history, ﬁrst invented by Kant himself as a means of allowing his own philosophy to be received as reason’s attainment of historical reﬂexivity. On the historical signiﬁcance of the cultivation of philosophical personae, see the studies in Conal Condren, Stephen Gaukroger and Ian Hunter (eds.), The Philosopher in Early Modern Europe: The Nature of a Contested Identity (Cambridge: Cambridge University Press, 2006).

Introduction

17

sectarian philosophical persona. It convinces its adherents that through metaphysical insight into the transcendent substances or forms they gain pure knowledge not just of the human sciences but theology too, mediating its mysteries to the laity in the manner of a secular clerisy just as arrogant and intolerant as the religious one.50 Wolff ticked all the boxes. Far from manifesting the philosophical-historical dialectic between subjectivism and rationalism, Wolff ’s appointment to the Halle philosophical faculty in 1706 simply opened another front in Thomasius’s long campaign against the academic discipline of metaphysics.51 In claiming to ground the entire encyclopaedia of human and divine sciences in the universally true transcendent concepts of his own philosophy, Wolff ’s secularised Protestant scholasticism differed little from Alberti’s and Roth’s in Thomasius’s eyes. As such it had to be resisted, even if the ﬁght was now largely carried on by Thomasius’s students and was soon overshadowed by the Pietists’ attack on Wolff. It is not surprising that the approach to Thomasius as a natural law moral philosopher should have led to treatment of his political and jurisprudential writings – in particular his disputations on heresy, witchcraft, torture and religious toleration – as if they were proto-liberal defences of individual natural rights and freedoms. Several studies have located this defence in Thomasius’s account of the centrality of the passions in man’s moral nature. This, it is argued, puts the individual’s inner thoughts and desires beyond the reach of external coercion, thus giving rise to subjective rights and freedoms that limit the exercise of princely power and positive law.52 Others have argued that while Thomasius’s natural law account of ethical inwardness supports freedoms that limit princely power, it does so only as a complement to a purely political construction of such limits: the

50

51

52

For a summary of Thomasius’s late views in this regard, see his Cautelen zur Erlernung der Rechtsgelehrtheit (Halle, 1713; repr. Hildesheim: Olms, 2006), in particular ch. 12, ‘Cautions Regarding the Study of Metaphysics’, pp. 260–97. This is argued in more detail in Ian Hunter, ‘Multiple Enlightenments: Rival Aufklärer at the University of Halle 1690–1730’, in M. Fitzpatrick et al. (eds.), The Enlightenment World (Cambridge: Cambridge University Press, 2004), ch. 8. See also, Hans-Martin Gerlach, ‘Streit in der Aufklärung oder: Halle – ein Ort der deutschen Frühaufklärung und drei philosophische Konzeptionen im Kampf (Thomasius, Wolff, Lange)’, in K. Bal, V. Caysa and P. Stekeler-Weithofer (eds.), Philosophie und Regionalität (Wroclaw: Wroclaw University Press, 1999), pp. 79–93. See, in particular, Simone Zurbuchen, ‘Gewissensfreiheit und Toleranz: Zur Pufendorf-Rezeption bei Christian Thomasius’, in F. Palladini and G. Hartung (eds.), Samuel Pufendorf und die europäische Frühaufklärung. Werk und Einﬂuß eines deutschen Bürgers der Gelehrtenrepublik nach 300 Jahren (1694–1994) (Berlin: Akademie Verlag, 1996), pp. 169–80; and Klaus Luig, ‘Von Samuel Pufendorf zu Christian Thomasius’, in Palladini and Hartung (eds.), Samuel Pufendorf und die europäische Frühaufklärung, pp. 137–46.

18

The Secularisation of the Confessional State

self-restriction of princely power to the maintenance of external social peace.53 Thomasius’s inner freedoms thus do not give rise to defensible political rights against the absolute state, and Thomasius himself remains stranded at the threshold of a political Aufklärung that he presages without entering. It is by no means clear, though, that Thomasius was on the track of a quasi-Lockean natural law defence of subjective rights and freedoms that might set limits to princely power, or fail to, owing to Thomasius’s residual absolutism. In Chapter 3, I argue that Thomasius’s natural law work should not be seen as an attempt to provide philosophical foundations for his political and juridical thought. It should be viewed, rather, as an attempt to develop a moral anthropology or political psychology suited to law students as future ofﬁcials of a secularised state. Thomasius’s public law construction of proto-liberal freedoms and rights – it will be argued in Chapters 4 and 5 – should thus not be seen as representing a natural law defence against the power of the princely territorial state. On the contrary, it should be seen as part of his campaign to defend a speciﬁc right and power of this state itself: namely, to govern without having to enforce religious norms and laws, which he regarded as the chief threat to individual security and freedom. If by absolutism we mean the prince’s capacity to exercise supreme power in all matters pertaining to the maintenance of social peace, notwithstanding the claims of other agencies to judge on this or on higher goals, then Thomasius’s absolutism was not residual but plenary. The task confronting us is thus to clarify the manner in which he derived proto-liberal freedoms and rights from the absolutist exercise of princely power itself. Several problems attending the treatment of him as an enlightenment philosopher have been diagnosed and avoided in studies that approach Thomasius as an early modern political jurist: Staatsrechtler or Staatskirchenrechtler. These studies return us to Thomasius’s core agenda by arguing that he was concerned not with resolving philosophical problems but with redrawing the boundaries of church and state. Here Thomasius is seen to rely not on foundational philosophy but on imperial public law, as this had been formulated in the treaties of Augsburg (1555) and Westphalia (1648), and explicated in the work of such key Staatsrechtler as Herman 53

Frank Grunert, Normbegründung und politische Legitimität. Zur Rechts- und Staatsphilosophie der deutschen Frühauﬂkärung (Tübingen: Max Niemeyer, 2000), pp. 169–288, at pp. 273–8. Cf. also the similarly nuanced discussion in T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000), at pp. 129–35; and Klaus-Gert Lutterbeck, Staat und Gesellschaft bei Christian Thomasius und Christian Wolff: Eine historische Untersuchung in systematischer Absicht (Stuttgart: Frommann-Holzboog, 2002), at pp. 89–143.

Introduction

19

Conring.54 Moreover, Notker Hammerstein in particular has focused on the centrality of historiography to Thomasius’s juristic programme at Halle, arguing that through it he sought to historicise natural law – as an ethical discipline taught in the empire’s universities – thereby demoting it in relation to positive jus publicum, which holds the key to the juridical and political regulation of religion.55 While offering important correctives to the philosophical approach, this juristic one nonetheless has something in common with it. Both approaches assume that Thomasius’s programme is fundamentally secular, in the sense of arising from a mode of thought that is independent of religious faith and doctrine and hence able to subordinate the latter to an autonomous and all-encompassing form of reasoning, even if they disagree over whether this is based in philosophy or jurisprudence and history. As Thomas Ahnert has argued, however, this assumption is untenable, in part because Thomasius adopted anti-rationalist religious positions in his disputes with the Lutheran scholastics – in the Leipzig disputes, Alberti was the rationalist, not Thomasius – and in part because these positions also informed his views on philosophy, history and politics.56 This does not mean, though, that as a result of their shared focus on the need to transform man’s will, religion and philosophy ‘were both subordinate parts of a more general notion of “wisdom” which did not admit the division of human existence into two mutually independent spheres of existence’.57 In the ﬁrst place, the interaction between the religious disposition that Thomasius cultivated and the academic sciences that he expounded was both less transparent and more ambivalent than Ahnert’s account suggests. On the one hand, Thomasius’s religiously based insistence on fallen man’s incapacity to know the transcendent essences could lead to a ﬁdeistic embrace of an inward faith against all of the metaphysical explications provided by the scholastics and all of the doctrinal elaborations of the church. On the other hand, this same teaching also facilitated the opening of a de-transcendentalised space of empirical or ‘historical’ 54

55

56

57

See the valuable study by Wolfgang Wiebking, ‘Recht, Reich und Kirche in der Lehre des Christian Thomasius’ (Ph.D., Eberhard-Karl University of Tübingen, 1973). Hammerstein, ‘Jurisprudenz und Historie in Halle’, in Hinske (ed.), Zentren der Aufklärung, pp. 239–53; and, more generally, Notker Hammerstein, Jus und Historie: Ein Beitrag zur Geschichte des historischen Denkens an deutschen Universitäten im späten 17. und im 18. Jahrhundert (Göttingen: Vandenhoeck & Ruprecht, 1972). Thomas Ahnert, ‘Enthusiasm and Enlightenment: Faith and Philosophy in the Thought of Christian Thomasius’, Modern Intellectual History 2 (2005), 153–77. More expansively, Ahnert, Religion and the Origins of the German Enlightenment. Ahnert, ‘Enthusiasm and Enlightenment’, 173.

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knowledge.58 Here, in the absence of transcendent insight and concepts, it was possible to derive natural law norms from ‘empirical’ observation of man’s need for sociability in a manner that would undermine Christian natural law. It also became possible to develop historiographic disciplines that isolated history from all theological and Biblical determinations, in fact turning the table on them by treating theologies as events in the history of human power struggles, and the Bible as a book whose account of divine history was deeply informed by the historical cultures and languages in which it had been written.59 Paradoxical as it sounds, this ‘detranscendentalising’ separation of religion and ‘philosophy’ – here meaning knowledge acquired through such ‘natural’ means as historiography – was based in part on Thomasius’s religious conception of the limits of human knowledge, which functioned similarly to philosophical scepticism.60 Secondly, for all its ambivalence, Thomasius’s movement between the poles of a ‘pietistic empiricism’ was profoundly overdetermined by his driving interest in dismantling the religious, juridical and political infrastructure of the Lutheran confessional state. It was this interest that governed his otherwise vertiginous path between a radical pietistic attack on doctrinal religion and philosophical theology, and a no less radical historicising defence of the prince’s right to exercise political power in the name of worldly peace alone. This gave rise to a secularisation of the political-juridical domain – a programme for the removal of all religious laws and agencies – that was not based in an omnicompetent secular philosophy or jurisprudence.61 This book sets out to trace that exhilarating yet unfamiliar intellectual path. Given the paucity of English translations of his work, it is ﬁtting that the book should end with an appendix containing an English version of one of Thomasius’s celebrated and notorious heresy disputations, allowing the Anglophone reader to experience his vivid, aggressive and far-reaching arguments at ﬁrst hand. 58

59

60

61

On this under-researched topic, see Arno Seifert, Cognitio Historica. Die Geschichte als Namengeberin der frühneuzeitlichen Empirie (Berlin: Duncker & Humblot, 1976), pp. 150–62. See the rich discussion of this nest of issues in Ralph Häfner, ‘Jacob Thomasius und die Geschichte der Häresien’, in Vollhardt (ed.), Christian Thomasius, pp. 141–64; and Häfner, ‘Das Erknenntnisproblem in der Philologie um 1700. Zum Verhältnis von Polymathie und Aporetik bei Jacob Friedrich Reimman, Christian Thomasius und Johann Albert Fabricius’, in R. Häfner (ed.), Philologie und Erkenntnis: Beiträge zu Begriff und Problem frühneuzeitlicher Philologie (Tübingen: 2001), pp. 95–128. For a rare and illuminating discussion of this key issue, see Martin Mulsow, Moderne aus dem Untergrund: Radikale Frühaufklärung in Deutschland 1680–1720 (Hamburg: Felix Meiner, 2002), pp. 309–54. On this form of secularisation, see the fundamental study by Martin Heckel, ‘Säkularisierung: Staatskirchenrechtliche Aspekte einer umstrittenen Kategorie’, in K. Schlaich (ed.), Martin Heckel Gesammelte Schriften: Staat, Kirche, Recht, Geschichte (Tübingen: J. C. B. Mohr, 1989), pp. 773–911.

chapter 1

Religion, politics and the university

We have argued that Thomasius’s thought and writings did not unfold on the basis of a fundamental philosophy but as programmatic interventions into a particular set of religious, political and cultural circumstances. Drawing on intellectual sources that appear heteroclite and ambivalent to modern eyes, his thought found strategic coherence in the way that he shaped these sources to meet the circumstances that confronted him. Before discussing his writings in more detail, then, and as a means of orienting our approach to them, we need to clarify these circumstances. What was it about the religious, political and cultural situation in late seventeenth-century Saxony and Brandenburg that made it possible for a law professor to make such spectacular interventions into the problem of the political governance of religion? Pointers to an answer can be found in a composite work that Thomasius published in 1717, as he approached the end of his career and life. This work consisted of the full text of Melchior von Osse’s political testament, composed for the Elector August of Saxony and ﬁrst published in 1555, to which Thomasius added an extensive commentary for the use of his law students at Halle. Written in his capacity as chancellor of Saxony, Osse’s work is deeply indebted to the moral advice genre of the Fürstenspiegel, or ‘mirror for princes’.1 Its founding premise is that before he can govern others, the prince must ﬁrst govern himself, acquiring the virtues of justice, piety, fortitude, mercy, charity and liberality that equip him to exercise godly paternal government of his subjects.2 At the same time, this work is also an 1

2

See Michael Phillip, ‘Regierungskunst im Zeitalter der konfessionellen Spaltung: Politische Lehren des mansfeldischen Kanzlers Georg Lauterbeck’, in H.-O. Mühleisen and T. Stammen (eds.), Politische Tugendlehre und Regierungskunst (Tübingen: Max Niemeyer Verlag, 1990), pp. 71–115. Christian Thomasius/Melchior von Osse, D. Melchiors von Osse Testament gegen Hertzog Augusto Churfürsten zu Sachsen (1556). Anitzo zum ersten mahl völlig gedruckt. Auch hin und wieder durch nützliche Anmerckungen erläutert. Nebst einer Vorrede und Anhang. Zum Gebrauch des Thomasischen Auditorii (Halle, 1717), pp. 38–41,

21

22

The Secularisation of the Confessional State

early example of cameralist or Policey literature, as the prince’s duties include management of the royal household and its treasury, establishing schools and universities to ensure educated ofﬁcials and a disciplined population, and managing the mining and accumulation of precious metals to ensure his country’s wealth. The overarching genre of Osse’s work is therefore that of the patriarchalist literature of the ‘Christian commonwealth’ and more speciﬁcally that of Lutheran Christian Policey, in which the prince pursues the goals of a confessionalised state administration in a patronal-episcopal persona assisted by university-trained ofﬁcials and clergy.3 It belonged to the onset of the Wettin dynasty’s programme to transform Saxony into a centrally ruled absolute confessional state. In outlining his duties to God, Osse reminds the just prince that he must wield the sword in order to curb the raw wildness of sinful men, and that he must also support the exercise of ‘ecclesial coercion’ – bans and excommunication – by the clergy, in order to maintain order and discipline within the church.4 Above all, though, the prince must ensure that ‘in doctrine, the theologians, pastors and preachers are of one opinion and one meaning, and that all division, separation, aversion and bitterness is kept at bay’.5 In this regard, it is well to remember that ‘where division takes root among the theologians and preachers of an empire or land, then soon after that factions, discord and much evil arises among the inhabitants, because nothing is more opposed to true unity than division in religion and Christian doctrine, as all history shows and, unfortunately, the wretched spectacle of today’s downcast [Holy] Roman Empire presents to our eyes’. In order to obtain the peace, calm, unity and salvation of his subjects, the prince must thus have clergy and theologians who adhere to ‘one God, one Lord, one faith, one baptism, one Holy Scripture, one Holy Ghost’.6 Thomasius’s commentary on these passages is designed to point up the differences between Osse’s early Reformation position and Germany’s postWestphalian circumstances, but also between Saxony as a Lutheran confessional state and the mixed confessional order of Brandenburg-Prussia. In a long note on the issue of religious unity, Thomasius tells his students that Osse fails to distinguish between the desirable harmony of human wills and the impossible unity of human intellects. The bloody and irreconcilable differences between Catholics and Protestants over the Lord’s Supper show 3

4

Horst Dreitzel, ‘Das christliche Gemeinwesen’, in H. Holzhey and W. Schmidt-Biggemann (eds.), Grundriss der Geschichte der Philosophie. Die Philosophie des 17. Jahrhunderts, Band 4: Das heilige Römische Reich deutscher Nation, Nord- und Ostmitteleuropa (Basel: Schwabe, 2001), pp. 673–93. Osse, Testament, pp. 51–2. 5 Ibid., pp. 53–4. 6 Ibid., p. 56.

Religion, politics and the university

23

that philosophical agreement on theological doctrine is impossible, and that here harmony is best served by not seeking unity at all. Thomasius agrees with Osse that pastors should preach pure biblical teachings, but then: ‘What should the authorities do with those that teach erroneously?’ They can well advise and exhort them to the true path but, if this fails, then ‘it is well to remember that just as a large part of prudence consists in putting up with foolishness, so it is to be considered an even more necessary part of prudence when one tolerates those who err’. Should the error be dangerous, then the ‘magistrate’ (prince) is justiﬁed in exiling its propagators, but only if this can be done without diminishing their honour or property, and without harm to the state itself. In answering the crucial question of who is to decide whether an error is dangerous, Thomasius is unequivocal: ‘The magistrate and his councillors’. The clergy may offer advice, but only on the clear understanding that the right of decision rests wholly and solely with the secular magistrate. It soon becomes clear, though, that for Thomasius the real problem lies not with the erring heretics, and that it is the clergy who hereticate others who are not to be tolerated: ‘What happens though when the teachers hereticate and persecute each other, also slander and revile? This the magistrate should not tolerate, advising them that according to holy scripture one should avoid a heretic but not persecute him. And if they do not want to accept this advice, then he should punish them as disobedient and as rebels.’ Even here, though, Thomasius stresses the need for political prudence. If punishment only serves to drive the rebels into neighbouring lands, where they can make common cause against the prince with other heretic-mongers – and where they will be acclaimed as religious martyrs by the ‘ignorant people’ – then the prince is best advised to act in a more calculating fashion, keeping them in the state, and using ﬁnes and lesser punishments to restrain them.7 In the note following, Thomasius draws the general lesson of these comments.8 Why, he asks his law students, does Osse, a jurist, leave the questions of religious unity and religious toleration to the clerics and theologians? Should jurists have nothing to say about the prince’s rights and duties in relation to religious matters? Who else in the university could have this competence? The philosophers will ﬁnd nothing about it in Aristotle, and the physicians do not pretend to such knowledge. For their part, the theologians should concern themselves with eternal salvation, ‘graciously’ leaving this matter to the jurists as the better part of public law.

7

Thomasius, Testament, note 23, pp. 54–5.

8

Ibid., note 24, pp. 56–7.

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The Secularisation of the Confessional State

Osse’s failure to grasp this reﬂects the time in which he lived: ‘Under papalism, authority in religious matters ( jus circa sacra) was left to the clergy alone, and the secular authorities saw themselves not as the head in this regard but only as the clergy’s secular arm.’ In 1555 Osse stood only in the dawn of the Reformation, ‘to say nothing of the fact that at that time nothing was yet known of the profession of public law, just as in today’s Catholic universities nothing is known of it still’. In addressing this situation it is not the prince’s personal virtue that matters but his capacity to command the resources of the new public law, which will tell him that his prime concern should be not with the salvation of his subjects but with their security and worldly welfare. It was the absence of public law in the universities that had allowed some preachers to contest the prince’s right to control religious affairs and to deny his right to settle theological controversies. This is all the more ironic, Thomasius observes, because 1555 saw the signing of the Treaty of Augsburg which, together with the subsequent Treaty of Westphalia (1648), constitutes the central planks of imperial public law, especially regarding the recognition of multiple religions and the secular prince’s powers of religious supervision. His posthumous ‘exchange’ with Osse points us towards the two crucial factors conditioning Thomasius’s intellectual campaign against political confessionalism. First, it shows the intense interdependency between the religious and political orders of the states of the early modern German Empire. Osse’s advice that in order to achieve a well-ordered godly state, the virtuous prince should impose theological unity on his clergy and religious unity on his subjects, indicates the reciprocity between confession and politics in the emerging confessional state. In counter-advising that the prince should not seek such unity and should himself take over the governance of religion for the purposes of security rather than salvation, Thomasius’s remarks point towards the religious and political circumstances obtaining in post-Westphalian multi-confessional Brandenburg. Secondly, the Osse commentary displays the key role played by the university in mediating this nexus of confession and politics. Osse lays great weight on the academic training of jurists and ofﬁcials in Romano-canon law, as the key to providing the Christian commonwealth with servants whose expertise is matched by their piety and virtue. For Thomasius, this enthusiasm for ‘papalist’ law is symptomatic of Osse’s backward early-Reformation situation, which can only be rectiﬁed by the teaching of the new secular imperial public law: a rival discipline that would be championed by Hermann Conring and taught intensively in the Halle law faculty. If academic theology and Romano-canon law had played a central role in establishing the architecture of the early

Religion, politics and the university

25

modern confessional state, then Thomasius hoped that the great imperial public law treaties, and the territorial church law they made possible, would play a central role in dismantling that architecture. In either case, the university was at the centre of religious and political action because this action was shaped by academic disciplines. We recall that the Osse commentary is dedicated zum Gebrauch des Thomasischen Auditorii – ‘to the use of Thomasius’s students’. In what follows, we shall discuss the tight nexus between religion and politics that deﬁned Thomasius’s circumstances, and then the role of the university in mediating this nexus and deﬁning Thomasius’s sphere of intellectual activity, before returning to the Osse commentary in order to chart the contours of his intellectual campaign.

religion and politics in seventeenth-century brandenburg When he took ﬂight across the border from Saxony into Brandenburg in March 1690, the political and religious circumstances in which Thomasius found himself had been several centuries in the making, but they had a proximate and symbolic onset on Christmas day 1613. That was the day on which the Hohenzollern elector of Brandenburg, Johann Sigismund (1608–19), proclaimed his conversion to Calvinism in the most public way possible, by organising and partaking in a Reformed version of the Lord’s Supper at the formerly Lutheran Berlin cathedral. In this rite there was no priestly consecration of the host, and an ordinary loaf of bread was broken on a plain table covered with a simple white cloth, to the accompaniment of spare Calvinist hymns. Everything signiﬁed that this was no magical invocation of the real presence of Christ, but a spiritual memorial to the departed Lord.9 If this ceremony was full of religious signiﬁcance, however, then its political symbolism was no less profound, as it was a means of cementing alliances and signalling dynastic intentions. Among Johann Sigismund’s fellow communicants were representatives from the principality of JülichCleves, which the elector was angling to inherit with the support of the 9

For more on the difference between the liturgies and theologies of the Calvinist and Lutheran Eucharist, see Alexandre Ganoczy, ‘Schöpfung und Sakrament in der Kraft des Gottesgeistes. Calvin’s pneumatologisches Sakramentsverständnis’, in W. Brandmüller, H. Immenkötter and E. Iserloh (eds.), Ecclesia Militans. Studia zur Konzilien- und Reformationsgeschichte Remigius Bäumer zum 70. Geburtstag gewidmet (Paderborn: Ferdinand Schöningh, 1988), pp. 193–208.

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The Secularisation of the Confessional State

Calvinist Dutch; Stephen Lesieur, James I of England’s roving ambassador to the Empire; Count Moritz of Hesse-Kassel, himself a recent convert to Calvinism; representatives of the Palatine elector, Friedrich V, the Calvinist leader of the Protestant Union to which Johann Sigismund had signed up in 1611; and the leading members of the Brandenburg privy council, already largely Calvinist.10 Conspicuous by their absence were any members of the local Lutheran clergy or any representatives of Brandenburg’s powerful estates – the imperially constituted circles of cities and nobles – who regarded Lutheranism as the state’s ofﬁcial religion and an imperial legal right, awarded by the terms of the Treaty of Augsburg (1555). Small wonder, then, that Brandenburg’s Lutheran clergy and estates saw this event for what it was – a momentous declaration of intent to radically reform Brandenburg’s religious and political constitution – and immediately launched a bitter and protracted campaign to block the Calvinisation of the territory. In order to grasp its intensity and complexity, the interaction between religion and politics in Brandenburg must be situated in the relation between its quasi-autonomous estates and its state-building ruling house, as this relation had been shaped and reshaped by the waves of religious reformation that swept over the Holy Roman German Empire during the sixteenth and seventeenth centuries. The Lutheran reformation introduced into Brandenburg in the middle of the sixteenth century by Johann Sigismund’s great-grandfather, Joachim II (1535–71), had been of a very conservative kind. Luther’s theology of justiﬁcation by faith had been made mandatory, and communion was taken ‘in both kinds’, bread and wine, as opposed to the Catholic rite of bread alone for the laity. Many of the old Catholic rites remained, however, including the elevation and ‘ostension’ of the Eucharistic host – signifying Christ’s real presence – the exorcism of Satan as part of the baptismal ritual, and most of the old church decorations, pictures and music.11 In moving to reform these features of a religion that supported the cultural identity and political power of Brandenburg’s estates – to ‘completely sweep away the leftover papal dung from Christ’s stable’12 – Johann Sigismund 10

11 12

Bodo Nischan, Prince, People, and Confession: The Second Reformation in Brandenburg (Philadelphia: University of Pennsylvania Press, 1994), pp. 91–4. Ibid., pp. 18–22, 46–9, 63–73. The phrase is from a confession drawn up by Abraham Scultetus, the Calvinist theologian and pastor to the Palatine court whom Johann Sigismund had seconded to Brandenburg in 1614 to assist with the reform programme. See, Scultetus, Auff sonderbahren Befehl und Anordnung … Johannis Sigismundis … Glaubensbekenntnus der reformirten Evangelischen Kirchen in Deutschland, in H. Heppe (ed.), Die Bekenntnisschriften der reformierten Kirchen Deutschlands (Eberfeld: Friedrichs, 1860), pp. 262–83, ‘Vorrede’.

Religion, politics and the university

27

signalled a distinct shift in the Hohenzollern campaign for the consolidation of a princely territorial state. By adopting Calvinism as the court religion and by restructuring the Brandenburg privy council – the prince’s political cabinet – such that it was dominated by Calvinist nobles and advisers, the elector sought to remove the Lutheran estates from the channels of political advice and decision.13 Without questioning the sincerity of his conversion – he seemed to have resented his Lutheran upbringing and self-consciously rejected Lutheran theological doctrine – Johann Sigismund’s objective was to centralise decision-making in the hands of an elite sympathetic to the dynastic ambitions of the Hohenzollerns and hostile to the rights and privileges of the Lutheran estates and clergy.14 Similarly,by aligning Brandenburg with the Reformed states of northern Europe, Johann Sigismund was attempting to build a coalition of support for Brandenburg’s key territorial aims – the inheritance of the principality of Jülich-Cleves and the acquisition of the dukedom of Prussia – without relying on the support of the Catholic Empire, which had long been unsympathetic to these objectives. Considering the depths at which these measures threatened their religious identity and political interests, it is not surprising that Brandenburg’s Lutheran estates and clergy should have reacted to them with alarm and ﬁerce resistance. Events gathered pace soon after Johann Sigismund’s celebration of his reformed Calvinist Eucharist on Christmas day 1613. On 24 February 1614, responding to the polemics that had begun to pour from the Lutheran pulpits, the elector issued an edict ‘to ensure that everywhere proper modesty and moderation would be exercised by our clergy in the pulpit and elsewhere, to protect the church from strife, confusion of conscience, and disadvantage’. The edict explained that religious strife among Protestants only gives comfort ‘to our common enemies, the Jesuits and papists’, and it endorsed the teaching of a common Protestant faith.15 This should be based on the Augsburg Confession and its four associated creeds: the Apostolic, Athanasian, Nicene and Chalcedonian. Johann Sigismund pointedly excluded the central formulation of militant Lutheran doctrine – the Formula of Concord that had been adopted in Brandenburg by the elector’s grandfather Johann Georg in 1580 – whose metaphysical Christology was directed against Calvinist doctrine. 13

14 15

See Peter-Michael Hahn, ‘Calvinismus und Staatsbildung: Brandenburg-Preußen im 17. Jahrundert’, in M. Schaab (ed.), Territorialstaat und Calvinismus (Stuttgart: Kohlhammer, 1993), pp. 239–69. Ibid., pp. 253–7. For the text of the edict, see Wolfgang Gericke, Glaubenszeugnisse und Konfessionspolitik der Brandenburgischen Herrscher bis zur Preussischen Union 1540 bis 1815 (Bielefeld: Luther Verlag, 1977), pp. 132–36.

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Shortly afterwards, Johann Sigismund took the extraordinary step of publishing his own statement of faith – the Confessio Sigismundi – in which he explicitly rejected the crucial central articles of the Formula of Concord pertaining to Christ’s mode of presence in the Eucharistic host.16 In an exercise that shows just how deeply confessional theology had penetrated the political realm, the elector took pains to deny the Concordial doctrine that through the mutual transformation of his divine and human natures – the communicatio idiomata – Christ was physically present at different celebrations of the Eucharist simultaneously. This was the so-called ‘ubiquity’ doctrine, which the elector described as ‘absurd’, just as he did not hesitate to characterise the Lutheran practice of baptismal exorcism as ‘superstitious’. At the same time, even though he was thus unbending in his defence of Calvinistic Eucharistic doctrine – according to which there is no communicatio idiomata and Christ is symbolically rather than physically present in the communion host – Johann Sigismund rejected the strict Calvinist teaching of individual predestination. He replaced it with the Lutheran doctrine of universal predestination – all are called to God – thereby hoping to bring the Lutherans on board. This hope proved vain as the edict forbidding polemics was widely ignored by leading Lutheran clergy and theologians, who continued to attack the elector’s reforms to the theology and liturgy of the Lord’s Supper with a torrent of anti-Calvinist sermons, pamphlets and books, now also directed against the edict itself.17 That this propaganda counter-offensive was not without effect on ordinary people is shown by the events of March 1615 when, following the Reformed ‘cleansing’ of the Berlin cathedral of its altars, pictures, cruciﬁxes and baptismal font, there was a full-scale riot in the city, with violence against the property and persons of the Calvinist court preachers.18 The durability of the struggle is shown by the issuing of similar edicts into the middle of the century – in 1615, 1662, 1664 and 1668 – the last two being particularly fraught in giving rise to meetings of the Landtag, or parliamentary assembly of the estates. In convening the Landtag in 1665, Elector Friedrich Wilhelm was concerned to rectify two different derelictions by the estates, whose presence on the same agenda speaks directly to his combined strategy for the achievement of a uniﬁed territorial state.19

16

17 19

‘Confessio Fidei Johannis Sigismundi, Electoris Brandenburgici 1614’, in Gericke, Glaubenszeugnisse, pp. 122–31. Nischan, Prince, People and Confession, pp. 161–84. 18 Ibid., pp. 185–92. My discussion of these events relies on Paul Schwartz, ‘Die Verhandlungen der Stände 1665 und 1668 über die Religionsedikte’, Jarhrbuch für brandenburgische Kirchengeschichte 30 (1935), 88–115.

Religion, politics and the university

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First, the elector sought to reprimand the cities of Berlin, Cölln and Spandau for failing to maintain the fortiﬁcations required for the common defence of the realm. Secondly, he was concerned that the estates had failed to enforce his religious edict of 1664. Here he had repeated the ban on clergy damning each other from the pulpit, decreed that baptismal exorcism should become optional in the territory’s churches, and required ministers to sign an undertaking to abide by the edict as a condition of entering their ofﬁce. The unwillingness of the cities to maintain princely forts signiﬁed their longstanding resistance to princely military power, although this was now all but futile, owing to Friedrich Wilhelm’s establishment of a tax-funded standing army during the 1650s.20 The estates’ resistance to the elector’s attempt to achieve a political harmonisation of Lutheranism and Calvinism remained undimmed, though, and during the Landtag of 1665 they attacked the 1664 edict for infringing the rights of conscience, threatening schism on the one hand and ‘syncretism’ on the other, jeopardising the estates’ rights of patronage in the appointment of clergy, and reneging on the elector’s earlier promise to maintain the religion of the Augsburg Confession in all its purity and with all its creeds.21 The sticking point in this last regard was the Lutheran clergy’s insistence on including the Formula of Concord among these creeds, something that was completely unacceptable to Friedrich Wilhelm and his Calvinist privy council, not least because the Formula provided the theological basis for characterising Calvinism as a heresy. This dispute ended in a compromise that sought to shelve the problem posed by the Formula of Concord by not naming it explicitly in the religious edict to which the clergy would have to subscribe, to the satisfaction of none of the parties. The instability of the compromise was revealed soon enough, with the calling of another meeting of the Landtag in 1668, the year before Thomasius enrolled for his undergraduate degree. This time the assembly was convened for the estates of Kürmark and Neumark, imperial subdivisions of Brandenburg. These estates were opposed to their Lutheran clergy having to subscribe to the edict because it did not distinguish between the two Protestant confessions, required clergy to abstain from mutual damnation, and made baptismal exorcism optional.22 This conﬂict had been inﬂamed by the sacking of three Lutheran clerics in Berlin for their violent damning and hereticating of Calvinists. The Neumark clergy 20 21

F. L. Carsten, The Origins of Prussia (Oxford: Clarendon Press, 1954), pp. 269–74. Schwartz, ‘Die Verhandlungen der Stände’, 91–2. 22 Ibid., 100–2.

30

The Secularisation of the Confessional State

feared that their parishes were being Calvinised. Its municipal government rightly feared the loss of its right of clerical patronage, as the common religious oath was designed to allow clerical appointments to be handled by a single central administrative body – the Berlin Superior Consistory – staffed by lay and clerical members sympathetic to Friedrich Wilhelm’s agenda. Once again a compromise was sought in which the estates would agree to restrain heretication from their pulpits while the elector would softpedal on his plan for a religious consensus, and the Formula of Concord would not be mentioned in the wording of the religious oath. As before, though, compromise was threatened by the Lutheran clergy, whose Berlin representatives demanded the explicit listing of the Formula of Concord among the credal statements. Further, while they agreed to cease using the word damnare, they nonetheless insisted that Calvinists were ‘damned objectively’, as they had deviated from the Grundlage des Glaubens or foundations of faith. The compromise was eventually forced through, and there is a sense in which Brandenburg-Prussia’s ‘liberal’ religious constitution can be regarded as the outcome of a series of such compromises.23 The Brandenburg electoral princes were undoubtedly attempting to impose a religious constitution in support of their own religious and political interests. The manner in which they did so however – through a series of measures designed to minimise confessional differences – and the compromises they were forced into, had the unintended effect of relegating confessional goals in favour of a political one: maintaining peace through the enforced toleration of two religions. It was this effect that Thomasius sought to turn into a matter of deliberate policy. We can see from these events how immediately Thomasius’s writings engaged with the situation in Brandenburg (and Saxony) and how thoroughly attuned they were to the volatile mix of religious and political factors that deﬁned this situation. In praising Brandenburg religious toleration and defending the Great Elector’s religious edicts – in his De felicitate subditorum Brandenburgicorum of 1690 – Thomasius displayed his willingness to intervene in a vehement ongoing religious and political dispute. He also showed the degree to which his conception of toleration derived from a certain defence of princely rights, as opposed to a natural law defence of religious freedom as an individual subjective right. Similarly, as we shall see in 23

See Gerd Heinrich, ‘Religionstoleranz in Brandenburg-Preußen. Idee und Wirklichkeit’, in M. Schlenke (ed.), Preussen, Versuch einer Bilanz. Band 2, Beiträge zu einer politischen Kultur (Reinbeck: Rowohlt, 1981), pp. 61–88.

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Chapter 5, in his disputations attacking the theology and jurisprudence of heresy – for its illicit mixing of spiritual and civil authority – Thomasius engaged directly with the unﬁnished religious and political history of Brandenburg and Saxony. Here we shall ﬁnd him explicitly attacking the notion of ‘foundations of faith’, denouncing the Formula of Concord as a manual for heretication, and insisting that the rites and sacraments of the church – not just baptismal exorcism, but baptism itself, together with conﬁrmation, communion, and the last rites – should one and all be treated as adiaphora: morally indifferent matters at the disposal of the prince. In their attempt to tie reform of Brandenburg’s religious constitution to a centralising reform of its political, military and ﬁnancial structures – to align the religious comportment of the people and estates with the governance of a uniﬁed polity – the policies of the Brandenburg electors conform to a series of European-wide developments that historians have labelled confessionalisation.24 Triggered by the sixteenth-century fracturing of the ‘universal Christian church’ into three rival confessions – Catholicism, Lutheranism and the Reformed or Calvinist faith – confessionalisation was a process in which the agendas of state-building princes and proselytising churches converged in the objective of taking religious discipline into the daily lives of whole populations.25 It was characterised by the (mutually hostile) tightening of theological doctrine by the rival churches and the rapid expansion of confessionally divided educational systems. By the end of the sixteenth century, it had led to the appearance of archipelagoes of mutually hostile territories and cities across central Europe, housing populations with increasingly distinct religious and cultural comportments.26 In the case of emerging territorial states such as Brandenburg and Saxony, confessionalisation meant that princes tied the disciplining and mobilisation of territorial populations to the imposition of a single religion, typically through the top-down reform of churches, schools and universities, as can be seen in Osse’s testament. The building of such confessional states was something to which Protestant princes regarded themselves as fully entitled by the jus reformandi (right of reformation) granted to them by the Religious Peace of Augsburg in 1555 and enshrined in 24

25

26

Heinz Schilling, ‘Confessional Europe’, in T. A. J. Brady, H. A. Oberman and J. D. Tracy (eds.), Handbook of European History 1400–1600: Latin Middle Ages, Renaissance and Reformation. Volume II: Visions, Programs and Outcomes (Leiden: E. J. Brill, 1995), pp. 641–82. For a succinct account, see Wolfgang Reinhard, ‘Zwang zur Konfessionalisierung? Prolegomena zu einer Theorie des konfessionellen Zeitalters’, Zeitschrift für Historische Forschung 10 (1983), 257–77. Heinz Schilling, ‘Die Konfessionalisierung im Reich: Religiöser und gesellschaftlicher Wandel in Deutschland zwischen 1555 und 1620’, Historische Zeitschrift 246 (1988), 1–45.

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imperial public law in the dictum: cuis regio eius religio (whose the region, theirs the religion).27 We thus ﬁnd Friedrich Wilhelm complaining that through their resistance to his reform measures at the 1665 Landtag, the Lutheran clergy were contesting his jura episcopalia et territorialia (episcopal and territorial rights).28 The contest between Brandenburg’s Calvinist princes and its Lutheran estates and clergy was a typical, if relatively benign instance of the conﬂicts arising from the serial waves of confessionalisation that washed over central Europe during the sixteenth and seventeenth centuries. Johann Sigismund’s Calvinising agenda was entirely characteristic of Reformed confessionalisation, or the so-called ‘second Reformation’. Headquartered in the Palatinate and tied to its political power and military fate, the second Reformation was a series of linked programmes of religious and political reform, carried out in a network of Calvinist principalities and cities across northern and central Europe.29 Energised by the Saint Bartholomew’s Day massacre of French Calvinists (1572), and gaining momentum during the 1580s, Calvinist confessionalisation was typically top-down and driven by alliances between reforming princes and activist intellectuals.30 It issued in programmes that combined administrative, ﬁscal and military reform with the religious disciplining of populations in accordance with Calvinist liturgical and life-style imperatives. The fact that so much of Friedrich Wilhelm’s battle with his Lutheran estates and clergy was focused on the theological and political status of the Formula of Concord is a pointer to the central role of this confessional statement in the later stages of Lutheran confessionalisation. In the early sixteenth century Lutheran reformers and princes had been centrally preoccupied by Catholic resistance to their self-proclaimed Reformation. Catholic resistance took organised form in the deﬁnitive tightening of Catholic theology at the Council of Trent (1545–63) and with the founding of the Society of Jesus in 1540, which would spearhead a ‘counter-Reformation’ 27

28 29

30

See in particular, Martin Heckel, ‘Religionsbann und landesherrliches Kirchenregiment’, in H.-C. Rublack (ed.), Die lutherische Konfessionalisierung in Deutschland (Gütersloh: Gerd Mohn, 1992), pp. 130–62. Schwartz, ‘Verhandlungen der Stände’, 93. Heinz Schilling, ‘The Second Reformation – Problems and Issues’, in his Religion, Political Culture and the Emergence of Early Modern Society: Essays in German and Dutch History (Leiden: E. J. Brill, 1992), pp. 247–301. See, for example, the account of the relation between Count Johann IV of Nassau-Dillingen and the leading Calvinist philosopher, Johann Alsted of the Herborn academy, in Howard Hotson, Johann Heinrich Alsted, 1588–1638: Between Renaissance, Reformation, and Universal Reform (Oxford: Clarendon Press, 2000).

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through its educational and missionary programmes, unleashing the wave of Catholic confessionalisation.31 During the ﬁnal third of the century, however, the Lutherans were just as concerned to attack the Calvinist representatives of the second Reformation, proclaiming the Formula of Concord in 1577 as the deﬁnitive statement of the true Protestant (Lutheran) faith against the breakaway Calvinists. The Formula’s elaborate defences of the Lutheran Eucharistic theology – the communicatio idiomata between Christ’s two natures and the mode of his ‘ubiquitous’ physical presence – drew heavily on the metaphysics of Christian Aristotelianism.32 At the same time, this abstruse metaphysical doctrine was directly tied to the popular liturgy of the Lutheran mass, through the sacramental acts in which Christ was rendered present in the host (elevation) and declared to be present to the congregation (the ostensio).33 As part of the larger soteriological drama in which the community forged its identity through shared participation in a rite of salvation – simultaneously expelling the heretical ‘children of Satan’ who adhered to a different rite – these acts and gestures became the ﬂashpoints where high-level reform agendas encountered deeply embedded forms of devotional identity. This helps to explain why apparently minor Calvinist reform measures – dropping the ostensio from the Eucharistic liturgy, removing exorcism from the rite of baptism – provoked immediate and often ferocious reactions from Brandenburg’s Lutheran congregations. It also helps to explain why one of the central reforming strategies employed by Johann Sigismund and his theological advisers was to declare such touchstone rituals to be adiaphora – ‘indifferent things’ from the viewpoint of salvation – which meant (in theory at least) that they could be dispensed with, and should not form the basis of community identity or division.34 The political mobilisation of sophisticated theological and philosophical doctrine within the rival confessionalising states begins to explain their insatiable appetite for educated theologians and clergy. Once we observe that the combined agendas of religious and political reform also required educated ofﬁcials, politici and jurists – to administer the confessionally 31

32

33

34

R. Po-Chia Hsia, The World of Catholic Renewal 1540–1770 (Cambridge: Cambridge University Press, 1998). Karl Hengst, Jesuiten an Universitäten und Jesuitenuniversitäten (Paderborn: Schöningh, 1981). See the path-breaking study by Walter Sparn, Wiederkehr der Metaphysik: Die ontologische Frage in der lutherischen Theologie des frühen 17. Jahrhunderts (Stuttgart: Calwer Verlag, 1976). Jörg Baur, ‘Lutherische Christologie’, in Rublack (ed.), Die lutherische Konfessionalisierung in Deutschland, pp. 83–124. For more, see Malcolm Lovibond, ‘Eucharistic Action in Early Reformed Churches’, Reformation and Renaissance Review 5 (2003), 230–44.

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divided states and estates and to represent their interests before the courts and parliaments of the Empire – then it is no surprise that in addition to philosophy and theology, jurisprudential expertise was in great demand. In his manual for the building of a Lutheran confessional state, Melchior Osse thus lays just as much weight on the training of jurists and administrators in Roman law as he does on the training of theologians in Lutheran doctrine; for if the latter are required to achieve religious unity and political stability, then the prince needs the former in order to staff the courts and ofﬁces of his godly paternal government. In any case, this will be impossible, Osse argues, without major reform of the universities of Wittenberg and Leipzig, with regard to the payment of professors, the organisation of lecturing, the funding of colleges and the pastoral disciplining of students.35 In agreeing with Osse that such reform is necessary, while repudiating the mix of Aristotelian philosophy, Lutheran theology and Roman-law jurisprudence that formed the academic culture of the Saxon academies, Thomasius was testifying to the central role of the university in both the building and dismantling of the confessional state.

the role of the universities Early modern German political, juristic, philosophical and religious thought was bound to the university in a manner and to a degree quite unlike the case in England. While such English thinkers as Bacon, Hobbes, Hyde and Locke applied their humanist learning in the service of noble houses or the royal court, Thomasius was a university professor. So too were his mentor Samuel Pufendorf, such early intellectual inﬂuences as his father Jacob, the political jurist Hermann Conring and his Frankfurt teachers Stryk, Brunnemann and Becmann, and many of his leading opponents: the Leipzig theologians Valentin Alberti, Johann Benedict Carpzov and Gustav Philipp Mörl, and their Rostock colleague Joachim Fecht. The comparative political and religious unity of the late seventeenth-century English confessional state meant that higher learning could be centred in the two old universities, even if fraying of this unity at the religious and geopolitical margins produced a scatter of Dissenting Academies, and ﬁve Calvinist universities in Scotland. In the Holy Roman German Empire, driven by the rival confessionalising imperatives of a patchwork of independent states, principalities and cities, 12 new universities were built during the seventeenth century alone, bringing 35

Osse, Testament, pp. 198–212ff.

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the total to 36, complemented by approximately 100 higher academic gymnasiums. German universities were typically fairly small – consisting of 300 to 500 students – and organised into the lower faculty of philosophy (arts) and the higher ones of law, theology and medicine, each faculty presided over by two or three professors.36 These universities were tightly integrated into the religious and political programmes of the states, cities and churches that built, maintained and staffed them. In addition to their teaching function, law faculties also operated as Spruchkollegien – bodies rendering legally binding judgement on referred cases – within state judicial systems, while theology faculties passed judgement on orthodoxy and heresy. Universities were also largely responsible for the censorship of books, with regard to the linked issues of their theological heterodoxy and political acceptability.37 Above all, as already mentioned, it was to the grammar schools and universities that reforming princes and churches turned when embarking on their confessionalising programmes, looking to them for the educated clergy, teachers, jurists and ofﬁcials required to staff their expanding ecclesial, educational and administrative systems.38 Competition to imbue populations with a particular religious and political comportment led to an educational arms race between Lutheran, Calvinist and Catholic polities, and resulted in confessionally distinct archipelagoes of universities emerging across the Empire.39 Johann Sigismund’s and Friedrich Wilhelm’s Calvinising reform of the Joachimsthal grammar school and the University of Frankfurt on Oder thus conforms to this pattern. So too does the establishment of the bi-confessional University of Halle by Friedrich III/I (1688–1713) in 1690–94, in order to supply Brandenburg with clergy and ofﬁcials not under the sway of the Lutheran orthodoxy that ruled at the

36

37

38

39

Notker Hammerstein, ‘Die Universitäten: Geschichte und Struktur’, in Holzhey and SchmidtBiggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 295–301, at 295. For more on censorship in Brandenburg, see the account of the Privy Council’s investigation in 1693–94 of the Socinian-Spinozist Friedrich Wilhelm Stosch, in Detlef Döring, Frühaufklärung und obrigkeitliche Zensur in Brandenburg: Friedrich Wilhelm Stosch und das Verfahren gegen sein Buch “Concordia rationis et ﬁdei” (Berlin: Duncker & Humblot, 1995). Samuel Pufendorf, Thomasius’s mentor, played a key role on the commission that decided to conﬁscate Stosch’s Concordia rationis et ﬁdei and prohibit its further publication. Anton Schindling, ‘Schulen und Universitäten im 16. und 17. Jahrhundert. Zehn Thesen zu Bildungsexpansion, Laienbildung und Konfessionalisierung nach Reformation’, in W. Brandmüller, H. Immenkötter and E. Iserloh (eds.), Ecclesia Militans, pp. 561–70. For maps of the confessional distribution of universities across Europe, see Willem Frijhoff, ‘Patterns’, in H. de Ridder-Symoens (ed.), A History of the University in Europe: Volume II, Universities in Early Modern Europe (1500–1800) (Cambridge: Cambridge University Press, 1996), pp. 43–112, at 98–9.

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The Secularisation of the Confessional State

nearby Saxon universities of Leipzig and Wittenberg.40 The philosophical, theological and jurisprudential conﬂicts between Halle and Leipzig – in which Thomasius played a leading role – were typical of those that broke out between religiously divided university systems. Like that of his opponents, much of Thomasius’s best work was executed in the cross-ﬁre of university disputations, sobering testimony to the fact that intellectual advances can be driven as much by the hatred of rivals as by the love of learning. In broad terms, the curricula and pedagogy of early modern German universities can be envisaged as assuming a variety of forms depending on local interactions between two driving forces: the culture of late humanism with its recovery and reworking of ancient learning; and the programmes of religious and political reform through which this learning was placed at the disposal of states, cities and churches. As far as the humanist recovery of ancient texts is concerned, this was anything but an antiquarian exercise, as the classics were re-edited and taught in the universities to meet a wide variety of pressing needs. This reworking of the classics supplied the early moderns with political psychologies (neo-Stoicism and neo-Epicureanism), natural philosophy (the Aristotelian physics corpus), jurisprudence (the humanist reception of Roman law), political science (neo-Stoic and neoAristotelian), metaphysics and natural theology (Aristotelian, neo-Platonic and Hermetic), and general scientiﬁc ‘method’ (Paduan neo-Aristotelianism, Lullism and Ramism), not to mention an array of disciplines ranging from the artes liberales through geometry and optics to military tactics and fortiﬁcations.41 There is a limited sense in which Aristotelian texts and commentaries provided a common intellectual background for late humanism, particularly

40

41

Notker Hammerstein, ‘Die Universitätsgründungen im Zeichen der Aufklärung’, in P. Baumgart and N. Hammerstein (eds.), Beiträge zu Problemen deutscher Universitätsgründungen der frühen Neuzeit (Nendeln: KTO Press, 1978), pp. 263–98, at 264–8. For overviews, see Gerhard Oestreich, ‘Die antike Literatur als Vorbild der praktischen Wissenschaften im 16. und 17. Jahrhundert’, in R. R. Bolgar (ed.), Classical Inﬂuences on European Culture A.D. 500–1500 (Cambridge: Cambridge University Press, 1971), pp. 315–24; Stephen Menn, ‘The Intellectual Setting’, in D. Garber and M. Ayers (eds.), The Cambridge History of Seventeenth-Century Philosophy (Cambridge: Cambridge University Press, 1998), pp. 33–86; Notker Hammerstein and Gerrt Walther (eds.), Späthumanismus. Studien über das Ende einer Kulturhistorischen Epoche (Göttingen: 2000); and Wilhelm Schmidt-Biggemann, ‘New Structures of Knowledge’, in Ridder-Symoens (ed.), A History of the University in Europe, vol. ii, pp. 489–530. For examples of humanism in particular educational contexts, see Gerhard Oestreich, ‘Die Bedeutung des niederländischen Späthumanismus für BrandenburgPreußen’, in H. Thieme (ed.), Humanismus und Naturrecht in Berlin-Brandenburg-Preussen (Berlin: Walter de Gruyter, 1979), pp. 16–28; and Anton Schindling, Humanistische Hochschule und freie Reichsstadt: Gymnasium und Akademie in Strassburg 1538–1621 (Wiesbaden: Franz Steiner, 1977).

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in the philosophy and theology faculties. Here Christianising commentaries on the Philosopher’s logic, physics and metaphysics provided a shared intellectual repertory – the doctrine of the substances, the four kinds of causation, the relation between spiritual and corporeal being – for the framing of arguments.42 Aristotelianism was less a single philosophy, however, than an encyclopaedia of disciplines and methods – ranging from metaphysics and physics through psychology and ethics to rhetoric and politics – from which widely varying ‘neo-Aristotelian’ philosophies could by synthesised.43 Metaphysical ‘Jesuit Aristotelianism’, for example, oriented to the formation of priests and theologians, had almost nothing in common – methodologically or substantively – with political ‘Protestant Aristotelianism’, designed for the education of politicians and jurists.44 Of course, ‘modern’ and clandestine intellectual texts – Hobbesian, Cartesian, Spinozist, Socinian – ﬂowed into the mix.45 Far from achieving the revolutionary modernisation of the late humanist world, however, such texts found their effects overdetermined by the local academic, religious and political circumstances that governed their reception.46 The manner in which local academic cultures developed depended on the elaboration of the humanist repertory within the curricula and pedagogies of particular kinds of universities, which were in turn informed by the larger religious and political forces that governed them. The most disciplined and uniform of the three university systems that jostled against each other in the Empire – in fact the only one that properly can be called a ‘system’ – was the Catholic one run by the Jesuit order, and designed to spearhead the counter-Reformation.47 Since 1599 the curriculum of 42

43

44

45

46

47

For this argument, see Charles B. Schmitt, ‘Philosophy and Science in Sixteenth-Century Universities: Some Preliminary Comments’, in J. E. Murdoch and E. D. Sylla (eds.), The Cultural Context of Medieval Learning: Proceedings of the First International Colloquium on Philosophy, Science, and Theology in the Middle Ages – September 1973 (Dordrecht: D. Reidel, 1975), pp. 485–537. For discussions of this diverse use of the Aristotelian inheritance, see Eckhard Keßler, Charles H. Lohr and Walter Sparn (eds.), Aristotelismus und Renaissance: In memoriam Charles B. Schmitt (Wiesbaden: Otto Harrassowitz, 1988), in particular Horst Dreitzel’s chapter, ‘Der Aristotelismus in der politischen Philosophie Deutschlands im 17. Jahrhundert’, pp. 163–92. Compare Charles H. Lohr, ‘Jesuit Aristotelianism and Sixteenth-Century Metaphysics’, in H. G. Fletcher and M. B. Schulte (eds.), Paradosis: Studies in Memory of Edwin A. Quain (New York: Fordham University Press, 1976), pp. 203–20; and Horst Dreitzel, Protestantischer Aristotelismus und absoluter Staat: Die “Politica” des Henning Arnisaeus (ca.1575–1636) (Wiesbaden: Franz Steiner, 1970). Jonathan I. Israel, Radical Enlightenment: Philosophy and the Making of Modernity 1650–1750 (Oxford: Oxford University Press, 2001). See the important argument to this effect in Martin Mulsow, Moderne aus dem Untergrund: Radikale Frühaufklärung in Deutschland 1680–1720 (Hamburg: Felix Meiner, 2002), pp. 1–40. In general see Hengst, Jesuiten an Universitäten und Jesuitenuniversitäten.

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Jesuit universities across central Europe had been determined by a single compulsory blueprint, the Ratio studiorum (plan of studies). The Ratio – to which Jesuits had to swear obedience on entering the order – determined that the Jesuit curriculum would be restricted to the disciplines of philosophy and theology. The three-year philosophy course – in which Aristotelian logic, physics (natural philosophy) and metaphysics were taught via the Christianising commentaries of the ‘second scholasticism’ – was designed as preparation for the four-year theology course, in which Catholic doctrine was elaborated in accordance with Thomist metaphysics.48 The strict subordination of a strongly metaphysical version of Aristotelian philosophy to an equally metaphysical Thomist theology, taught through meticulously regulated pedagogical exercises and disputations, was intended to produce disciplined and orthodox Catholic members of civil and religious elites.49 Jesuit universities were remarkably successful in repelling new secularising forms of political philosophy and the experimental sciences – Hobbesian and Spinozist philosophies were regarded as heresies – yet were not without their tensions. These arose in local circumstances along a longstanding ﬁssure line, where Jesuit philosophy was taught to law students, whose lay professors required a less metaphysical and more rhetorical-topical style of philosophy, suited, as they put it, to jurists rather than priests.50 The circumstances giving rise to Calvinist curricula in Reformed central Europe were quite unlike the nexus between a disciplined religious order and counter-Reformation princes and bishops that obtained in the Catholic case. Calvinist curricula emerged instead from local alliances between activist intellectuals and reforming princes, nobilities and city governments, for whom Calvinism was a means of driving particular agendas of political and religious reform, as we have seen in the case of the Hohenzollerns in Brandenburg. Calvinist university curricula and pedagogy thus displayed much greater variety and were more open to the proliferation of humanist discourses and disciplines – not just metaphysical philosophy and theology, but politics, jurisprudence, medicine, natural philosophy

48

49

50

G. M. Pachtler SJ (ed.), Ratio Studiorum et Institutiones Scholasticae Societatis Jesu (Berlin: Hofmann, 1887), pp. 300–38. English translation, Edward A. Fitzpatrick (ed.) and A. R. Ball (trans.), St. Ignatius and the Ratio Studiorum (New York: McGraw-Hill, 1933), pp. 160–8. Paul Richard Blum, ‘Der Standardkursus der katholischen Schulphilosophie im 17. Jahrhundert’, in Keßler, Lohr and Sparn (eds.), Aristotelismus und Renaissance, pp. 127–48. For a detailed discussion of one such controversy, taking place at the University of Ingolstadt during the ﬁrst decades of the seventeenth century, see Arno Seifert, ‘Der jesuitische Bildungskanon im Lichte zeitgenössicher Kritik’, Zeitschrift für bayerische Landesgeschichte 47 (1984), 43–75.

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and ‘encylopaedism’ – taking place during the sixteenth and seventeenth centuries.51 A single Calvinist institution, such as the Herborn Academy in the small territorial state of Nassau-Dillingen, could thus react to the agenda of its reforming count, Joachim VI, by permitting the elaboration of quite diverse disciplines and styles of thought. During his time there, the political jurist Johannes Althusius (1557–1638) drew on a variety of intellectual traditions – a ‘sociability’ based natural law, Roman-law conceptions of ofﬁce and corporation, local law derived from speciﬁc agreements, the humanist-historical doctrine of the ‘ephors’ or lower magistrates – in order to elaborate his theory of a confessional ‘estate state’.52 This is a state in which sovereignty is invested in the imperial estates and delegated to the prince, who must use it to secure both the temporal welfare of the people and their moral perfection in accordance with Calvinist doctrine.53 At almost the same time, Herborn’s Johann Alsted (1588–1638) was using a mix of Lullist, neo-Platonic and Aristotelian sources to elaborate an encyclopaedic form of philosophy.54 This was founded in principles identiﬁed with God’s intellection of the forms of things, and unfolded through a vast encyclopaedia of disciplines – from theology, law and philosophy to metallurgy, mining and brewing – whose completion he identiﬁed with the restoration of the powers of human understanding lost at the Fall.55 Neither Althusius’s political theory nor Alsted’s encyclopaedic philosophy lasted beyond the Thirty Years War, however, as the structures of the Calvinist estate state and the project of ‘universal reform’ were both eclipsed in that cataclysm, during which the Herborn Academy itself was scattered by Catholic imperial forces, in 1624–25. The Calvinist university at which Thomasius enrolled for his law doctorate in 1674, Frankfurt 51

52

53

54

55

For an overview, see Wilhelm Schmidt-Biggemann, ‘Einleitung’ [Die Schulphilosophie in den reformierten Territorien], in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 392–7. Johannes Althusius, Politica methodice digesta (Herborn, 1603). For a helpful introduction, see Horst Dreitzel, ‘Politische Philosophie’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 607–726, at 625–38. Robert von Friedeburg, ‘Reformed Monarchomachism and the Genre of the “Politica” in the Empire: The Politica of Johannes Althusius and the Meaning of Hierarchy in its Constitutional and Conceptual Context’, Archivo della Ragion di Stato 6 (1998), 129–53. Howard Hotson, Johann Heinrich Alsted, 1588–1638: Between Renaissance, Reformation, and Universal Reform (Oxford: Clarendon Press, 2000). Johann Heinrich Alsted, Encyclopaedia septem tomis distincta (Herborn, 1630). For Alsted’s apocalyptic understanding of the encyclopaedia, see Wilhelm Schmidt-Biggemann, ‘Apokalyptische Universalwissenschaft: Johann Heinrich Alsteds “Diatribe de mille annis apocalypticis”’, Pietismus und Neuzeit 14 (1988), 50–71; and Howard Hotson, Paradise Postponed: Johann Heinrich Alsted and the Birth of Calvinist Millenarianism (Dordrecht: Kluwer, 2001), pp. 78–82.

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on Oder in Brandenburg, was characterised by a quite different mix of humanist disciplines and learning. These included neo-Stoic political psychology (Lipsius), neo-Aristotelian political science (Arnisaeus and Conring) and Reformed Cartesianism. It also included the post-scholastic natural law of Hugo Grotius, as this had been transformed by Pufendorf and Becmann into a theoretical justiﬁcation for the kind of princely territorial state to which the Hohenzollerns aspired.56 It was, however, Lutheran academic culture that provided the most important context for Thomasius’s writings, both in terms of his own early formation and in terms of the role of Concordial Lutheranism in forming the confessional culture against which he did battle. The manner in which Lutheran universities mediated the array of late-humanist disciplines and discourses depended in large measure on whether their parent states and cities had adopted the Formula of Concord (1577) as the ofﬁcial and enforceable statement of Lutheran faith.57 In the Concordial universities – especially in the two Saxon universities of Leipzig and Wittenberg, and in Würtemberg’s Tübingen university and Hesse-Darmstadt’s Giessen – the Lutheran philosophy curriculum lost its earlier ‘Philippo-Ramist’ form. At Wittenberg during the 1530s, Philipp Melanchthon had supplied commentaries on Aristotle that had made it possible to co-ordinate natural law and natural philosophy with Lutheran doctrine – ‘law and gospel’ – while continuing to reject scholastic metaphysics for erasing this distinction altogether.58 By the beginning of the seventeenth century, however – and much to Thomasius’s later regret – metaphysics had returned to the philosophical arsenal of the Concordial universities, as the key means of explicating the Formula’s speculative Christology and defending it against rival Calvinist and Catholic theologies.59 Wittenberg’s Balthasar Meisner (1587–1626) and Giessen’s Christoph Scheibler (1589–1653) thus developed a metaphysics of spiritual substance designed to show how Christ’s divine and human natures – the former immaterial and inﬁnite, the latter corporeal and local – could exchange their properties in his ‘person’, thereby defending the 56 57

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Oestreich, ‘Die Bedeutung des niederländischen Späthumanismus für Brandenburg-Preußen’. Inge Mager, ‘Aufnahme und Ablehnung des Konkordienbuches in Nord- Mittel- und Ostdeutschland’, in M. Brecht, R. Schwarz and H. W. Krumwiede (eds.), Bekenntnis und Einheit der Kirche (Stuttgart: 1980), pp. 271–302. Sachiko Kusukawa, ‘Law and Gospel: The Importance of Philosophy at Reformation Wittenberg’, History of Universities 11 (1992), 33–58; and more expansively, Sachiko Kusukawa, The Transformation of Natural Philosophy: The Case of Philip Melanchthon (Cambridge: Cambridge University Press, 1995). See above all, Sparn, Wiederkehr der Metaphysik; and, more recently, Walter Sparn, ‘Die Schulphilosophie in den lutherischen Territorien’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 475–97.

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Lutheran ubiquity doctrine against the Calvinists and Jesuits.60 The same metaphysics made it possible to show how diabolical spirits could occupy the human body and command its faculties. Meisner also developed ethical and political arguments designed to ground civil law in Christian natural law, which permitted him to justify heresy prosecutions.61 The confessionalpolitical role of the Formula of Concord meant that its metaphysical elaboration was reciprocally related to its religious and political utilisation. Meisner was thus a vocal Saxon opponent of the Brandenburg electors’ campaign to reconcile the Lutheran and Calvinist religions – to which the Formula was a key obstacle – and, during a visit to Brandenburg in 1620, he delivered a series of vehemently anti-Calvinist and anti-court sermons, ended only by his forcible deportation from Berlin.62 In the law faculties of the Concordial universities, the dominant ﬁgure was the University of Leipzig’s Benedict Carpzov the younger (1595–1666), uncle of Thomasius’s arch enemy Johann Benedict Carpzov. Benedict Carpzov was the pre-eminent Protestant criminal jurist of the seventeenth century, and his career encapsulates the tight nexus of church, university and royal court in the confessional state. Carpzov, who had studied metaphysics at Wittenberg before obtaining his doctorate in law, combined his academic ofﬁce as professor of law at Leipzig with his duties as senior of the Leipzig Schöffenstuhl – his thirty-eight-year tenure began in 1620 – and his role as jurisconsult to the Saxon court.63 In keeping with the reforms proposed by Osse in his Testament, from 1574 Duke August had required the ﬁles of all Saxon criminal cases be sent for determination to the Leipzig Schöffenstuhl – an expert court or bureau of legal judgement – as part of his programme for centralising the Saxon legal system in the royal court.64 This gave Carpzov an unparalleled opportunity to develop the infrastructure for a confessional legal system. He did by this assimilating various legal sources – Romano-canon law, Saxon common law, Lutheran church law and imperial public law (but not the Treaty of Westphalia) – into a theocratic model that also included the crimes of heresy and witchcraft as understood by Concordial metaphysics and theology. The monumental 60

61 62 63

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Christoph Scheibler, Opus metaphysicum, duobus libris universum hujus scientiae systema comprehendens (Giessen, 1617). Balthasar Meisner, Philosophia sobria, 3 vols. (Wittenberg, 1611–23). Balthasar Meisner, Dissertatio de legibus (Wittenberg, 1616). See Nischan, Prince, People and Confession, pp. 231–2. Siegfried Hoyer, ‘Benedict Carpzov in Leipzig’, in G. Jerouschek, W. Schild and W. Gropp (eds.), Benedict Carpzov: Neue Perspektiven zu einem umstrittenen sächsischen Juristen (Tübingen: Diskord, 2000), pp. 27–42. Heiner Lück, ‘Benedict Carpzov und der Leipziger Schöffenstuhl’, in Jerouschek, Schild and Gropp (eds.), Benedict Carpzov, pp. 55–72.

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product of this labour of reception and systematisation was the Practica nova imperialis saxonica rerum criminalium (New imperial Saxon practice of criminal law) of 1635, which would inﬂuence Protestant criminal practice well into the eighteenth century.65 Conceiving criminal law in terms of the punishment of breaches of divine law by a prince acting as God’s viceregent, the Practica nova reﬂected the practice of the Leipzig Schöffenstuhl, which had regulated judicial torture and handed down many death sentences – especially for witchcraft and heresy – during Carpzov’s tenure.66 For Thomasius, Carpzov was thus the archetype of the Lutheran ‘papalist’ jurist, and we will discuss his engagement with the Practica nova in the context of his heresy disputations below in Chapters 4 and 5. If Thomasius’s main aim was to undo the tight mesh of religion, politics, law and philosophy that had been woven by the Concordial universities, then he found some of the most important intellectual means to this end in academic works produced in non-Concordial Lutheran universities. Of the handful of Lutheran universities operating in principalities that had refused to subscribe to the Formula of Concord, the most important in this regard was the University of Helmstedt, founded in 1576 in the ducal territory of Brunswick-Wolfenbüttel. Like the electors of Brandenburg, but with much less success, the Lutheran dukes of this territory had set out to integrate their Lutheran nobility and twin cities – Brunswick and Wolfenbüttel – within a centralised princely state.67 In refusing to sign up to the Formula the dukes sought to give a freer hand to their reform agenda and, in doing so, paved the way for two important developments at their new university. In the ﬁrst place, this enabled them to recruit a circle of humanist philosophers under the leadership of Johannes Caselius, whose introduction of Jacopo Zabarella’s neo-Aristotelian ‘logic of discovery’ – the method of analysis and synthesis – led to a conﬂict with defenders of Ramist method that ended with its banning by ducal decree in 1592.68 Freed from the theology-driven task of having to supply a metaphysics of immaterial substance, Caselius’s philosophy protégé, Cornelius Martini (1568–1621), developed a metaphysics quite unlike the Concordial form elaborated by 65

66

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Thomas Robisheaux, ‘Zur Rezeption Benedict Carpzovs im 17. Jahrhundert’, Hexenprozesse und Gerichtspraxis 6 (2002), 527–44. For the heresy and witchcraft statutes, see Benedict Carpzov, Practica nova imperialis saxonica rerum criminalium (Frankfurt, 1635), pt. 1, qu. 44, and pt. 1, qu. 50. Luise Schorn-Schütte, ‘Lutherische Konfessionalisierung? Das Beispiel Braunschweig-Wolfenbüttel (1589–1613)’, in Rublack (ed.), Die lutherische Konfessionalisierung in Deutschland, pp. 163–94. Markus Friedrich, Die Grenzen der Vernunft: Theologie, Philosophie und gelehrte Konﬂikte am Beispiel des Helmstedter Hofmannstreits und seiner Wirkungen auf das Luthertum um 1600 (Göttingen: Vandenhoeck & Ruprecht, 2004), pp. 21–8.

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Leipzig’s Balthasar Meisner and Giessen’s Christoph Scheibler. In using Zabarella’s method to derive analytic concepts for a science of ‘being as being’, Martini was able to exclude from his metaphysics the Concordial themes of spiritual substance, Christ’s two natures and ubiquity, developing in effect an analytic ontology.69 Even though Martini’s ontology did not win the day against Meisner’s and Scheibler’s metaphysics, the space that it opened between philosophy and theology would have important consequences for the Helmstedt curriculum and for Lutheran learning more broadly. For it was in this space that Martini’s student, Henning Arnisaeus (1575–1636), was able to develop a potent form of political science. This was modelled analytically on a practical end – the achievement of secular political order by a territorial prince wielding sovereign power – that broke radically with the theocratic Christian natural law conceptions of politics of the kind advanced by Meisner.70 It was this functional defence of territorial state sovereignty that allowed Helmstedt neo-Aristotelian political science to reach across the Thirty Years War and join hands with Pufendorf’s and Thomasius’s equally ‘statist’ natural law in the post-war period. The mediating ﬁgure was the Helmstedt humanist jurist Hermann Conring (1606–81), who combined the neo-Aristotelian construction of an autonomous political domain with a jurisprudence dedicated to relegating imperial Romano-canon law in favour of German public law.71 It important to observe that both Helmstedt thinkers relegated moral philosophical derivations of politics in favour of historical constructions. Arnisaeus did this by using neo-Aristotelian method to pose concrete political problems: how can political order be maintained in the face of estate resistance and religious division? For his part, Conring approached the current state of law in the German states through an historical account of the interactions between imperial Romano-canon law and various local German legal traditions.72 Secondly, Helmstedt’s existence outside the jurisdiction of the Formula of Concord allowed for a series of highly ambivalent and far-reaching developments in its theology faculty. Despite Cornelius Martini’s own 69 70

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Sparn, ‘Die Schulphilosophie in den lutherischen Territorien’, pp. 476–79. See the fundamental study by Horst Dreitzel, Protestantischer Aristotelismus und absoluter Staat: Die “Politica” des Henning Arnisaeus (ca.1575–1636) (Wiesbaden: Franz Steiner, 1970). Horst Dreitzel, ‘Hermann Conring und die politische Wissenschaft seiner Zeit’, in M. Stolleis (ed.), Hermann Conring (1606–1681). Beiträge zu Leben und Werk (Berlin: Duncker & Humblot, 1983), pp. 135–72. See Hermann Conring, De origine juris Germanici, commentarius historicus (Helmstedt, 1643). German translation: Hermann Conring, Der Ursprung des deutschen Rechts, trans. I. Hoffmann-Meckenstock (Frankfurt am Main: Insel Verlag, 1994).

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moves to separate philosophy and theology, his new metaphysics was vehemently attacked by the radical Lutheran theologian Daniel Hofmann (1538–1621). Helmstedt allowed Hofmann to develop an attack on the Formula’s speculative Christology so all-encompassing that it extended to metaphysics or natural theology as such.73 Hofmann’s radical opposition to the central doctrines of the Formula of Concord – the communicatio idiomata between Christ’s two natures and the associated ubiquity doctrine – rested on two pillars: his denial that philosophers could penetrate the mystery of the Eucharist, owing to the corruption of their merely ‘carnal wisdom’; and his afﬁrmation that theologians could only accede to this mystery as a result of the spiritual renovation of their intellects.74 Hofmann’s radical ‘two truths’ doctrine – the notion that something (Christ’s ubiquity) could be true in theology but false in philosophy – was relatively short-lived, owing to his arrest and sacking by Duke Heinrich Julius. This was largely because Hofmann’s attack on the duke’s metaphysicians had become a rallying point for the disgruntled nobles and cities.75 Even though Hofmann’s model of the holy theologian was displaced by Georg Calixt’s conception of the theologian as an academic scientist acceding to knowledge of a natural religion through natural reason, Helmstedt theology did not rejoin the metaphysical line that would lead from Meisner and Scheibler to Thomasius’s enemies Alberti, Roth and J. B. Carpzov.76 Calixt’s objective was not a natural theology supplying philosophical explications of the Christian doctrine, but a pared down body of Christian doctrine that he hoped might reconcile the Calvinists, and that earned him the sneering titles of ‘syncretist’ and ‘crypto-Calvinist’ from his Concordial Lutheran colleagues. Helmstedt thus gave birth to a form of Lutheran theology in which a moderate and irenic religious standpoint would be achieved not through the rationalist reconciliation of philosophy and theology but through their anti-rationalist separation. Lying adjacent to this theology was a secularising 73

74

75 76

See his attack on one of the Formula of Concord’s key authors, Jacob Andreae: Daniel Hofmann, Errores XVII Jacobi Andreae (Helmstedt, 1588). Daniel Hofmann, Pro duplici veritate Lutheri a Philosophis impugnata, et ad pudendorum locum ablegata (Magdeburg, 1600). For a helpful discussion, see Walter Sparn, ‘Doppelte Wahrheit? Erinnerungen zur theologischer Struktur des Problems der Einheit des Denkens’, in F. Mildenberger and J. Track (eds.), Zugang zur Theologie. Fundamentaltheologische Beiträge (Göttingen: Vandenhoeck & Ruprecht, 1979), pp. 53–78. Friedrich, Die Grenzen der Vernunft, pp. 75–94. Walter Sparn, ‘Die Krise der Frömmigkeit und ihr theologischer Reﬂex in nachreformatorischen Luthertum’, in H.-C. Rublack (ed.), Die lutherische Konfessionalisierung in Deutschland (Gütersloh: Gerd Mohn, 1992), pp. 55–82.

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political science and public law jurisprudence in which history had displaced natural law and moral philosophy as the central method. Here we are very close to the complex and ambivalent contours of Thomasius’s central positions, and it is signiﬁcant that while Thomasius embraced Conring, he could never bring himself to fully repudiate Hofmann. Given that he too would reject natural theology in its entirety, Thomasius preferred to treat Hofmann’s anti-rationalist separation of philosophy and theology as extreme rather than erroneous, mirroring the equally extreme merging of the two ways of knowing in scholastic metaphysics. thomasius and the history of lutheran academic culture We are now in a position to see how profoundly Thomasius’s thought and writing was shaped by the interaction between religion and politics in the seventeenth-century confessional state, by the divided academic cultures that ﬂourished in this milieu, and by the array of intellectual positions that these cultures offered as means of understanding this milieu. As a public law political jurist, Thomasius was deeply imprinted by the historical approach to law and politics that had developed within the extra-Concordial Lutheran curriculum of Helmstedt, even if he encountered this approach in the Calvinist university of Frankfurt on Oder, owing to the fact that it remained contested in the Concordial universities of the late seventeenth century. It was this approach that informed the militant political secularism of his work in Staatsrecht and Staatskirchenrecht – particularly with regard to heresy, witchcraft and the adiaphora question – and that saw him attempting to rework the natural law tradition into a form hospitable to the positive law of the secular prince, following the lead of Pufendorf and Becmann. At the same time, Thomasius’s thought was no less deeply informed by the choice he exercised between the distinctively Lutheran intellectual options presented to him in his home University of Leipzig. On the one hand, Valentin Alberti’s Christian natural law was the direct inheritor of the confessional metaphysical rationalism through which Meisner and Scheibler had explicated the Formula of Concord’s speculative Christology, and which Alberti now used to claim access to a higher ‘theo-rational’ foundation for law than the defence of sociability propounded by Hobbes and Pufendorf.77 On the other hand, through his father Jacob’s lectures, 77

Hans-Peter Schneider, Justitia Universalis. Quellenstudien zur Geschichte des “Christlichen Naturrechts” bei Gottfried Wilhelm Leibniz (Frankfurt am Main: Klostermann, 1967), pp. 247–53.

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Thomasius encountered a style of Lutheran philosophy that was not just deeply sceptical of this metaphysical rationalism, but approached it only via a historiography of philosophy in which it was treated as arising from the miscegenation of Greek philosophy and Christian faith.78 This antirationalist historiography of philosophy and theology runs deeply through Thomasius’s whole attack on Lutheran confessional culture and politics, including his Staatskirchenrecht. Here it provided him with a means of treating the confessional doctrines that deﬁne heresy as themselves quasiheretical products of Greek philosophy. Just how profoundly early modern German thought would be shaped by the options presented to Thomasius at Leipzig is shown by the fact that Leibniz – also a student of Jacob Thomasius – chose the path of metaphysical rationalism that would lead to new kinds of philosophical theology. Christian Thomasius’s anti-rationalist history of philosophy, however, would seek to destroy philosophical theology and replace it with a secularising political jurisprudence and a minimal, inward form of Christian faith, beyond the reach of all philosophical explication and political enforcement.79 One of the striking features of Thomasius’s commentary on Melchior Osse’s Testament is that it amounts to an historical commentary on the development of Lutheran academic culture written using an historiographic method that was itself deeply informed by that culture. The two parts of Osse’s Testament – his advice to Elector August of Saxony in the ‘mirror for princes’ genre, followed by his recommendations for the reform of the universities of Leipzig and Wittenberg – are connected by Osse’s argument that if the prince is to govern justly then, in addition to knowing how to restrain his own vices, he must surround himself with virtuous and educated ofﬁcials.80 These can only be supplied by the universities, in particular by the law faculties – to the extent that they train doctors learned in Roman law – but also by the theology faculties that provide the prince with the clergy and theologians required to maintain a single orthodox faith. In framing his response to the second part of the Testament, Thomasius moves immediately into the historiographic register, commenting that Leipzig was founded before the Reformation, originally serving to support papal and clericalist domination through the teaching of doctrinal superstition, heresy-hunting

78

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Ralph Häfner, ‘Jacob Thomasius und die Geschichte der Häresien’, in Vollhardt (ed.), Christian Thomasius, pp. 141–64. For more on this parting of the ways, see Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001). Osse, Testament, pp. 198–221.

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and the pursuit of vicious theological controversies, all of which lasted into the early days of the Reformation itself.81 Saxony, he argues, was not fully in the Protestant camp at this stage, as Elector August retained Catholic advisers and curried favour with the emperor, while his chancellor, Osse, continued to think in terms of a future reuniﬁcation of the divided faiths under the Empire. As a result, the many admirable academic reforms proposed by Osse – better discipline, improved payment for professors, properly organised colleges – are undermined by his own failure to grasp the role of Leipzig and Wittenberg in supporting the ‘papalist’ learning of the Lutheran state. This applies to the teaching of law and philosophy in particular, which take up the bulk of Thomasius’s commentary. Thomasius’s historical commentary on Saxon jurisprudence and its universities’ law faculties sets the scene for his secularising jurisprudential and political programme. Much of Osse’s own treatment of this theme is taken up with advice to the elector on the need to augment the number of university-trained jurists, both to provide him with advice and to staff the courts in Leipzig and Wittenberg, the Leipzig Schöffenstuhl in particular. Thomasius’s response is unequivocal. He argues that by facilitating the replacement of lay members of the Schöffenstuhl with academics trained in Romano-canon law, the Saxon law faculties were complicit in a papalist attempt to erode territorial laws and German legal traditions.82 Drawing in part on Conring’s De origine juris Germanici (1643), Thomasius sketches an alternative to the glossatorial systematisation of Romano-canon law, in the form of the historical recovery of various German law books containing the decisions of the lay courts.83 The role of modern public law (Staatsrecht) in Thomasius’s commentary is made clear in his remarks on a question that Osse raises only in his appendix: what good is it to reform the political and judicial administration of a particular state when the Empire of which it is a part is threatened with complete destruction as the result of religious fragmentation?84 Thomasius treats Osse’s response – his pronouncement that the Empire must once again be uniﬁed under a single religion – as symptomatic not just of Osse’s inability to understand his historical circumstances, but of the bankruptcy of Saxon political, juridical and religious culture in general. Thomasius ascribes Osse’s refusal to accept even the limited form of religious pluralism granted by the Treaty of Augsburg (1555) in part to his residual Catholicism. 81 83 84

Thomasius, Testament, note 102, pp. 207–10. 82 Ibid., note 103, pp. 210–11. Ibid., note 104, pp. 211–13. For Conring’s De origine, see note 72. Osse, Testament, pp. 532–4.

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It is also a sign, though, that Osse’s commitment to the Roman-law tradition blinded him to the pluralist implications of the new imperial public law arising from Augsburg.85 Rather than seeking religious unity, Thomasius argues, states should institute religious toleration, which was of course ofﬁcial Brandenburg Religionspolitik. The distinctive character of this toleration is made clear, however, in his comment that toleration should not be founded on a right to freedom of conscience, as dissidents claiming this right typically repress others as soon as their religion attains dominance. As we shall see in subsequent chapters, Thomasius instead defended a conception of toleration as the prince’s political right to forestall the mutual persecutions of warring churches and sects, grounded in his duty to maintain social peace and his indifference to religious truth.86 The priority of public law over Schulphilosophie in Thomasius’s construction of toleration is shown in one of his ﬁnal notes. Here he argues that there is no need to seek a philosophical unity for the rival religions as the treaties of Augsburg and Westphalia have enshrined religious pluralism in law, recognising that intellectual religious unity is both impossible and impractible.87 Taken together, Thomasius’s notes on the teaching of philosophy at Leipzig and Wittenberg amount to an historical essay on the Lutheran arts curriculum. He identiﬁes Osse’s outline of the Saxon universities’ liberal arts curriculum as a version of Melanchthon’s programme, about which Thomasius has mixed views, owing to its reintroduction of Aristotelian philosophy to the Lutheran curriculum following its exclusion by Luther. This delayed the introduction of subjects required for the proper preparation of law and medical students.88 Drawing historical evidence from Wittenberg’s academic statutes, Thomasius records that Melanchthon taught moral philosophy via his commentary on Aristotle’s Ethics, and, despite its utter uselessness, also insisted that the Wittenberg students be taught Aristotelian physics, on the spurious grounds that it showed how ethics could cultivate the virtues in human nature.89 Once Thomasius gets to the teaching of logic, however, the skies grow even darker. Recalling that Luther had repudiated the scholastic tradition, and particularly the use of Aristotelian logic to expound scripture, Thomasius comments that Melanchthon’s initial introduction of dialectics was quite circumscribed. After Luther’s death, however, his disciple reintroduced Aristotle’s Organon,

85 87

Thomasius, Testament, note 267, pp. 534–5. 86 Ibid., note 268, pp. 537–42. Ibid., note 269, pp. 542–4. 88 Ibid., note 152, pp. 325–8. 89 Ibid., note 154, pp. 329–30.

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and such theologians as Justus Jonas and David Chytraeus began to argue that the doctrine of the Trinity could not be understood without Aristotle’s logic, thereby initiating a new scholasticism within the Saxon universities, as recorded in Gottfried Arnold’s indispensable history of heresy.90 As a result of the neo-scholastic development of the Philippist curriculum in the Saxon universities during the sixteenth century, Thomasius argues, the indispensable disciplines of history and politics were either not taught or were taught very badly. It was not until the late seventeenth century that histories of the church and civil government – crucial for understanding the misuse of religion to oppress the innocent and infringe the rights of the secular prince – ﬁrst appeared, with pride of place in this regard going to Gottfried Arnold.91 The discipline of politics was equally degraded. In failing to separate it from ethics, Melanchthon had developed no understanding of political prudence or the art of government, leaving him incapable of penetrating the secrets of ‘political papalism’.92 Above all, though, it was the return of metaphysics to Wittenberg and Leipzig at the beginning of the seventeenth century – Thomasius has checked the statutes and can ﬁnd no mention of the discipline during the sixteenth century after its expulsion by Luther and Melanchthon – that marks the emergence of a full Lutheran scholasticism. In one of the ﬁrst formulations of a historiography that continues to inform modern accounts – including the present one – Thomasius attributes this return of metaphysics to the pressure to provide philosophical defences of Concordial Lutheranism, against the Calvinists in particular.93 Wittenberg’s Jacob Martini is singled out as a representative of this emergent Lutheran metaphysics, which attacked not just the Calvinists but anti-metaphysical Lutherans too, speciﬁcally Daniel Hofmann’s disciple Wenzel Schilling. If Martini was guilty of using natural reason to expound matters properly belonging to faith, then Schilling has fallen into the opposite extreme, using religion to clarify things that fall within the scope of natural reason.94 Thomasius thus moves between a broad conception of philosophy as the liberal arts, whose reform he seeks, and a narrower scholastic form – philosophy as logic, metaphysics and ethics – whose theological admixture means that it can only be handled at a distance, using the prophylactic tongs of history. What is required is a form of philosophy separated from theology and purged of metaphysics, but capable of teaching the historical, 90 93 94

Ibid., note 157, pp. 333–5. 91 Ibid., note 160, pp. 342–4. 92 Ibid., note 160, pp. 345–6. The classic modern scholarly formulation is provided in Sparn, Wiederkehr der Metaphysik. Thomasius, Testament, note 160, pp. 348–51.

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political and natural-law disciplines required by those destined for public ofﬁce in a deconfessionalised state, law students in particular. With this, Thomasius was summarising his long campaign to reform Protestant academic philosophy, to which we shall now turn.

chapter 2

The reform of philosophy

To the degree that it posits the unity of human reason, the modern historiography of philosophy is dogged by twin assumptions: that the discipline of philosophy forms an internally commensurable ﬁeld of intellectual activities, or that it will become such over time, as the result of the way history itself irons out differences and paves the way for ever more uniﬁed and reﬂexive expressions of this reason. Whatever the larger fate of these assumptions, they are as useless for understanding the disposition of philosophy within the geo-political and geo-intellectual order of the northern Holy Roman German Empire as they are for understanding Thomasius’s disposition towards philosophy. In the ﬁrst place, we have seen that (unlike England) philosophy in this region was overwhelmingly Schulphilosophie: a deployment of intellectual materials and pedagogies in accordance with the faculty structure and curricular purposes of confessionally divided universities. This fact led to material differences not only in the form and content of disciplines taught as ‘philosophy’ – in objects of knowledge, forms of problematisation, modes of argument, validity criteria, modes of accepting (or rejecting) intellectual authorities and traditions – but also in the basic purposes and scope of philosophical disciplines. Such differences were in part reﬂected and in part determined by the alliances that particular styles of philosophy formed with other disciplines. We saw this in the joining of a metaphysically styled philosophy to confessional theology in Jesuit and Concordial Lutheran universities, contrasting with the attachment of neo-Aristotelian analytic method (Paduan ‘medical empiricism’) to the secularising disciplines of political science and public law at the University of Helmstedt. These alliances were in turn cemented by the educational demands of confessionalising churches and reforming polities, whose multiple rivalries multiplied forms of philosophy and kinds of philosopher. Thomasius’s negotiation of this ﬁeld thus took place not on the basis of a common understanding of philosophical reason, but in the form of an historical 51

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compulsion to choose between rival self-understandings of philosophy and models of the philosopher. We shall see that his choices were shaped not by his own system of philosophy – he championed eclecticism over system – but by his reception of a historiography of philosophy that was itself an intervention in this rivalrous ﬁeld. Secondly, if philosophy as an historical activity thus can only be approached through the diverse self-understandings of philosophy associated with various philosophical cultures, then our own historiography of philosophy will need to take a ‘regional’ form, as Jean-Pierre Schobinger has argued with regard to seventeenth-century philosophy more broadly.1 It must be attuned to the institutional milieux in which particular philosophical cultures emerged, and the geo-political (or geo-religious) settings of these milieux. Not only does a history organised in terms of an array of regional self-understandings of philosophy avoid anachronistic presentcentred philosophical history, it also acknowledges that during the seventeenth century there was no single or ruling understanding of what counts as ‘philosophy’ or a ‘philosopher’.2 Such a history thus unequivocally distinguishes itself from a historiography that purports to provide a unifying history of something called ‘philosophy’. It does not matter whether uniﬁcation is imagined in terms of ‘reason’s’ supposed evolution towards self-consciousness,3 the reconciliation of dialectically opposed types of philosophy (rationalism and empiricism, subjectivist and scientiﬁc styles),4 or the associated harmonisation of diverse philosophical cultures within a single intellectual epoch – the Aufklärung – identiﬁed with the advent of

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3

4

Jean-Pierre Schobinger, ‘Gesamtvorwort’, in J.-P. Schobinger (ed.), Grundriss der Geschichte der Philosophie. Die Philosophie des 17. Jahrhunderts, Band 1: Allgemeine Themen, Iberische Halbinsel, Italien (Basel: Schwabe, 1998), pp. xxxix–lvi, esp. pp. xlii–xlviii. For more on this, see Conal Condren, Stephen Gaukroger and Ian Hunter, ‘Introduction’, in C. Condren, S. Gaukroger and I. Hunter (eds.), The Philosopher in Early Modern Europe: The Nature of a Contested Identity (Cambridge: Cambridge University Press, 2006), pp. 1–16. Cf., Helmut Holzhey, ‘Der Philosoph im 17. Jahrhundert’, in Schobinger (ed.), Die Philosophie des 17. Jahrhunderts, Band 1, pp. 3–30. On the role of the ‘epistemological paradigm’ in establishing a retrospective unity for early modern philosophy, see Knud Haakonssen, ‘The History of EighteenthCentury Philosophy: History or Philosophy?’, in K. Haakonssen (ed.), The Cambridge History of Eighteenth-Century Philosophy (Cambridge: Cambridge University Press, 2006), pp. 3–25. Most famously in Georg Wilhelm Friedrich Hegel, Lectures on the Philosophy of World History. Introduction: Reason in History, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1975). For a more recent example, see Lucien Braun, Histoire de l’histoire de la philosophie (Paris: University of Strasburg Press, 1973). German translation: Lucien Braun, Geschichte der Philosophiegeschichte, trans. F. Wimmer (Darmstadt: Wissenschaftliche Buchgesellschaft, 1990). The paradigmatic Anglophone example of this Kantian form of philosophical history is Lewis White Beck, Early German Philosophy: Kant and His Predecessors (Cambridge, Mass.: Harvard University Press, 1969).

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modernity.5 Such a history is also sceptical regarding claims for the transregional signiﬁcance of particular philosophical methods or theories – whether made on behalf of Aristotelian tradition,6 Renaissance innovation7 or a radical Spinozism.8 The mode in which such philosophies were received varied so strongly with local academic cultures that it is implausible to treat them as bearers of a trans-regional rationality whose internal autonomy and external breadth might qualify it as ‘Western’, ‘modern’ or ‘enlightened’.9 Were there to be such a thing as the ‘philosopher on the world stage’ – a ﬁgure who seems to belong increasingly to the scenography of nineteenthcentury German philosophical history – then Thomasius was not it. Not only did he come from a time and place where there was no consensus about what a philosopher was, but the world he addressed was limited to the Protestant academic culture of the northern Holy Roman German Empire, its neighbouring Dutch and Scandinavian forms and its Baltic outposts.10 5

6

7

8

9

10

Recent examples include Norbert Hinske, ‘Die tragenden Grundideen der deutschen Aufklärung. Versuch einer Typologie’, in R. Ciafardone (ed.), Die Philosophie der deutschen Aufklärung. Texte und Darstellung (Stuttgart: Philipp Reclam, 1990), pp. 407–58; Werner Schneiders, Hoffnung auf Vernunft. Aufklärungsphilosophie in Deutschland (Hamburg: Felix Meiner, 1990); and Wilhelm Schmidt-Biggemann, Theodizee und Tatsachen: das philosophische Proﬁl der deutschen Aufklärung (Frankfurt am Main: Suhrkamp, 1988). Charles B. Schmitt, ‘Philosophy and Science in Sixteenth-Century Universities: Some Preliminary Comments’, in J. E. Murdoch and E. D. Sylla (eds.), The Cultural Context of Medieval Learning: Proceedings of the First International Colloquium on Philosophy, Science, and Theology in the Middle Ages – September 1973 (Dordrecht: D. Reidel, 1975), pp. 485–537; Charles H. Lohr S. J., ‘Jesuit Aristotelianism and Sixteenth-Century Metaphysics’, in H. G. Fletcher and M. B. Schulte (eds.), Paradosis: Studies in Memory of Edwin A. Quain (New York: Fordham University Press, 1976), pp. 203–20; and Charles H. Lohr S. J., ‘Die Rezeption der aristotelischen Philosophie in lutherischen Deutschland’, in W. Brandmüller, H. Immenkötter and E. Iserloh (eds.), Ecclesia Militans: Studien zur Konzilien- und Reformationsgeschichte. Remigius Bäumer zum 70. Geburtstag gewidmet (Paderborn: Ferdinand Schöningh, 1988), pp. 179–92. See, for example, Stephen Menn, ‘The Intellectual Setting’, in D. Garber and M. Ayers (eds.), The Cambridge History of Seventeenth-Century Philosophy (Cambridge: Cambridge University Press, 1998), pp. 33–86; and Margaret J. Osler (ed.), Atoms, Pneuma, and Tranquility: Epicurean and Stoic Themes in European Thought (Cambridge: Cambridge University Press, 1991). Jonathan I. Israel, Radical Enlightenment: Philosophy and the Making of Modernity 1650–1750 (Oxford: Oxford University Press, 2001). In addition to Schobinger’s argument in this regard, see also Klaus-Dieter Eichler, ‘Klugheit und Decorum – Thomasius und das Problem der Relativität des Ethos’, in K. Bal, V. Caysa and P. StekelerWeithofer (eds.), Philosophie und Regionalität (Wroclaw: Wroclaw University Press, 1999), pp. 65–78; and Martin Mulsow, Moderne aus dem Untergrund: Radikale Frühaufklärung in Deutschland 1680– 1720 (Hamburg: Felix Meiner, 2002), pp. 1–40. On the reception of Thomasius in these settings, which varied signiﬁcantly depending on which of his several intellectual genres – natural law, ethics, theology, public law, politics, educational reform – was deemed signiﬁcant for local circumstances, see Hinrich Rüping, ‘Thomasius und seine Schüler im brandenburgischen Staat’, in H. Thieme (ed.), Humanismus und Naturrecht in Berlin-BrandenburgPreussen (Berlin: Walter de Gruyter, 1979), pp. 76–89; Rüping, ‘Christian Thomasius und seine Schule im Geistesleben des 18. Jahrhunderts’, in H. Lück (ed.), Recht und Rechtswissenschaft in mitteldeutschen Raum (Cologne: Böhlau Verlag, 1998), pp. 127–36. Thomasius’s Scandinavian reception is discussed in

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Thomasius’s mode of engaging with philosophy – the limited and particular sense in which he can be regarded as a philosopher – was deeply imprinted by both the scatter of ﬁelds claiming the status of philosophy, and the regional intellectual culture in which he operated. Before addressing his philosophical writings, then, we need to clarify this engagement. thomasius and german schulphilosophie As a result of the fact that modern scholarly approaches to Thomasius are divided between the history of philosophy and the history of political and jurisprudential thought, there is conﬂict between those who treat him fundamentally as a philosopher,11 and those who insist on approaching him as a public law jurist.12 Frank Grunert has sought to mediate this conﬂict by arguing that Thomasius was a jurist who sought a philosophical foundation for the law, in the form of the voluntarist philosophical anthropology elaborated in his natural law writings.13 Much of this discussion, though, has insufﬁcient regard for the diversity of philosophical cultures with which Thomasius was confronted, the historical circumstances driving his negotiation of this diversity or the intellectual instruments that he used to steer his way. In fact it is idle to dispute over whether Thomasius’s work is philosophical or non-philosophical without a characterisation of the particular historical models of philosophy relative to which this judgement might be made, or was made by Thomasius himself. It quite revealing, however, to characterise his work as non-philosophical in relation to a kind

11

12

13

an important Ph.D. thesis by Kasper Risbjerg Eskildsen, ‘The Habit of Enlightenment: Scholars and Scholarly Identities in Northern Europe 1680–1750’ (University of Copenhagen, 2005); and his Baltic reception is canvassed in Hanspeter Marti, ‘Christian Thomasius und der Pietismus im Spiegel ihrer Wirkungsgeschichte: Zur philosophiegeschichtlichen Beudeutung der Thomasius-Rezeption im Baltikum’, in F. Vollhardt (ed.), Christian Thomasius (1655–1728). Neue Forschungen im Kontext der Frühaufklärung (Tübingen: Niemeyer, 1997), pp. 235–50. Werner Schneiders, ‘Zwischen Welt und Weisheit. Zur Verweltlichung der Philosophie in der frühen Moderne’, Studia Leibnitiana 15 (1983), 2–18; Schneiders, Hoffnung auf Vernunft, ch. 3; Helmut Holzhey, ‘Der Philosoph für die Welt – eine Chimäre der deutschen Aufklärung?’ in H. Holzhey and W. C. Zimmerli (eds.), Esoterik und Exoterik der Philosophie: Beiträge zu Geschichte und Sinn philosophischer Selbstbestimmung (Basel: Schwabe, 1977), pp. 117–38, and Helmut Holzhey, ‘Initiiert Thomasius einen neuen Philosophentypus?’ in W. Schneiders (ed.), Christian Thomasius 1655–1728: Interpretationen zu Werk und Wirkung mit einer Bibliographie der neueren ThomasiusLiteratur (Hamburg: Felix Meiner, 1989), pp. 37–51. Notker Hammerstein, ‘Thomasius und die Rechtsgelehrsamkeit’, Studia Leibnitiana 11 (1979), 22–44; Ian Hunter, ‘The Passions of the Prince: Moral Philosophy and Staatskirchenrecht in Thomasius’s Conception of Sovereignty’, Cultural and Social History 2 (2005), 113–29. Frank Grunert, ‘Der Jurist als Philosoph. Zur Disziplinendifferenzierung und Disziplineninterferenz bei Christian Thomasius’, in H. Lück (ed.), Christian Thomasius (1655–1728) als Wegbereiter moderner Rechtskultur und Juristenausbildung (Hildesheim: Georg Olms, 2006).

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of philosophy that he was trying to destroy or, conversely, as philosophical in relation to the form of ‘Welt-Weißheit’ (secular wisdom) that he was attempting to cultivate, even if the latter is not called philosophy in today’s universities. Thomasius approached philosophy as Schulphilosophie, whose rivalrous multiplication in the confessionally divided universities of the northern Holy Roman German Empire had produced the diversity that confronted him. In Chapter 1 we noted that this diversity included the Lullist-Ramist conception of philosophy as a universal ars or technique of thought that potentially embraced all other arts and sciences in the form of the Calvinist encyclopaedia.14 The term philosophy was also applied, though, to the trio of Aristotelian disciplines – logic, physics and metaphysics – that served as preparation for Thomist theology in Jesuit universities, and to a parallel use of these disciplines as a means of explicating speculative Christology in Concordial Lutheran universities.15 Neo-Aristotelian method (Zabarella), we observed, was also put to a variety of uses particularly in the non-Concordial university of Helmstedt, where it was used to develop a non-theological metaphysics (in the form of an analytic ontology) and, more inﬂuentially, a powerful political science oriented to the end of political order ungrounded in metaphysics or natural law.16 The degree to which Thomasius’s relation to philosophy was determined by self-conscious engagement with this diversity is made clear in his Einleitung zur Hof-Philosophie (Introduction to Court Philosophy) of 1688, where, after giving his own outline of the terrain of Schulphilosophie, he offers the following summary formulation: Having now provided this outline, it should thus be noted: (1) That philosophy in a quite extensive sense may be taken as a concept of all wisdom, no matter how the principle from which it arises might be characterised, in such a way that even revealed theology would be comprehended under it. (2) In so far as it is opposed to theology, then it can be taken for a concept of wisdom that arises from the light of reason, in such a way that it also comprehends jurisprudence and medicine. (3) If it 14

15

16

Wilhelm Schmidt-Biggemann, Topica universalis. Eine Modellgeschichte humanistischer und barocker Wissenschaft (Hamburg: Felix Meiner, 1983); and Wilhelm Schmidt-Biggemann, ‘Apokalyptische Universalwissenschaft: Johann Heinrich Alsteds “Diatribe de mille annis apocalypticis”’, Pietismus und Neuzeit 14 (1988), 50–71. Paul Richard Blum, ‘Der Standardkursus der katholischen Schulphilosophie im 17. Jahrhundert’, in E. Keßler, C. H. Lohr and W. Sparn (eds.), Aristotelismus und Renaissance: In Memoriam Charles B. Schmitt (Wiesbaden: Otto Harrassowitz, 1988), pp. 127–48. Walter Sparn, ‘Die Schulphilosophie in den lutherischen Territorien’, in H. Holzhey and W. Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4: Das heilige Römische Reich deutscher Nation, Nord- und Ostmitteleuropa (Basel: Schwabe, 2001), pp. 475–97. Horst Dreitzel, ‘Der Aristotelismus in der politischen Philosophie Deutschlands im 17. Jahrhundert’, in Keßler, Lohr and W. Sparn (eds.), Aristotelismus und Renaissance, pp. 163–92.

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is considered in so far as it is opposed to jurisprudence and medicine, then it embraces all of the arts, both the liberal and the illiberal [technical] arts. (4) [Or it can be considered] in so far as it is opposed to the illiberal arts. (5) [Or it can be considered] in so far as it opposes the liberal arts either to grammar or to rhetoric. And ﬁnally (6) in so far as it is opposed to the mathematical disciplines or (7) to logic, then (8) it will be taken solely for metaphysics or theology.17

In commenting on this array, Thomasius observes that the ancients typically accepted the last meaning, equating philosophy with natural theology. Pythagoras identiﬁed philosophy with the love of wisdom and Plato with the love of God, as if man’s understanding approximated God’s within his restricted capacities. It was in this context that Aristotle spoke of an ‘art of all arts’ and a ‘science of sciences’, improperly attaching these predicates to philosophy taken in a broad sense. From this extensive understanding, philosophy was construed as a science of divine and human things, as it appeared that divine things included not just God but his creation, hence physics, and human action, hence moral philosophy. If the modern Aristotelians have drawn in a confused way on this extended meaning, then the Ramists have cultivated philosophy in Thomasius’s fourth sense of the term, treating it as an interdependent system of the liberal arts, although Thomasius notes that the ancients and many Lutherans oppose philosophy to the liberal arts.18 In beginning to negotiate these divergent constructions of philosophy, Thomasius ﬁrst moves to an historical and operational construal: philosophy should be deﬁned in terms of the faculty bearing this name in ‘our’ (Lutheran) universities, thus: ‘in so far as such philosophy is opposed to the three higher faculties and contains the liberal arts within it’.19 He then proceeds to order the four faculties in terms of their principles of knowledge and the purposes for which knowledge is cultivated.20 Theology pursues man’s eternal beatitude, to which the principles of unaided reason contribute nothing, so that theology relies on revelation and has no need of reason, although revelation may also contribute to man’s temporal happiness. The faculties may further be regarded as autonomous or instrumental, with philosophy being understood as instrumental for jurisprudence and medicine, each of which has an autonomous end: the health of the mind and the body, respectively. Somewhat surprisingly, Thomasius declares that

17

18

Christian Thomasius, Einleitung zur Hof-Philosophie (Frankfurt and Leipzig, 1710; repr. Hildesheim: Georg Olms, 1994), pp. 67–8. Original Latin version, Introductio ad philosophiam aulicam (Leipzig, 1688). Thomasius, Hof-Philosophie, pp. 68–9. 19 Ibid., p. 69. 20 Ibid., pp. 70–1.

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jurisprudence relies on both principles of knowledge, reason and revelation; although we shall see in Chapter 3 that this is because at this early stage of his programme he wanted jurists to have independent access to biblical law, rather than relying on the theologians. Medicine and philosophy, however, are to rely on reason alone. With this, Thomasius is in a position to offer a ﬁrst draft of his conception of philosophy: In characterising philosophy, I have said that its end is the ﬂourishing of the human race, that is, temporal happiness, which means that (1) philosophy will once again be separated from theology, and (2) it will also be denied that the ultimate purpose of theoretical philosophy is directed to pure contemplation, because it too must be subordinated to those activities that serve the ﬂourishing of the human race, which Seneca himself had already recognised in his time.21

Rather than being a prelude to the elaboration of a distinctively Thomasian philosophy, however, this characterisation should be understood only as a negative intervention into Lutheran Schulphilosophie, as it is directed against the founding error of this philosophy: the mixing of theology and philosophy. Like scholastic philosophy more broadly, Lutheran academic philosophy, Thomasius argues, is characterised by a quasimerging of the theology and philosophy faculties, as a result of the ‘confusion’ of the two principles of knowledge: revelation (‘the divine light’) and reason (‘the light of nature’). This mixing can occur in two ways: ‘when from the principles of revelation conclusions are derived regarding things whose knowledge depends on the light of nature’; and ‘when from the principle of reason conclusions are advanced regarding the mysteries of faith’. These confusions coalesce in scholasticism which arose from the mistaken belief that the church would be well served if ‘the philosophers or metaphysicians would industriously cultivate theology or the theologians would philosophise’.22 The array of philosophical and theological doctrines that Thomasius seeks to disqualify as part of this miscegenated ‘Christian philosophy’ is wide and deep. It includes the metaphysical distinction between existence and essence – dogs and dogness – and the fundamental theme of Christian metaphysics, that a principle has been discovered from which both time and nature derive. Thomasius declares that both of these pillars of university metaphysics are articles of faith not objects of knowledge. The same strategy of disqualiﬁcation applies to Aristotelian ‘Christian physics’ with its theologically derived notion of the common creation of matter, and to a 21

Ibid., pp. 81–2.

22

Ibid., pp. 71–2.

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‘Christian ethics’ purporting to explicate original sin, as these are both objects of faith not knowledge. The fact that some philosophers claim to know about angels and separated human souls through the cultivation of a ‘Christian pneumatology’, while others claim to derive the principles of natural law and ethics by invoking man’s pre-lapsarian state of innocence in a ‘Christian natural law’, are also treated as central examples of the egregious confusion that arises when philosophers attempt to generate knowledge from Christian doctrine, or to explicate the latter using philosophical reason.23 Considering that his theological and philosophical opponents at Leipzig – Valentin Alberti and Johann Benedict Carpzov – were exponents of most of these disciplines and doctrines that Thomasius sought to abrogate, their outrage at the Hof-Philosophie is understandable. Neither should it be forgotten that, despite Thomasius’s best efforts, most of these metaphysical doctrines have been transmitted into the twenty-ﬁrst century, via the line of German metaphysics that would pass from Leibniz through Wolff to Kant, and from Kant through the neo-Kantians to Husserl and Heidegger and their philosophical progeny. Thomasius’s attack on metaphysical Schulphilosophie, however, is neither based in a rival philosophical system nor takes the form of a philosophical critique. It might appear that his attack on the confusion of theological and philosophical principles in scholasticism is indeed such a philosophical critique. Thomasius, though, does not view this confusion as a philosophical error to be rectiﬁed through a superior philosophy. He regards it rather as an historical confusion that brought (scholastic) philosophy and theology into existence. It is thus an error that can only be understood and criticised through the discipline of history, although this discipline may itself be regarded as part of philosophy in the broader sense of Welt-Weißheit, understood as inclusive of the liberal arts. We shall see that Thomasius’s early attempt to formulate this key idea drew heavily on his father Jacob’s historiography of philosophy, where the mixing of pagan philosophy and Christian revelation is treated as the historical source of Christian heresies.24 In the Hof-Philosophie Thomasius thus makes no attempt to refute Christian philosophy in its own philosophical terms. Instead, treating its central forms – Christian metaphysics, pneumatology, physics, ethics and natural law – as self-refuting, he moves immediately to the historical damage they have caused to Christianity 23 24

Ibid., pp. 75–7. On this, see the illuminating Ralph Häfner, ‘Jacob Thomasius und die Geschichte der Häresien’, in Vollhardt (ed.), Christian Thomasius, pp. 141–64.

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through the fostering of heresies. In refuting the claim that the church beneﬁts when metaphysicians conduct theology and theologians practise philosophy, Thomasius thus shifts directly into the register of church history: ‘But how far this [claim] agrees with the truth can best be shown through the origin of heresies, which have arisen in the church as a result of this two-fold confusion, as have the many religious troubles that have continued from the beginning of scholastic theology and into our own time.’ Further, ‘we cannot pass by in silence the fact that this same Christian philosophy, which applies its philosophical system to theology, has always been very harmful to Christianity (because it is the prime source of nearly all heresies and sects), is not the slightest use or service in refuting heretics’.25 By 1697 at the latest, however, Thomasius has transformed and expanded his father’s history of metaphysics, now treating metaphysics less as the source of heresy than as the origin of the confessional theology that hereticates, and thereby does great harm not just to the church but to the inhabitants of civil society more broadly: Some would ﬁnd it paradoxical if I said that from the time of Constantine the Great to the Reformation, all of the controversial questions, which were supposed to belong to the Catholic faith, and from which heresies arose, were in fact purely and simply philosophical – metaphysical and logical for the most part; and, therefore, that myriads of men have been butchered and banished not for God’s sake, but for the sake of Aristotle’s or Plato’s metaphysics. Nonetheless, this paradox is only too true.26

In one sense of the term ‘philosophy’, then – the sense assumed by most modern philosophers and many philosophical historians – Thomasius’s interventions in Schulphilosophie were not themselves philosophical and do not belong to a history of philosophy in this sense. They were not attempts to diagnose and rectify mistakes on the basis of a common understanding of philosophical reason or on the basis of a philosophical reason that would become common, as the result of a dialectical process in which Thomasius’s ‘philosophy’ would be reconciled with that of his opponents. Rather, they were attempts to diagnose an error that had brought a particular form of philosophical reason into historical existence, and whose rectiﬁcation would thus require its historical extirpation. This was a diagnosis based in

25 26

Thomasius, Hof-Philosophie, pp. 72–3, 81. Christian Thomasius, De jure principis circa haereticos (Halle, 1697). German translation, Vom Recht evangelischer Fürsten gegen die Ketzer, in his Auserlesene deutsche Schriften, Erster Teil (Halle, 1705; repr. Hildesheim, 1994), pp. 308–76, at p. 325. I cite from my translation, ‘On the Right of Protestant Princes Regarding Heretics’, given in the appendix of this book, p. 178.

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part on his father’s historical account of the origins of scholasticism as a hybrid of Greek philosophical theology and Christian doctrine, and in part on his own history of the role of Lutheran academic philosophy in elaborating such confessional creeds as the Formula of Concord, that ‘manual of heretication’. It is important to remember that in Thomasius’s battles with such Lutheran scholastics as Alberti, Roth and Johann Benedict Carpzov, it was they who were the rationalists, championing human reason by treating it as the imago Dei through which man might accede to the transcendent essences and the divinely ordered law of nature. Conversely, it was Thomasius who denied reason’s capacity to know the essences or govern the passions, and argued that his opponents’ rationalism was itself a corrupt mixture of philosophy and theology whose functional integration in the confessional state undermined its own universalistic claims. If we recall the way in which Alberti and the Carpzov brothers ( Johann Benedict and Samuel, the Saxon court pastor) responded to Thomasius’s attack – by publicly denouncing him for irreligion, ‘indifferentism’ and ‘enthusiasm’, and then organising the ducal edict that banned him from lecturing at Leipzig – then we can begin to see what the absence of shared philosophical principles amounted to in practice. If Thomasius engaged his opponents not on the elevated ground of a dialectical reason rising towards Kant, but in the bear-pit of religious and political dispute that was the confessional university, then an intellectual history of his philosophical writings must be able to locate them ﬁrmly within this vehement, open-ended and unpredictable combat zone. At the same time, Thomasius had no intention of relinquishing the inheritance of philosophy to those who identiﬁed it with logic, ethics and metaphysics and tied it to theology. Suitably reconstructed – restricted to the ‘light of nature’, separated from all theological topics and modes of thought – and supplied with the purpose of fostering man’s worldly ﬂourishing rather than the ‘useless’ end of contemplation, it would be possible to afﬁrm a different kind of ‘philosophy’. Closely identiﬁed with the philosophy or arts faculty, this philosophy should be instrumental in relation to the higher faculties of jurisprudence and medicine, and should relegate all attempts to know the transcendent essences or concepts in favour of an empirically based investigation of causes. Further, it should be eclectic in the sense of abandoning the pursuit of truth based in a single philosophical system, the hallmark of ‘sectarian philosophy’. It should adopt instead a pluralistic and pragmatic intellectual attitude that permitted useful truths to be gathered from a variety of disciplines and

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doctrines, in the manner of Francis Bacon, Jacob Sturm and the English Royal Society.27 Philosophy thus appears in Thomasius’s writings under two different topicalisations, in two different senses and in distinct intellectual genres. Lutheran Schulphilosophie is the object of a new historiography of philosophy that suspends its truth claims and, by investigating its misbegotten philosophical-theological origins and its malign confessional-political uses, marks it for historical elimination. Thomasius’s discussions of empirically oriented eclectic philosophy, however, are topicalised via the genre of educational and social reform. This complements the history of metaphysical philosophy in the confessional state with an outline of a reformed philosophy curriculum suited to the formation of jurists destined for high ofﬁce in multi-confessional secularised polities. To understand Thomasius’s philosophical writings, then, we must clarify the two different yet interconnected ways in which he engaged with Lutheran Schulphilosophie, as the object of a disenchanting historiography and as a target for educational reform. the history of philosophy Christian Thomasius was not an independent historian of philosophy in the manner of his father Jacob (1622–84) or in that of his own contemporaries, Gottfried Arnold (1666–1714) and the great Huguenot historian Isaac de Beausobre (1659–1738), each of whom made major scholarly contributions to the historiography of philosophy in their efforts to show how its interaction with the Christian revelation had given rise to the great heresies.28 Thomasius, rather, was an aggressive exponent of this new historiography, putting it to work for associated purposes in a variety of academic genres: forewords and prefaces to a variety of works, philosophical primers, pugnacious jurisprudential disputations on heresy and witchcraft, and works dedicated to reforming the Lutheran philosophy curriculum and advising his law students how best to negotiate it.29 He

27

28

29

Thomasius, Hof-Philosophie, pp. 51–2. On the movement of eclectic philosophy and Thomasius’s place in it, see Horst Dreitzel, ‘Zur Entwicklung und Eigenart der “Eklektischen Philosophie”’, Zeitschrift für Historische Forschung 18 (1991), 281–343. On this genre, see John Christian Laursen (ed.), Histories of Heresy in Early Modern Europe: For, Against, and Beyond Persecution and Toleration (Houndmills: Palgrave-Macmillan, 2002). For a rare and helpful discussion of Thomasius’s use of the new historiography of philosophy, see Sicco Lehmann-Brauns, Weisheit in der Weltgeschichte: Philosophiegeschichte zwischen Barok und Aufklärung (Tübingen: Niemeyer, 2004), pp. 308–54.

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did not write his own monograph in the new historiographic genre, unless one wants to count his Historia contentionis inter imperium et sacerdotium. This is perhaps better seen, though, as a text that puts this history of philosophy to work as part of an intellectual history of the long struggle between the Empire and the papacy, and between papalists and conciliarists.30 Our task is thus to show how Thomasius used the historiography of philosophy as a key weapon in his multifaceted campaign against Lutheran Schulphilosophie, in a manner that strengthened and sharpened his arguments without plumbing the intellectual depths reached by the masters of the discipline. Thomasius relied on this historiography of philosophy throughout his career and across the range of his writings, but his two most signiﬁcant formulations of it are to be found in the Hof-Philosophie of 1688 and the Cautelen zur Erlernung der Rechtsgelehrtheit (Precautions for the Study of Jurisprudence) of 1713.31 Mention should also be made of the history of natural law that he contributed as a foreword to the ﬁrst German translation of Grotius’s Right of War and Peace of 1707, where the history is extrapolated into the modern period.32 Despite the title, the Hof-Philosophie is an introduction to philosophy for law students – those destined for service in the court bureaucracies that administered the early modern princely state – while the Cautelen is quite true to its title: a manual of advice for law students on how to study ‘philosophy and the liberal arts’ in preparation for the higher study of law. ‘Philosophy’ appears in two different forms in both of these works: as the topic of methodological reﬂections pertaining to its reform, to which we will return in the following section; and as the object of a ‘history of philosophical sects’ which is our present concern. In the Cautelen, Thomasius argues that the object of jurisprudence is to show the means of preserving external political peace, or of restoring it once it is broken, to which end it explicates divine and human law.33 Philosophy and the liberal arts have an instrumental role in preparing students for the study of law, and, in studying philosophy, students must avoid two extremes. On the one hand, they should beware of neglecting it as it 30 31

32

33

Christian Thomasius, Historia contentionis inter imperium et sacerdotium (Halle, 1722). Christian Thomasius, Cautelen zur Erlernung der Rechtsgelehrtheit (Halle, 1713; repr. Hildesheim: Georg Olms, 2006). For a modern edition, see Christian Thomasius, ‘Von der Historie des Rechts der Natur bis auf Grotium’, in W. Schätzel (ed.), De Jure Belli ac Pacis (Drei Bücher vom Recht des Krieges und des Friedens) (Tübingen: J. C. B. Mohr, 1950), pp. 1–28. Now in English as ‘On the History of Natural Law until Grotius’, in Ian Hunter, Thomas Ahnert and Frank Grunert (eds. and trans.), Christian Thomasius: Essays on Church, State, and Politics (Indianapolis: Liberty Fund, 2007), pp. 1–48. Thomasius, Cautelen, pp. 66–8.

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contains many arts essential for jurisprudence. On the other hand, they must take care not to become involved in speculative forms of philosophy whose elevation of the intellect above care of the self and care for civil order is actually a ‘papalist blow against the state’. Contempt for philosophy has arisen ‘because jurists have regarded the philosophy that dominates the universities as a monk’s wisdom, of little use to a wise jurist’. This means that ‘a student of law must be able to recognise in advance not only the kind of philosophy [Welt-Weisheit] beneﬁcial to a jurist, but also how to guard against the false philosophy and to distinguish it from the true’.34 False philosophy is of course sectarian Schulphilosophie, the style of philosophy whose mixing of theology and philosophy in purported knowledge of transcendent truths inspires uncompromising and intolerant adherence. The law student should thus study the history of the philosophical sects, ‘partly so that he can come to know the origin of today’s sects, and partly so that he can ensure that he will not himself become a sectarian’.35 The two reasons are connected by the fact that treating the philosophical sects historically leads to a detached and relativistic view of them. In providing his students with a characterisation of the central doctrines of ‘all or most of the sects with a predilection for false wisdom’, Thomasius makes use of a list ﬁrst used in the Institutiones jurisprudentiae divinae of 1688, then in the Grundlehren of 1699, and presented in the Cautelen of 1713 thus: These doctrines are: (1) that God and matter were two co-eternal principles; (2) that God’s nature consists in speculation and thought; (3) that the nature of spirits consists in thought; (4) that the nature of man consists in reason [Verstand ] and that on its perfection depends the happiness of the whole human race; (5) that man is a single species and that what is good for one [person] is good for another; (6) that the human will is improved through the reason; (7) and that in this way – that is, through the improvement of thought – it is very easy to attain wisdom and virtue.36

In the accompanying note, Thomasius comments that the ﬁrst doctrine was common to all pagan sects, as shown in his father’s Originae Historia philosophica et ecclesiastica – Thomasius’s re-edited and re-titled version of Jacob Thomasius’s Schediasma historicum of 1665 – while the others

34 36

Ibid., p. 70. 35 Ibid., p. 108. Ibid., p. 113. The Grundlehren version contains a stronger statement of the ﬁnal doctrine, simply listing as false the claim ‘that it is within man’s ability to live virtuously and happily’. See Christian Thomasius, Summarischer Entwurf der Grundlehren, die einem Studioso Juris zu wissen und auf Universitäten zu lernen nötig sind (Halle: 1699), p. 48.

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remain common to all of today’s Christian philosophical sects, even though these doctrines are pagan. In fact the son’s list is little more than a potted summary of some of the father’s central arguments. In the Schediasma, Jacob Thomasius’s prime concern was to show how all of the Christian heresies – and in fact a good deal of Christian theology – arose from the penetration of Greek philosophical theology into Jewish and Christian revealed doctrine.37 Carried into holy lands by Greek and Roman conquerors, the Aristotelian and Platonic conceptions of a God who creates the universe by intelligising its ‘meanings’ – Aristotle’s substantial forms and Plato’s ideas or intelligible forms – were merged with the Christian conception of God who wills the universe into existence ex nihilo. The fact that Greek philosophical theology requires something apart from God to which the divine mind brings shaping intellection – Aristotelian prime matter, the ur-chaos of Plato’s Timaeus – is fundamentally at odds with the Christian doctrine of ex nihilo creation and gives rise to the two fundamental forms of Christian heresy: dualism and monistic pantheism.38 Dualism is the mark of all theology and philosophy that accepts the co-eternity of God and matter and uses this to explain the origin of evil or to radically separate matter and spirit, something that Jacob Thomasius traces to the Zoroastrians and that his son ascribes to the Cartesians. The Schediasma, though, is focused on the various Christian philosophical and theological attempts to overcome this dualism. These attempts in fact constitute the history of metaphysics, which the Schediasma treats as arising from accommodationist attempts to reconcile the pagan theologies and theogonies with Christian ones, through the fundamental doctrine that God is ‘being’.39 This doctrine has been elaborated in a Platonic way, via the conception of God as a divine mind eternally emanating the intelligible creatures including man qua intellectual being, which is a cosmology fundamentally at odds with the Christian conception of the world as a ﬁnite entity created in time. From Platonic natural theology arose many patristic heresies together with the scholastic ones associated with Johann Scotus Eriugena and Amalric of Bena but also the Cambridge Platonists, all such doctrines being unable to distinguish creation from creator. The metaphysical doctrine that God is being has also been elaborated in a materialist way, however, whereby God is envisaged unfolding himself as the material substance of the universe from which he cannot be distinguished. This Stoic 37 38

See Häfner, ‘Jacob Thomasius und die Geschichte der Häresien’, to which I am much indebted. Jacob Thomasius, Schediasma historicum (Leipzig, 1665), pp. 28–9. 39 Ibid., pp. 59–61.

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metaphysics is tacitly ascribed to Spinoza by Jacob Thomasius and explicitly so by his son. Jacob’s argument that an accommodationist metaphysics produced the twin heresies of an enthusiast pneumatology and an atheistmaterialist pantheism made a profound impression on Christian, who made it central to his history of the philosophical sects, even after he had ceased thinking of these doctrines as heresies and regarded them merely as ‘folly’.40 The history of sectarian philosophy that Christian Thomasius sketches in the Hof-Philosophie sticks closely to the path mapped by his father, but now given a more radical orientation and aggressively contemporary application. This historiography had already begun the process of historicising and relativising the distinction between orthodoxy and heresy. Now the younger Thomasius used it to provide a genealogy of the struggle between the metaphysical ‘Christian philosophy’ that surrounded him at Leipzig and the anti-scholastic civil philosophy of Grotius, Hobbes and Pufendorf.41 Following closely in his father’s footsteps, Thomasius characterises pagan philosophy in terms of its erroneous treatment of God and the world, and good and evil, as coeval principles.42 Not only does this dualistic doctrine mark pagan philosophy’s difference from Christian monotheism, it also indicates the original miscegenation of theology and philosophy – specifically, the emergence of Aristotelian and Platonic metaphysics to reconcile the dualisms – whose offspring was ‘sectarian philosophy’. It is as a result of this mixing that articles of metaphysical faith – doctrines regarding the transcendent substances and forms as the a priori principles of nature and the temporal world – are taught as if they were objects of knowledge. Demonstrating his increasingly historicised and relativised view of heresy and orthodoxy, in the Cautelen Thomasius argues that the papalist church propagated these doctrines by requiring their acceptance whether they were understood or not, and by persecuting those who dissented from them as heretics.43 By this stage, the focus of Thomasius’s history has shifted from the origins of heresy to the origins of the theologians and clergy who hereticate. Not only is the subtle philosophical elaboration of Christian faith thus unnecessary for living a Christian life, but it represents the clericalist arrogation of saving truth. This gave rise to the intellectual authoritarianism, discipleship and intolerance of other philosophies that is 40

41

42

See Häfner, ‘Jacob Thomasius und die Geschichte der Häresien’, pp. 162–4; and Lehmann-Brauns, Weisheit in der Weltgeschichte, pp. 332–6. In this regard, the Hof-Philosophie belongs to the anti-scholastic ‘histories of morality’ whose apologetic role is clariﬁed in T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000), pp. 125–8. Thomasius, Hof-Philosophie, pp. 61–2. 43 Thomasius, Cautelen, pp. 114–15.

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characteristic of the various philosophical sects. Aristotelian scholasticism and neo-Platonic metaphysics are the prime instances of this philosophical sectarianism, but Cartesianism provides a more recent example, as it too uses metaphysical principles to explicate Christian faith.44 The scale of the assault on metaphysics that Thomasius launches on the basis of this history becomes clear in the chapter of the Cautelen dealing with ‘Precautions for the Study of Metaphysics’. Here Thomasius focuses on a late development in the long hybridisation of pagan philosophy and Christian revelation, the appearance of a ‘natural theology’ in the form of the new discipline of pneumatology. This theory of spiritual or intellectual being – which claims to provide theoretical knowledge of God, the angels and separated human souls – must be treated with the greatest circumspection by law students, if they are to guard themselves against an enthusiast and superstitious discipline tied to a strife-seeking and hereticating scholastic theology.45 Thomasius’s prime focus here is on the Platonic end of the metaphysics spectrum, as he argues that pneumatology is based on the idea that God or spirit is an immaterial intellectual substance that intelligises the forms of all creatures, including man.46 Man is thus constituted through the spiritual substance or intellect that he is supposed to share with God, and through which it is imagined he can rise to ‘participate’ in divine intellection. This holds out the vain promise that man’s will might be regenerated without divine mediation, deluding him into thinking that he can govern his earthly conduct without political or juridical coercion. In exemplifying the harmful doctrines supported by this natural theology – all of them instances of the attempt to impose articles of metaphysical faith as if they were objects of natural knowledge – the chapter on metaphysics forays widely and aggressively into the theology, angelology and pneumatology of Lutheran scholasticism. It is signiﬁcant that in the body of the text Thomasius deals with these topics didactically, in the form of a series of succinct numbered paragraphs, addressed as advice to his law students. The more scholarly exempliﬁcation and commentary takes place in a chain of long footnotes, presumably for the use of the more dedicated students. In warning his students against claims that it is possible to provide a natural theological theory of God’s nature, Thomasius targets the standard metaphysical idea of God. This is the conception of God as inﬁnite, simple, immaterial substance who knows things through intellectual intuition – that is, through a mode of intellection that creates the 44 46

Thomasius, Hof-Philosophie, pp. 42–3. Ibid., pp. 263–4.

45

Thomasius, Cautelen, pp. 260–1.

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intelligible form of things – and that therefore explains God’s omnipresence.47 We have already noted that this conception played a key role in formulating the Lutheran ‘ubiquity’ doctrine in the Formula of Concord.48 In rejecting it Thomasius focuses on the degree to which it outstrips the limits of human reason and treats matters of faith as if they were matters of knowledge. Working backward from experiences to their causes, natural reason can only tell us that God is the ﬁrst cause by which a ﬁnite temporal world was brought forth. The other attributes of God that we ﬁnd in the Bible – that he is omnipotent, omnipresent, omniscient – should not be treated as objects of knowledge, but simply as ways of honouring a being whose nature lies beyond human understanding. Thomasius’s attack on the metaphysical conception of holiness – as a puriﬁcation of the will achieved through man’s participation in divine reason – forms part of his rejection of the doctrine that God and man share in a common intellectual being, but focuses on the clericalist powerplay driving this conception.49 Warning his students that holiness understood in this way leads ‘either to an irrational superstition such as the monks have, or to enthusiasm’, he continues: It leads to an unreasoning superstition and monkishness partly because the scholastics have made holiness into an idol about whose meaning no-one knows anything except for them alone, so that they can explain this at any time as it suits them, and use it as a means for directing the conduct of people at their discretion. … It leads to enthusiasm or Platonism because they represent holiness as union with God or as the way to attain such union.50

In a note to these passages, Thomasius explains to his students that he is referring in particular to those – his old enemies Alberti, Roth and Carpzov! – who purport to derive natural law from a reason that agrees with divine holiness, as if from God’s eternal law, and thereby dominate the laity. This ‘monks’ doctrine’ actually runs counter to social peace, as it teaches that the holy should have no society with impure or worldly people. Thomasius reminds his students that he exposed this ‘groundless and deceptive doctrine’ in his Institutiones jurisprudentia divinae, where 47 48

49

50

Ibid., pp. 276–7, esp. note. (o). This was the theory of God outlined in such standard works of Concordial Schulmetaphysik as Christoph Scheibler’s Opus metaphysicum, duobus libris universum hujus scientiae systema comprehendens (Giessen, 1617). Despite Thomasius’s best efforts, the metaphysical conception of holiness was not driven from philosophy, reappearing with new vigour in Kant’s conceptions of the ‘holy will’ and the ‘good will’. Thomasius, Cautelen, pp. 278–80, esp. note (r).

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he shows how lay jurists can and should derive natural law from God’s will – not his intellect – in part as this will is revealed in the Bible and in part as man deduces it in terms of the rules required for worldly sociability. Thomasius gives short shrift to angelology, a natural theology that he argues derives from a mix of Jewish Cabbalistic and Greek sources, and is elaborated by the scholastics in the form of angelic hierarchies whose true role is to defend the spiritual dominance of the clerisy and the papacy over the laity.51 It is true that angels are mentioned in the Bible, yet law students must treat such references with great care, as they are revelations that lie beyond human forms of truth and probability. That the scholastics should have applied metaphysics to such passages has given rise to such ridiculous speculations as how angels – as non-corporeal intellectual beings – might speak. Far more serious for law students is the fact that through similar speculations – regarding the way in which immaterial spiritual beings can occupy or ‘possess’ corporeal human beings – scholastic pneumatology has given theoretical credibility to beliefs in witchcraft and diabolical possession.52 This has brought great tumult to states, not least because jurists have shamefully succumbed to such speculations. In the accompanying note, Thomasius refers his students to his 1701 jurisprudential disputation, De crimine magiae (On the Crime of Sorcery) where these arguments are given in full.53 This again shows how directly Thomasius’s interventions in the teaching of philosophy were driven by his campaign to dismantle the infrastructure of the confessional state by transforming the religious and political comportment of its future ofﬁcials. As with heresy, the historicisation of the metaphysical doctrines underpinning witchcraft allows Thomasius to transfer it from the theological into the juridical realm, whose goal of maintaining ‘external’ social peace makes it possible to abrogate ‘internal’ moral crimes. At the same time, he will not deny the 51 52

53

Ibid., pp. 282–3, esp. note (a). For his old enemy Alberti’s contribution to this genre, see Valentin Alberti (praes.) and Christian Stridtbekh (resp.), De sagis, sive foeminis, commercium cum malo spiritu habentibus (Leipzig, 1690). This disputation argues the usefulness of the metaphysics of spiritual and corporeal substance in explaining how women can be possessed by evil spirits – shown by their sudden mastery of several foreign languages – and have intercourse with the devil. Alberti styles the arguments as ‘taken from Christian pneumatology’. Thomasius, Cautelen, p. 284, esp. notes (d) and (e). See Christian Thomasius, De crimine magiae (Halle, 1701). In German as Kurtze Lehr-Sätze von dem Laster der Zauberey (Halle, 1704). Now in English as ‘On the Crime of Sorcery’, in Hunter, Ahnert and Grunert (eds. and trans.), Christian Thomasius: Essays on Church, State, and Politics, pp. 207–54.

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existence of ‘intermediate spirits’ between God and the human soul, because to do so would be to follow the Cartesians and ‘occasionalists’ in treating human movement as the product of immediate divine causation.54 Thomasius acknowledges that Balthasar Bekker has used the Cartesian doctrine as a means of excluding the devil from the world – as unextended spirit cannot inhabit extended matter – and thereby repudiated witchcraft prosecutions. Yet he cannot unequivocally recommend Bekker’s De betoverde Wereld (The World Bewitched) to ‘young students’, presumably because the occasionalist consequences of Cartesianism entails accepting another metaphysics in which God is all but equated with his creation.55 In fact Thomasius’s remarks on Bekker are a pointer to an important but obscure feature of the history of metaphysics given in the Cautelen. This history is shadowed throughout by a doctrine of ‘intermediate spirits’, drawn from Thomasius’s Versuch vom Wesen des Geistes (Essay on the Nature of Spirits) of 1699, which is as close as he comes to offering an alternative positive philosophical doctrine to those of his metaphysical rivals.56 Given that it draws on hermetic and neo-Platonic sources, making at least partially favourable mention of such early modern alchemical neoPlatonists as Robert Fludd and Franciscus van Helmont, Thomasius’s doctrine of spirits has proved difﬁcult to elucidate. This is not least because it is surrounded on all sides by his exemplary enlightenment disputations against heresy and witchcraft prosecutions and in favour of religious toleration. Some commentators have thus seen the Versuch as framed by an epochal clash between the metaphysically ordered cosmos of Aristotelian scholasticism and a Cartesian mechanism that banished spiritual mediation from the universe, leading to Thomasius’s anti-Cartesian attempt to restore such mediation through his intermediate spirits.57 Thomasius, though, did not regard the conﬂict between scholastic metaphysics and Cartesian mechanism as fundamental or epochal. In fact, he treated the two systems as variant products of the confusion of theology and philosophy, providing optional metaphysical cosmologies – one treating God as intelligising the creatures, the other treating him as spiritual substance 54 55

56

57

Thomasius, Cautelen, p. 284, and note (f ). For Thomasius’s ambivalent attitude to Bekker’s work, see Thomasius, ‘On the Crime of Sorcery’, pp. 211–13, 216–18. Christian Thomasius, Versuch vom Wesen des Geistes (Halle, 1699; repr. Hildesheim, Georg Olms, 2004). See Kay Zenker, ‘Vorwort’ to the 2004 reprint of the Versuch vom Wesen des Geistes, pp. v–xlviii, at xxi–xxvi.

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causally informing material substance – neither of which offered a space of mediation between God and the world. Other commentators have seen Thomasius’s spirit doctrine as symptomatic of his pietistic recoil from the rationalism of scholastic metaphysics, driven by his need to harmonise Christian grace and rational knowledge. It is suggested that he does this via conception of spirit understood as the intelligible and intelligising soul through which man participates in the divine mind and ﬁnds grace.58 This interpretation ﬁnds little to justify it, however, not least because Thomasius goes out of his way to deny that spirit should be identiﬁed with thought, as part of his larger attempt to demolish the Platonist ‘enthusiasm’ that sees man participating in the divine intelligising of things.59 It is fundamental to Thomasius’s doctrine that spirit is neither regarded as immaterial substance nor identiﬁed with the activity of intelligising. Rather than being distinguished as immaterial and material, spirit and body are differentiated along the axes of the active and passive, and the invisible and visible. Spirits are thus an active and invisible part of the corporeal world. The key spirits – light and air – act by warming and cooling matter, rather than by determining the meaning of the world in the manner of the intelligibles.60 It is their worldly presence and activity that permit the spirits to mediate between the world and God, who is also spirit but is not directly present in the world. This is Thomasius’s way of avoiding the metaphysical conception of spirit as intelligible or immaterial substance, which separates spirit from matter as two opposed (co-eternal) principles and gives rise to the various pantheistic reconciliations of the principles. Of course this doctrine of active worldly spirits appears premodern to our eyes, yet there is no reason to treat it as any more implausible or fantasmatic than the Lutheran metaphysics of immaterial substances which showed how demons could possess humans, or the Cartesian division of the world into thinking and extended substance which (as Thomasius thought) required God to produce material actions. In fact, by denying that the God of salvation was immediately present in the world as the principle of its intelligibility, Thomasius’s doctrine effected a double and (to our eyes) ambivalent restructuring of Lutheran

58

59 60

Wilhelm Schmidt-Biggemann, ‘Pietismus, Platonismus und Aufklärung: Christian Thomasius’ Versuch von Wesen des Geistes’, in F. Grunert and F. Vollhardt (eds.), Aufklärung als praktische Philosophie: Werner Schneiders zum 65. Geburtstag (Tübingen: Max Niemeyer, 1998), pp. 83–98, at pp. 88–9. See Thomasius, Cautelen, pp. 263–4. Ibid., pp. 263–7, esp. notes (h), (i), (r), (t) and (u).

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academic culture. On the one hand, it stationed the God of salvation ﬁrmly in the domain of revelation and faith, removing him entirely from the natural theologies that had claimed to know him through the philosophy of being. On the other hand, by allowing God to act through intermediate spirits that are themselves part of the world, Thomasius’s cosmology is open to an experimental approach to natural philosophical knowledge, precisely because worldly phenomena are no longer treated as manifestations of transcendent concepts. In his discussion of physics, Thomasius thus commends the experimental discovery of the compass and attacks all abstract and systemic attempts to explain its operation, whether via scholastic ‘occult qualities’ or the Cartesian pursuit of hidden ‘magnetic particles’ in the context of the corpuscular system.61 Needless to say, Thomasius’s doctrine of spirits was not the intellectual harbinger of modern experimental science, no more than was Lutheran Schulmetaphysik or Cartesian metaphysics. It was, rather, an intellectual holding operation that showed how the world could be purged of transcendent essences and entities, making it available for detranscendentalised forms of knowledge. Thomasius’s driving concern, of course, was to elaborate this fundamental change of perspective for the civil rather than the natural world, as is shown quite remarkably in the discussion of atheism that concludes the Cautelen’s chapter on metaphysics. Once the God of salvation has been reconstituted as an object of faith and revelation, then he is sequestered from the civil domain, and cannot be used as the intellectual source of transcendent norms (holiness) for the ordering of this realm, as is attempted in ‘Christian natural law’. The ordering norms for civil society must therefore be derived ‘historically’, through observation of what is needed to provide security to man as a weak and strife-prone creature who is incapable of governing himself through reason, and it is the role of jurisprudence to elaborate these norms as laws. This is what allows Thomasius to historicise and relativise orthodoxy and heresy, as in the detranscendentalised civil domain these can only be political matters – allegations arising from struggles between rival religious factions – having no bearing on salvation. It also permits him to distinguish ‘theoretical atheism’ – centrally Spinozism – from heresy. In an audacious move, Thomasius argues that theoretical atheism – the acceptance of speculative doctrines entailing that God does not exist or is inseparable from the world – does not belong to the power-plays of rival religious factions that

61

Ibid., pp. 319–21.

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produce heresy allegations and arises instead from the cultivation of natural theology itself.62 It is by attempting to constitute the God of revelation and salvation as an object of philosophical knowledge that natural theology gives rise to atheism, for this leads to the unmediated identiﬁcation of God with ‘being’. This is the source not only of Spinoza’s materialist atheism but also of the various immaterialist emanationist and pantheistic forms of Christian metaphysics.63 In a remarkable overturning of the orthodox Lutheran position, Thomasius then proceeds to argue that scholastic theologians should not attempt to persecute or hereticate theoretical atheists, Spinozists in particular.64 This is in part because the scholastics too are natural theologians who purport to constitute God as an object of speculative knowledge and thereby locate him immediately in the world, albeit in emanationist and intellectualist doctrines rather than via metaphysical materialism. Above all, though, once the history of metaphysics has permitted us to separate God as an object of faith from civil society as an object of empirical knowledge, thereby destroying political metaphysics, it becomes possible to separate the question of salvation and damnation from the ordering of civil society. This allows Thomasius to tentatively raise the prospect of tolerating atheists: ‘I will not here discuss whether atheists should be tolerated in the state, as this question demands a more exact consideration … Yet I cannot say that the Dutch acted imprudently when they tolerated Spinoza.’65 The Spinoza case then permits him to display his new ordering of the ﬁeld: Although in the sight of God an atheist is subject to eternal punishment, yet in the sight of man, if he does nothing more than speculate and otherwise leads a good life, like Spinoza, then one should feel appropriate compassion for him; for through the teaching of false wisdom it has come about that he was ﬁrst led to seek God from good intentions, and then to indulge his understanding all too far, thinking ever higher through it, until ﬁnally through his confused researching and seeking he quite lost God.66

The scholastics are therefore shamefully wrong in justifying the civil punishment of theoretical atheists on the basis of natural laws derived from divine reason, as the proper relation of religion to civil society is not based on unifying metaphysical reason. It is based, rather, on the gap that 62 64

65

Ibid., pp. 291–3, esp. notes (t) and (y). 63 Ibid., p. 296, note (c). For more on this, see Walter Sparn, ‘Formalis Atheus? Die Krise der protestantischen Orthodoxie, gespiegelt in ihrer Auseinandersetzung mit Spinoza’, in K. Gründer and W. Schmidt-Biggemann (eds.), Spinoza in der Frühzeit seiner Religiösen Wirkung (Heidelberg: Lambert Schneider, 1984), pp. 27–64. Thomasius, Cautelen, p. 294, note (z). 66 Ibid., p. 295, note (a).

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the abandonment of metaphysics opens between God as the object of saving faith and social peace as the object of civil and juridical power, which means that atheists may not be subject to civil sanctions. In opening this gap, it becomes possible for Thomasius to argue that atheists can fulﬁl all their civil duties – hence be good citizens – without believing in God, much as Pierre Bayle had argued in his Various Thoughts on the Occasion of a Comet, in 1682.67 On this account, however, if philosophical reason should not be used to unify religion and civil order, then neither can it be used to separate them. The sting in the tail of Thomasius’s position is thus that it simultaneously undermines Spinoza’s own attempt to justify religious freedom as intellectual freedom, via his doctrine of man as an ontologically free being whose rational desires the state exists to maximise and protect.68 This doctrine too fails to sequester the civil order from metaphysics, which can only be achieved if civil authority is restricted to ‘external’ social peace, renouncing all higher purposes, including ontological freedom. Thomasius’s destruction of natural theology would thus also entail the suspension of rationalist defences of intellectual and religious freedom and rights, thereby initiating a quite distinct path into the secularised state, as we shall see in Chapter 5.

the reform of philosophy and the philosopher Thomasius’s historiography of philosophy is linked to his programme of philosophical reform in a quite particular way. This takes place through the manner in which the historiography ties the holding of philosophical doctrines to the comportment of the philosophical personage who holds them.69 It has been argued that while philosophical discourse and the 67

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See Pierre Bayle, Various Thoughts on the Occasion of a Comet, trans. R. C. Bartlett (New York: SUNY Press, 2000, orig. 1682), paras. 133–43, pp. 165–228. Thomasius was aware of Bayle’s discussion and shared his view that conduct is not determined by theoretical doctrine but by the character of the will. On the relation between Thomasius and Bayle, see Herbert Jaumann, ‘Frühe Aufklärung als historische Kritik: Pierre Bayle und Christian Thomasius’, in S. Neumeister (ed.), Frühe Aufklärung (Munich: Wilhelm Fink, 1994), pp. 149–70; and Sandra Pott, ‘“Le Bayle de l'Allemagne”: Christian Thomasius und der europäische Refuge. Konfessionstoleranz in der wechselseitigen Rezeption für ein kritisches Bewahren der Tradition(en)’, in M. Beetz and H. Jaumann (eds.), Thomasius im literarischen Feld: Neue Beiträge zur Erforschung seines Werkes im historischen Kontext (Tübingen: Max Niemeyer, 2003), pp. 131–58. See Benedict de Spinoza, A Theologico-Political Treatise and A Political Treatise, trans. R. H. M. Elwes (New York: Dover 1883/1951), ch. 20. For more on this, see Condren, Gaukroger and Hunter (eds.), The Philosopher in Early Modern Europe.

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philosophical way of life were bound tightly together in the Hellenistic schools, the rise of Christianity, with its monopolisation of the right way to live, led to the appearance of a philosophy that was theoretical, methoddriven and disconnected from the personal life of the philosopher.70 This modern historiography of philosophy of course inverts the one that Thomasius learned from his father. Here, early Christianity is thoroughly penetrated by Greek philosophy, giving rise to a modern philosophy – various forms of metaphysics – in which doctrine is deeply and problematically tied to personal comportment and way of life. In the Thomasius historiography, it is theoretical philosophy that gives rise to Christian theology, rather than the other way around. Thomasius’s historical conception of ‘sectarian philosophy’ is designed to show that in presenting various articles of metaphysical faith – Aristotelian substances and essences, Platonic forms and intelligibles, God as a divine mind intelligising the meaningful forms of the world – as if they were objects of knowledge, scholasticism has given birth to an absolutist and exclusivist way of adhering to philosophical and theological doctrines, as if salvation itself depends on them. Far from indicating the separation of doctrine and way of life, by presenting matters of faith as accessible to speculative insight, theoretical philosophy gives rise to two highly problematic ways of philosophical life: orthodox scholastic metaphysical theology and its shadow, esoteric philosophical theology.71 Scholastic orthodoxy is characterised by the authoritarian comportment of its exponents, resulting from the way it imposes and enforces philosophical explications of Christian faith as if salvation depends on them. For its part, neo-Platonic esoteric theology is marked by the ‘enthusiasm’ of its adepts, who adhere to it with fanatical intensity as a result of the delusional belief that they are participating in God’s intelligising of the pure forms of things. In commenting on these two key forms of ‘sectarian philosophy’ Thomasius remarks that: Both elevated the powers of the human soul much too high: the orthodox elevated the understanding, the esoterics the freedom of the will. Both thus abused the natural light. The orthodox did so by overstepping the boundaries of reason, using its powers to fathom matters that God did not deem necessary to 70

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Pierre Hadot, What is Ancient Philosophy?, trans. M. Chase (Cambridge, Mass.: Harvard University Press, 2002), ch. 10. For a concise formulation of Thomasius’s construction of this pair, see Christian Thomasius, ‘Von der Historie des Rechts der Natur bis auf Grotium’, in W. Schätzel (ed.), De Jure Belli ac Pacis (Drei Bücher vom Recht des Krieges und des Friedens) (Tübingen: J. C. B. Mohr, 1950), pp. 1–28. English translation: ‘On the History of Natural Law until Grotius’, in Hunter, Ahnert and Grunert (eds. and trans.), Christian Thomasius: Essays on Church, State, and Politics, at pp. 16–22.

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reveal, and thereby egregiously neglecting the will and its improvement. The esoterics, on the other hand, made the powers of the will greater than they are, and belittled the light of reason too much. Both scolded the pagans and pagan philosophy, and yet both originated in pagan wisdom and its students. The orthodox originated in rareﬁed Platonic disputations about the divine being, while the esoterics originated from the Platonic doctrines on the goal of true wisdom, namely, union with God through the path of puriﬁcation and illumination. Thus everything led either to vain speculation or to enthusiasm, and simple, active Christianity was forgotten.72

On this view, the ur-mixing of theology and philosophy, faith and knowledge produces a particular nexus between philosophical doctrine and the comportment of the philosopher. The philosophical elaboration of doctrines of transcendent entities and essences calls forth the image of the philosopher as a personage possessing the spiritually qualiﬁed intellect required for insight into such entities. At the same time, were it not for the existence of a special personage who comports himself in this speculative or ‘enthusiast’ way, as the subject of such an insight, then these transcendentalist doctrines would ﬁnd no anchorage in reality. It is this reciprocal relation between transcendent philosophical doctrine and an intellectualist or enthusiast philosophical persona that Thomasius locates at the centre of the ‘papalist’ or confessional university curriculum, and that accounts for the depth and scope of his reform agenda. We have already noted the way in which this critique operates with regard to the discipline of metaphysics, where Thomasius’s treatment of the metaphysical conception of holiness provides a particular focus. In conceiving of holiness in terms of the conformation of the human will to a ‘pure’ or transcendent divine law, metaphysics cultivates a philosophical personage who purports to purify his intellect of all worldly attachments in order to participate in a holy moral law. In adopting this comportment or persona, the metaphysician places himself above the ‘impure’ members of civil society in a ‘monkish’, vainglorious and potentially destabilising manner.73 In his discussion of logic, one of Thomasius’s key examples is the emergence of Lutheran metaphysical logics, bearing the names Gnostology and Noology. These were developed in the central Concordial Lutheran universities, in particular by the Wittenberg scholastics Georg Gutke, Georg Meier and Abraham Calov, author of the Gnostologia.74

72 73 74

Thomasius, ‘On the History of Natural Law until Grotius’, p. 20. Thomasius, Cautelen, pp. 278–80. Abraham Calov, Gnostologia (Königsberg, 1632–33).

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According to Thomasius, in treating logical concepts as if they were essences of things, and thereby claiming knowledge of substances, genus, species, bodies and spirits, these forms of logic overstep the limits of human understanding and give rise to a philosophical comportment at odds with the detached and moderately sceptical one required to use logic as a discovery procedure: ‘Thus [these disciplines] do nothing more than ﬁll the understanding with useless subtleties, yet strengthen the will in its arrogance, vengefulness, and hostility towards dissenters. A student of law, though, should guard against these disciplines so much the more because the aforementioned author of the Gnostology [Calov] includes [law] among the mysteries of his teachings.’75 Thomasius makes similar remarks with regard to the metaphysical incursions into the disciplines of mathematics – the claim to know inﬁnity and thus outstrip the ﬁnitude of the sensorytemporal world – and physics, where it gives rise to claims to privileged insight into occult qualities, or else into hidden vortices and corpuscles underlying observable phenomena.76 Despite the empirical orientation of these ‘precautions’, Thomasius was not attempting to defend an empiricist theory of knowledge. He was engaged, rather, in a combative programme to reform the comportments through which philosophers stand in relation to knowledge – the theoretical or speculative comportment in particular – from which a certain kind of empirical stance would emerge as a by-product. This is made particularly clear in the chapter of the Cautelen outlining the precautions that law students should take with regard to theology. He begins this chapter in the autobiographical register – re-telling the story of his move from Lutheran Leipzig to the mixed-confessional university of Frankfurt where he learned to accept Calvinists as co-believers, read Pufendorf and so on – as he wants his students to see that the journey of faith is a personal one that everyone must make in their own way. At the same time, Thomasius’s treatment of Lutheran academic theology as an intolerant doctrinalised religiosity is deeply informed by his historiography of philosophy. This allows him to take the radical step of recording his ‘discovery’ that the central theological doctrines of Concordial Lutheranism – Christ’s ubiquity, and consubstantiation as his mode of presence in the Eucharistic host – are not to be found in the Bible and derive instead from scholastic philosophy. He thus warns his students that ‘as the source of theological controversies, one must deal with scholastic philosophy very carefully’, and declares that ‘even in the

75

Thomasius, Cautelen, pp. 202–3.

76

Ibid., pp. 246–7, and note (c); and pp. 319–21.

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Protestant universities scholastic theology and philosophy have not been sufﬁciently purged of the leaven of foolish doctrines’.77 Once again the holding of such doctrine is tied to the formation of a particular philosophical comportment, that of the scholastics and clergy who claim privileged philosophical knowledge of the Eucharist and, on this basis, exercise power by mediating it to the laity and hereticating all who dissent from their judgements. Law students will ﬁnd the best antidote to this arrogant and intolerant demeanour in the historiography of theology and the church – as exempliﬁed in the work of the Huguenot biblical scholar Jean Despagne and the Pietist church historian Gottfried Arnold – as here one discovers that rituals and doctrines treated as necessary for salvation are typically nothing more than the customs of particular historical cultures.78 The precondition for adopting this ‘empirical’ attitude to religion, however, is that his students have ﬁrst removed the divine being from the realm of human reason altogether, treating him as an object of revelation and faith in order to exclude his transcendent mind from the (now) empirical and historical world. In short, if Thomasius viewed Lutheran Schulphilosophie as the object of a wide-ranging programme of cultural reform, that is because he regarded the entire curriculum as pivoting on the nexus of dogmatic philosophical doctrines and the authoritarian or enthusiast intellectualism of the scholastic philosopher. It is for this reason that his reform of philosophy was aimed at philosophy in the broad sense of ‘philosophy and the liberal arts’. For the same reason, his objective was not to propose a new philosophy – in the sense of a new positive system that might rival Aristotelianism, Cartesianism or Spinozism – but to abolish the hybridising of philosophy and theology that brings such systems into existence. This entailed, though, the establishment of an intellectual culture with a reformed array of disciplines and a reformed comportment or persona for the intellectuals who would cultivate them. The focus for this dual reform process was the education of the law student, in part because the goal of law – the peace and calm of the civil state – displays the form of the detranscendentalised world most clearly, and in part because the corruption of civil law by metaphysical philosophy lies at the heart of the confessional state. The opening chapters of the Cautelen thus outline a new intellectual comportment or persona for the philosopher and the broad contours of the forms of knowledge open to such a persona. In the Foreword,

77

Ibid., pp. 497, 499.

78

Ibid., pp. 499–504, esp. notes (m), (n), (o), and (p).

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Thomasius records that his lectures on the Pandects and public and private law are open to all of his students, regardless of whether they are destined to become ofﬁcials, jurisconsults or jurisprudes. His discussions of ‘precautions’ regarding intellectual comportment, however, are reserved for his ‘private seminar’ – whose graduates will themselves become academic teachers of jurisprudence – where there is a more intimate relation between teacher and students.79 As the published Cautelen is the product of this seminar, we are again confronted by the pedagogical, programmatic and ‘regional’ character of Thomasius’s reform of philosophy. Thomasius focuses the reform of philosophy and the philosophical persona in his conception of Gelehrsamkeit – erudition or scholarship – understood as wisdom. Rather than identifying it with philosophy in the sense of systematic knowledge,80 Thomasius uses Gelehrsamkeit in tandem with wisdom to bring into focus a quite different matter: the manner in which the philosopher stands in relation to knowledge. Wisdom is ‘a living knowledge of that which is truly good’.81 Arguing against the intellectualism of both the scholastics and his Spinozist opponent Ehrenfried Walther von Tschirnhaus, Thomasius insists that knowledge and truth cannot be the object of wisdom and Gelehrsamkeit, as truths can be used for wicked ends.82 He thus rejects the metaphysical conception of knowledge and truth, according to which the true is also the good as through its intelligising man conforms his intellect to God’s. Truth, he argues to the contrary, is morally indifferent, and becomes good only when it is used to beneﬁt the human race. Far from stating a noble truth, the maxim that speculative knowledge is itself ‘to the Glory of God’ should be regarded as a covert ‘papalist blow against the state’, as it is designed to elevate the clerical claimants to such knowledge above the laity and their merely practical knowledge.83

79 80

81 82

83

Ibid., Vorrede, n.p. As Schneiders does in Hoffnung auf Vernunft, p. 113; also Helmut Holzhey, ‘Initiiert Thomasius einen neuen Philosophentypus?’ in W. Schneiders (ed.), Christian Thomasius 1655–1728: Interpretationen zu Werk und Wirkung mit einer Bibliographie der neueren Thomasius-Literatur (Hamburg: Felix Meiner, 1989), pp. 37–51, at p. 41. Cf., the discussion of this issue in Frank Grunert, ‘Die Pragmatisierung der Gelehrsamkeit. Zum Gelehrsamkeitskonzept von Christian Thomasius und im Thomasianismus’, in U. J. Schneider (ed.), Kultur der Kommunikation: Die europäische Gelehrtenrepublik im Zeitalter von Leibniz und Lessing (Wiesbaden: Harrassowitz, 2005), pp. 131–53. Thomasius, Cautelen, p. 1. On Thomasius’s attack on Tschirnhaus as a Spinozist, see Jean-Paul Wurtz, ‘Tschirnhaus und die Spinozmusbeschuldigung: Die Polemik mit Christian Thomasius’, Studia Leibnitiana 1981 (1981), 61–71. Thomasius, Cautelen, pp. 2–7.

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The prime object of Gelehrsamkeit and wisdom is thus not the intellect but the will. That which is truly good is a certain condition of the will: the inner peace and calming of the passions that permits the adoption of a detached and balanced demeanour through which man becomes happy. Knowledge of this good is ‘living’ only when it ceases to be speculative or theoretical and is informed by the desire to attain it.84 Speculative knowledge of this good will not make one happy, and the condition of individuals obtaining a living knowledge of it is that they must change their relation to themselves, initially by confessing their miserable condition: ‘Further, if we consider that, as the key part of living knowledge, the desire for the true good cannot exist without knowledge of one’s own miserable condition, then this [desire] cannot consist in such knowledge alone, as this has to do merely with the understanding; beyond this, though, regret is required for this miserable condition, and remorse.’85 In requiring his law students to acknowledge the degraded condition of their will – their incapacity to achieve rational self-governance of the ruling passions of ambition, greed and lust – Thomasius was in fact subjecting them to a particular (quasi-Epicurean) form of ethical self-problematisation. As we will see in more detail in Chapter 3, this may be regarded as a ‘spiritual exercise’ designed to wean them off the metaphysical conception of holiness and turn them towards an ethical practice of restraint of the passions.86 At the same time, this mode of self-problematisation also had a strongly epistemic dimension, as it requires the students to acknowledge that the damage done to their reason at the Fall precludes any kind of intellectual participation in divine thinking. It is indeed possible for man to acquire wisdom through prayer and the work of reﬂection on the ‘three books’ – of nature, conscience and the Bible. The condition of scientiﬁc reﬂection on the book of nature, however, is a fundamental acknowledgement of human ignorance, or the ‘limits of human understanding’.87 This applies especially to claimed knowledge of the transcendent essences and forms, but also to the knowledge of invisible vortices and corpuscles claimed by the Cartesians and atomists. Elsewhere, Thomasius argues that suspension of judgement regarding the transcendentals should be carried out not using the methods of modern Pyrrhonists like La Mothe-Le-Vayer, but using the Bible with its account of 84 86

87

Ibid., pp. 8–15. 85 Ibid., p. 22. For more, see Pierre Hadot, Philosophy as a Way of Life: Spiritual Exercises from Socrates to Foucault, trans. M. Chase (Oxford: Blackwell, 1995). Thomasius, Cautelen, pp. 45–7.

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the damage done to man’s faculties at the Fall.88 This is a pointer to the fact that, unlike Cartesian ‘epistemological doubt’, Thomasius’s scepticism was not designed to clear the mental deck in order to introduce new metaphysical principles of knowledge.89 Nor is Thomasius’s suspension of the transcendentals done in a proto-Kantian spirit, as if, while beyond human understanding, the essences (‘noumena’) remain an object of knowledge for a divine ‘intellectual intuition’. Such a strategy would maintain the image of man as an intelligence in a hierarchical intellectual ladder leading up to the divine intelligence, which was precisely the scholastic construction that Thomasius was seeking to dismantle. By adopting a quasi-Epicurean anthropology within a Christian framework – by insisting that postlapsarian man is the creature of his passions and will rather than his intellect and reason – Thomasius sought to break this theo-rational nexus, in a manner that was central to his reform of the discipline of natural law, as we shall see in Chapter 3. This ‘Christian Epicureanism’90 was Thomasius’s way of placing God beyond reason, as the object of private faith and revealed truth. It permitted God to be reciprocally sequestered from natural knowledge now understood as an empirical and fallibilist domain opened to man through the anti-intellectualist purging of his will and calming of his passions. Thomasius organises this new domain of knowledge around the twin poles of history and philosophy, which he calls ‘the two eyes of wisdom’. ‘History’, Thomasius says, ‘has to do with individual and particular givens which are absent and past.’ This indicates the early modern linkage between the notion of history and the notion of the empirical more generally, as the anti-rationalist rejection of a priori transcendentals meant that human knowledge occurs in time and through the sensory experience.91 For its part: ‘Philosophy provides the general observations through which we judge whether a thing is true and good.’ In order to distinguish

88

89

90

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Christian Thomasius, ‘In übernatürlichen Dingen, die wir nicht genau und deutlich begreiffen, ist es besser und löblicher sein Judicium zu suspendiren, als aus Affecten eine von zweyen einander wiederprechenden Meinungen behaupten wollen’, in C. Thomasius (ed.), Historie der Weißheit und Thorheit (Halle, 1693), pp. 146–56. For the contrast with Descartes’ ‘epistemological doubt’, see Stephen Gaukroger, Descartes: An Intellectual Biography (Oxford: Clarendon Press, 1995), pp. 309–21; and Catherine Wilson, Descartes’s Meditations: An Introduction (Cambridge: Cambridge University Press, 2003). The phrase comes from Horst Dreitzel, ‘Christliche Aufklärung durch fürstlichen Absolutismus. Thomasius und die Destruktion des frühneuzeitlichen Konfessionsstaates’, in Vollhardt (ed.), Christian Thomasius, pp. 17–50, at pp. 35–6. On this, see Arno Seifert, Cognitio Historica. Die Geschichte als Namengeberin der frühneuzeitlichen Empirie (Berlin: Duncker & Humblot, 1976).

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this philosophy from the scholastic kind, Thomasius remarks that its concepts are derived from experience and the senses. Both history and philosophy are thus based in empirical experience, yet are distinct in part because of their respective reliance on particular versus general observations, and in part because history relies on the (reported) experience of others, while philosophy relies on both our own and others’ experience.92 The two lights of the human understanding are reason and revelation, which give rise to the distinction between science (knowledge) and faith, although we must be careful not to confuse this distinction with that between science and probability. Both faith and probable knowledge are distinguished from science through their dependence on the (reported or revealed) experience of others, but the testimony that grounds a probabilistic knowledge like jurisprudence concerns natural things, while the testimony of faith concerns supernatural things.93 Thomasius thus views Gelehrsamkeit and wisdom as largely probabilistic, based on the testimony of others, and hence fallibilistic.94 Despite having distinguished between faith and probabilistic knowledge, he somewhat confusingly proceeds to discuss ‘philosophical, historical, juristic and theological faith’, although primarily in order to distinguish the last from those that precede it. Whereas theological faith is a matter of the heart and concerns a prudent belief in surpraprobable or supranatural things, philosophical and historical belief are matters of the understanding, the former concerned with general probable things, the latter with particular probable things. Juridical belief combines the philosophical and historical forms. History, though, has been shamefully neglected in the universities, largely because the professors are frightened that it will rob them of infallibility and allow their students to overtake them in erudition. In particular: ‘The philosophers advise against history, even though it is the pre-eminent part of the gallant sciences, out of fear that it might completely destroy the kingdom of darkness – that is, scholastic philosophy – which until now has been wrongly held to be a necessary instrument of theology.’95 It is on the basis of this historicised and fallibilistic approach to the academic disciplines – anchored in a ‘spiritual exercise’ that required students to separate inner faith in God from their collaborative participation in probabilistic knowledges – that Thomasius sketches his reform of Lutheran Schulphilosophie. For each of the disciplines discussed, Thomasius’s diagnosis of the malign nexus between transcendent knowledge and enthusiast 92 94

Thomasius, Cautelen, pp. 82–4. 93 Ibid., pp. 84–7. See Seifert, Cognitio Historica, pp. 150–62. 95 Thomasius, Cautelen, p. 92.

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intellectual comportment is matched by a dual recommendation for reform. The reform was designed to return knowledge to the probabilistic limits of human understanding, and to form a particular kind of intellectual persona. This would be one whose balancing of anti-rational inner faith in God and cool scepticism regarding the transcendent grounds of knowledge permitted him to keep understanding within these limits, without tipping over either into ﬁdeism or into scepticism. Without attempting to be exhaustive, we can brieﬂy note the effects of this reform on some of the main scholastic disciplines. In the case of the ur-form of ‘sectarian philosophy’, metaphysics, Thomasius’s double-edged reform strategy has the effect of dismantling the discipline entirely. Without the capacity to treat the mysteries of faith – Christian or Greek – as objects of philosophical knowledge, this discipline forfeits the conjugation of theology and philosophy that brought it and its dangerous persona (the philosophical theologian) into existence. In the case of the discipline of ethics, Thomasius advises his students that once they have renounced such vain enthusiast doctrines as the metaphysical conception of holiness – promising to redeem them through their intellectual selfconformation to the divine intellect – then they can focus on the only form of ethics that really matters. This is the one that begins with an existential acknowledgement of the miserable condition of their own will – of the overwhelming strength of the passions that makes a mockery of all calls to intellectual self-governance – thence to begin the task of moderating these passions by balancing them against each other, with a view to achieving that inner peace and calm that constitutes true happiness.96 In the case of logic, once his students have turned away from those metaphysical logics promising knowledge of transcendent entities through conceptual analysis alone, they can learn logics adapted to the use of reason in civil life. These would be arts of reasoning suited to arriving at probabilistic truths, and, for the jurists, hermeneutics and modes of argument suited to the fallible evidentiary bases of ‘juridical belief ’.97 Finally, in the case of jurisprudence itself, by acknowledging their complete ignorance of the divine mind and its intentions for humanity – except as these have been revealed in the Bible – law students could turn away from those forms of ‘Christian natural

96

97

This moral therapeutics is summarised in chapter 14 of the Cautelen, and given in full in Thomasius’s Ausübung der Sittenlehre (Halle, 1696; repr. Hildesheim: Georg Olms, 1999). Outlined in chapter 10 of the Cautelen and at length in Thomasius’s Einleitung zur Vernunftlehre (Halle, 1691; repr. Hildesheim: Georg Olms, 1998), and Ausübung der Vernunftlehre (Halle, 1691; repr. Hildesheim: Georg Olms, 1998).

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law’ in which theologians and theocratic jurists claim to derive natural law norms from their own participation in divine intellection. Instead, they can learn a form of natural law whose restriction to the domain of the rules required for a peaceful civil life aligns it with the positive laws of the princely state, and the jurist’s role within it.

c h a p te r 3

Natural law as political psychology

In much of the scholarship devoted to Thomasius since the 1970s, his natural law writings have been treated as foundational for the rest of his programme.1 Here ‘foundational’ takes its meaning from modern moral philosophy and its post-Kantian historiography: namely, as signifying an attempt to discover and justify the moral philosophical principles or laws that provide the normative basis of human conduct as such, including juridical and political conduct.2 This assumption has led to Thomasius’s natural law writings being approached as if their central preoccupation is the relation between morality and law. In turn, the morality–law relation has been construed via the defensive role of individual subjective rights and freedoms in relation to state power and positivistic law. Approaching Thomasius as a natural law philosopher in this way thus allows him to be integrated into a pan-European (potentially global) history of liberal rights and freedoms, identiﬁed with the Aufklärung. Here he can be praised by those who regard his separation of morality and law as providing a 1

2

The template study in this regard is Werner Schneiders, Naturrecht und Liebesethik. Zur Geschichte der praktischen Philosophie im Hinblick auf Christian Thomasius (Hildesheim: Olms Verlag, 1971). For recent examples, see Helmut Holzhey and Simone Zurbuchen, ‘Christian Thomasius’, in H. Holzhey and W. Schmidt-Biggemann (eds.), Grundriss der Geschichte der Philosophie. Die Philosophie des 17. Jahrhunderts, Band 4: Das heilige Römische Reich deutscher Nation, Nord- und Ostmitteleuropa (Basel: Schwabe, 2001), pp. 1165–202; Martin Kühnel, Das politische Denken von Christian Thomasius: Staat, Gesellschaft, Bürger (Berlin: Duncker & Humblot, 2001); and especially Klaus-Gert Lutterbeck, Staat und Gesellschaft bei Christian Thomasius und Christian Wolff: Eine historische Untersuchung in systematischer Absicht (Stuttgart:Frommann-Holzboog, 2002). For important exceptions to this approach, see Horst Dreitzel, ‘Christliche Aufklärung durch fürstlichen Absolutismus. Thomasius und die Destruktion des frühneuzeitlichen Konfessionsstaates’, in F. Vollhardt (ed.), Christian Thomasius (1655–1728). Neue Forschungen im Kontext der Frühaufklärung (Tübingen: Niemeyer, 1997), pp. 17–50; Hinrich Rüping, ‘Theorie und Praxis bei Christian Thomasius’, in W. Schneiders (ed.), Christian Thomasius 1655–1728: Interpretationen zu Werk und Wirkung, mit einer Bibliographie der neueren Thomasius-Literatur (Hamburg: Felix Meiner, 1989), pp. 137–47; and Notker Hammerstein, ‘Thomasius und die Rechtsgelehrsamkeit’, Studia Leibnitiana 11 (1979), 22–44. These accounts focus on Thomasius’s public law, his Staatskirchenrecht in particular, in the context of his campaign against the Lutheran confessional state.

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normative defence of such rights and freedoms;3 criticised by those who see the separation as granting too much autonomy to a ‘positivistic’ law;4 and treated as a ‘transitional ﬁgure’ by those who regard his attempt at the former as only partially successful, owing to the persistent political absolutism expressed in the latter.5 In Chapter 2, however, we indicated that natural law was not the foundation of Thomasius’s thought but an element of his wide-ranging reform of Lutheran Schulphilosophie. Thomasius regarded the discipline of natural law that he encountered at the University of Leipzig – the ‘Christian natural law’ expounded by Valentin Alberti in particular – as grounded in the confusion of philosophy and theology that typiﬁed ‘sectarian philosophy’ more broadly. It was thus complicit in the coercive imposition of a doctrinalised religion that characterised the confessional state, and was doubly dangerous owing to its key role in the philosophical education of law students. This role is a pointer to the limited and particular sense in which natural law was foundational for Thomasius: namely, in the pedagogical sense, as the ‘foundation course’ for students of jurisprudence, who risked being corrupted by sectarian philosophy if it were left unreformed. As with the other disciplines of sectarian Schulphilosophie, so too Thomasius’s criticism of Christian natural law and his proposals to reform it were neither based in a better philosophy nor carried along in a history that would make philosophy better – regardless of whether this history is envisaged in terms of the future harmonisation of natural law and the ‘ethic of love’, or in terms of the Kantian reconciliation of voluntarism and rationalism. We have seen, rather, that Thomasius’s way of thinking about ‘philosophy and the liberal arts’ was shaped by a powerful historiography of philosophy. According to this historiography, the forms of reasoning

3

4

5

Simone Zurbuchen, ‘Gewissensfreiheit und Toleranz: Zur Pufendorf-Rezeption bei Christian Thomasius’, in F. Palladini and G. Hartung (eds.), Samuel Pufendorf und die europäische Frühaufklärung. Werk und Einﬂuß eines deutschen Bürgers der Gelehrtenrepublik nach 300 Jahren (1694–1994) (Berlin: Akademie Verlag, 1996), pp. 169–80; Klaus Luig, ‘Von Samuel Pufendorf zu Christian Thomasius’, in Palladini and Hartung (eds.), Samuel Pufendorf und die europäische Frühaufklärung, pp. 137–46; Mario A. Cattaneo, Delitto e pena nel pensiero di Christian Thomasius (Milan: Giuffré, 1976). Schneiders, Naturrecht und Liebesethik, pp. 201–14, 241–2, 262–89; Jutta Brückner, Staatswissenschaften, Kameralismus und Naturrecht: Ein Beitrag zur Geschichte der politischen Wissenschaft im Deutschland des späten 17. und frühen 18. Jahrhunderts (Munich: C. H. Beck, 1977), pp. 121–5; T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000), pp. 129–35. Lutterbeck, Staat und Gesellschaft, pp. 14–43; and Frank Grunert, Normbegründung und politische Legitimität. Zur Rechts- und Staatsphilosophie der deutschen Frühauﬂkärung (Tübingen: Max Niemeyer, 2000), pp. 225–30, 273–8.

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involved in Christian natural law – especially the derivation of natural law norms via rational participation in a holy divine law – are themselves products of the originary mixing of pagan philosophy and Christian revelation. Subjected to such a radical suspension, these forms of reasoning do not feed into a shared ‘philosophical conversation’ in which Thomasius too was engaged. They feature instead as a problematic historical phenomenon – the reciprocity between transcendent philosophical doctrine and the ‘enthusiast’ comportment of the transcendental philosopher – on which Thomasius’s historiography supervened with a view to destruction rather than dialogue. This suggests that Thomasius’s natural law writings emerged as a programmatic reformist response to the speciﬁc forms of Christian natural law taught in the Protestant universities of the northern Holy Roman German Empire. Further, this response was not itself grounded in natural law but in a programme for its transformation informed by a powerful historiography and an array of juridical and political doctrines that it brought in its wake. As such, Thomasius’s natural law writings were not an attempt to provide a philosophical foundation for his juridical and political thought. Rather, they were a programmatic intellectual means of transforming the curriculum and culture of the confessional university in a manner that would allow politics and law to be pursued independently of their (Christian) philosophical foundations. Before discussing these writings, then, we must ﬁrst provide a sketch of Thomasius’s ‘regional’ engagement with the Christian natural law of Lutheran Schulphilosophie, showing how this engagement shaped the form of his own natural law, and also the manner in which he received other European thinkers – Grotius, Hobbes, Pufendorf and Bayle. Only then will it become possible to discuss Thomasius’s relation to a conception of natural law based in individual subjective rights and freedoms, which will take place in the course of Chapters 4 and 5. natural l aw: christian versus secul ar As it was taught in the Protestant universities of the northern Holy Roman German Empire during the seventeenth century, the discipline of Christian natural law represents in a particularly striking way the degree to which academic culture was anchored in the religious and political interests of confessionally aligned states and estates.6 As noted in our discussion of 6

For an overview of Christian natural law see Hans-Peter Schneider, ‘Christliches Naturrecht’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 813–35.

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Melchior Osse’s testament in Chapter 1, positive law played the key role in the ordering of estates and states within the structures of the Empire. This meant that university law faculties played the key role in equipping bourgeois jurisconsults and noble politici with a training in the central forms of positive law – Romano-canon law, public law (including church law) and local German law – that permitted them to function in the courts and parliaments of the Empire. Positive law, though, was also integral to the religious order of confessional estates and states, not just at such spectacular ﬂashpoints as heresy and witchcraft law, but in the more mundane regulation of procreation, marriage, death and inheritance, where legal regulation was carried out in tandem with church law and ritual. Positive law thus required anchoring in the theological and ethical culture of a confessional territory and its universities. This was the task undertaken by the discipline of Christian natural law, which was elaborated largely by academic philosophical theologians. In addition to Alberti, the Lutheran version of the discipline was cultivated by such leading theologians as Valentin Veltheim (1645–1700) at the University of Jena, Johann Joachim Zentgrav (1643–1707) of Strasburg and Samuel Strimesius (1648–1730) who taught philosophy at Königsberg. Constitutively opposed to the notion that positive law might have an autonomous basis in the preservation of political order – as argued by the Helmstedt political philosopher Henning Arnisaeus and political jurist Hermann Conring – Christian natural law sought to anchor law in a mix of theological, philosophical and ethical principles designed to keep politics within a quasi-theocratic confessional orbit. This set the scene for the discipline’s vehement opposition to the profane natural law of Hobbes and Pufendorf, which sought to ground law in politics by allowing the civil sovereign to interpret natural law norms in accordance with the goal of social peace.7 Working under the umbrella doctrine according to which norms are derived from the moral nature created in man by God, Christian natural law deployed its own version of these norms – Christ’s love ethic as a

7

On German natural law more broadly, see Knud Haakonssen, ‘German Natural Law’, in M. Goldie and R. Wokler (eds.), The Cambridge History of Eighteenth-Century Political Thought (Cambridge: Cambridge University Press, 2006), pp. 251–90. On this conﬂict see Hans-Peter Schneider, Justitia Universalis. Quellenstudien zur Geschichte des “Christlichen Naturrechts” bei Gottfried Wilhelm Leibniz (Frankfurt am Main: Klostermann, 1967); Fiammetta Palladini, Discussioni seicentesche su Samuel Pufendorf. Scritti Latini: 1663–1700 (Bologna: Mulino, 1978); and Ian Hunter, ‘The Love of a Sage or the Command of a Superior: The Natural Law Doctrines of Leibniz and Pufendorf ’, in T. J. Hochstrasser and P. Schröder (eds.), Early Modern Natural Law Theories: Strategies and Contexts in the Early Enlightenment (Dordrecht: Kluwer, 2003), pp. 169–94.

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model of social order, the Ten Commandments as basic ethical maxims – in a variety of political and juridical contexts. It used them as a means of organising the reception of Roman and canon law, to provide norms for the consistorial governance of the church and its congregation, and in formulating a suprapolitical conception of society as a moral community. This spread of functions is reﬂected in the three uses assigned to Christian natural law by Lutheran philosophical theologians: as a norm for disciplining sinners, heretics and inﬁdels (usus politicus); as a means for discerning sin and revealing God’s judgement (usus paedagogicus); and as a norm of conduct for the religiously reborn (usus in renatis).8 This last use was central. It was elaborated in a (Christian-Platonic) philosophical theology according to which through the cultivation of a puriﬁed reason, understood as the imago Dei, some individuals could partially restore man’s prelapsarian integral condition (status integritatis) and, in doing so, participate in God’s rational intellection of norms. Displaying Lutheran Schulphilosophie at its most politically engaged, this was the basis on which intellectually puriﬁed academic philosophers and theologians sought to advise the prince on the usus politicus and usus paedogogicus. If it was their intellectual purity that equipped the Christian natural jurists to discern the divine laws of nature, then it simultaneously provided them with the prestigious persona that qualiﬁed them for civil ofﬁce, as academic advisers to the court or as members of the consistory. This was the judicial ecclesial body – staffed by both theologians and lay ofﬁcials – that Protestant princes had established to administer the church and render judgements in various matters of church law. Most of these features of Christian natural law were powerfully embodied in the writings and person of Thomasius’s most formidable intellectual opponent at Leipzig during the 1680s, the Lutheran philosophical theologian, Valentin Alberti (1635–97). In his major natural law work – the Compendium juris naturae, orthodoxae theologiae conformatum (Compendium of Natural Law conforming to Orthodox Theology) of 1676 – Alberti made powerful use of the twin ﬁgures of the status integritatis and the rational imago Dei in order to rework and strengthen the scholastic conception of natural law as the theological basis of ethics and politics. He could thus exploit the metaphysical potential remaining in Grotius’s conception of natural law as dictamen rectae rationis – the commands of right reason – by construing reason in terms of the intellection of pure 8

Horst Dreitzel, ‘Naturrecht als politische Philosophie’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 836–48, at 840.

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norms that man shares with God.9 This provided him with a powerful weapon to attack Pufendorf ’s derivation of natural law from the rules required to maintain sociability in the face of man’s propensity for mutual predation. In opposition to Pufendorf ’s Hobbesian conception of it, Alberti construed man’s natural condition in terms of his prelapsarian condition of innocence (status integritatis). This was treated as the image of a perfect legal order in which men discerned divine norms through a reason that they shared with God, and conformed their conduct to these norms in doing so. Like Leibniz, Alberti thus regarded the Romano-canon law articles of natural law – neminem laedere (hurt no-one) and honeste vivere (live morally) – as applications of the ‘paradisal natural law’ to man’s postlapsarian sinful condition.10 Natural law thus required man to restore his condition of innocence through the rational puriﬁcation of his practical will, much in the same way that Kant would later construe morality in terms of empirical man’s (homo phenomenon) recovery of his pure will as a ‘rational being’ (homo noumenon).11 Alberti’s natural law privileged the persona of the metaphysical theologian. In renovating his own intellectual nature – by purging its sensuous attachments and developing pure or transcendent moral concepts – this personage was qualiﬁed to accede to the norms of the Decalogue and the Christian love ethic, thence to construe them in accordance with the polemical purposes of confessional theology. It was through this combined intellectual and social comportment – formed by Lutheran Schulphilosophie and rendered politically consequential through the role of this philosophy in maintaining the intellectual infrastructure of the confessional state – that a metaphysician like Alberti could exercise a particular kind of civil power in Saxony. In addition to being a professor of logic, metaphysics and theology at Leipzig, Alberti had been appointed assessor or religious adviser to the Dresden Superior Consistory in 1678. Established in Protestant states following the Treaty of Augsburg (1555), consistories were the means of transferring the governance of Protestant churches to territorial princes, in accordance with the imperial jus reformandi (right of reformation) granted them by the treaty. During the confessional or ‘episcopal’ period of Lutheran church law, the consistory was understood as representing

9

10 11

Valentin Alberti, Compendium Juris Naturae, orthodoxae Theologiae conformatum (Leipzig, 1676), pp. 22–4, 196–214. Ibid., pp. 98–100. Ibid., pp. 106–8. Cf., Immanuel Kant, Groundwork of the Metaphysics of Morals, in M. J. Gregor (ed. and trans.), Practical Philosophy (Cambridge: Cambridge University Press, 1996), at pp. 96–108.

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the ruler in his dual persona as bishop and civil magistrate – the Zwei-Personen-Lehre – and was charged with exercising church law in such areas as matrimony, sexual conduct, heresy and moral infringements warranting excommunication.12 In arguing for the derivation of a natural law of love, acceded to by intellects restored to their status integritatis, Alberti’s Christian natural law was in effect an argument for the pre-eminence of metaphysical theologians over secular jurists in the consistorial governance of the community of the faithful. More broadly, it was a defence of the consistory’s power to exercise a dual religious and civil jurisdiction, through the prince’s ‘episcopal’ persona, in accordance with the theocratic orientation of the confessional state, and on the basis of the theologians’ privileged insight into true doctrine. The manner in which this jurisdiction worked in practice can be seen from Thomasius’s own case when, in March 1690, Alberti, supported by Augustin Pfeiffer and the Carpzov brothers, laid complaints against Thomasius’s teaching and writings before the Dresden Superior Consistory.13 Alleging that he had trespassed into theology and propagated doctrines sympathetic to the Calvinists and Pietists and hostile to Saxon Lutheranism, the complaints resulted in the issuance of a consistorial order ﬁning Thomasius and prohibiting him from lecturing and publication, given force as a ducal decree. If Alberti’s Compendium was largely a response to the profane or secular natural law of the 1670s – Pufendorf ’s and Becmann’s in particular – then the latter was almost wholly a reaction against the Protestant scholastic form of Christian natural law that had emerged in the middle of the sixteenth century and whose central themes had been reworked by Alberti, Zentgrav, Veltheim and Strimesius. Johann Christoph Becmann – the Calvinist polyhistor whom Thomasius encountered at Frankfurt on Oder – was one of the ﬁrst to put the lessons of Hobbes to use against the central tenets of Christian natural law. If man’s natural condition was not the paradisal condition of innocence, but Hobbes’s ‘war of all against all’, and if natural law refers to the norms of sociability that permit man to leave this condition by contracting to appoint a political sovereign who can keep order, then natural law is not grounded in theology but in ‘reason

12

13

Martin Heckel, ‘Kirchenformfragen im Verfassungssystem. Zur Befristung von Leitungsämtern in einer lutherischen Landeskirche’, in his Gesammelte Schriften: Staat, Kirche, Rechte, Geschichte, ed. K. Schlaich, 4 vols. (Tübingen: J. C. B. Mohr, 1989–97), vol. iii, pp. 554–94, at 559–60. For Thomasius’s account of these events, see Christian Thomasius and Enno Rudolph Brenneisen, Das Recht evangelischer Fürsten in theologischen Streitigkeiten (Halle, 1696), appendix, pp. 242–7.

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of state’.14 Becmann conceived reason of state (ratione status) as reﬂection determined by the individual will to self-preservation – understood as the ‘status’ or condition to be maintained – but generalised via the sovereignty pact into a political imperative for the maintenance of a defensive autarkic state, to which the churches themselves must be subordinated.15 It was, however, Samuel Pufendorf ’s fundamental elaboration of a profane Hobbesian natural law – in his massive De jure naturae et gentium (Of the Law of Nature and Nations) of 1672 – that would prove decisive for the attack on Christian natural law, particularly for Thomasius’s contributions to the campaign.16 Rather than being an attempt to develop a secular politics de novo, on the basis of a purpose-built scientiﬁc method – in the manner of Arnisaeus’s Politica – Pufendorf ’s work sought to fashion such a politics from the recalcitrant materials of the natural law tradition itself. In the De jure he subjected these materials to the crushing weight of a vast humanist erudition that dwarfed the specialist metaphysics of his opponents, and that Thomasius himself would never come near. The De jure thus consists of a term-by-term criticism and reconstruction of the anthropology, theology, epistemology and politics of Christian natural law, executed via commentary on an extraordinary citational assemblage – ranging from Greek and Roman political philosophy, across Roman law and the Bible to such moderns as Bodin, Hobbes, Grotius, the French politiques, Arnisaeus, Lipsius and Conring, to mention a few – from which a new kind of natural law emerged. In place of the constructs of Christian natural law, Pufendorf provided a structure in which man’s natural condition is that of weakness (imbecillitas) and mutual predation in a post-lapsarian status naturalis. Here, cut off from access to divine or transcendent norms as the result of his damaged faculties, man must create norms for himself, only ascribing them post facto to the will of God.17 Derived from empirical reﬂection on the needy and vicious nature that God has willed for man gratuitously and inscrutably, these norms are those of the sociability and security required for the worldly survival and

14

15 16

17

Johann Christoph Becmann, Meditationes Politicae (Frankfurt an der Oder: 1672). See Dissertations iii, iv and v. Becmann, Meditationes Politicae, Dissertations xi, xii and xvii. This paragraph alludes to the more detailed discussion of Pufendorf in my Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), pp. 148–96. Samuel Pufendorf, De jure naturae et gentium, libri octo (Lund: 1672), bk. i, chs. 2 and 3. In English: The Law of Nature and of Nations in Eight Books, trans. C. H. Oldfather and W. A. Oldfather (Oxford: Clarendon Press, 1934).

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ﬂourishing of such a being.18 Finally, as individuals are themselves too fractious and self-interested to agree on such norms, they must ﬁnd their effective interpretation in the commands of the civil sovereign. Disregarding all theological claims regarding holiness or rational selfgovernance, the sovereign will derive these norms from the end of social peace, and will enforce them as law.19 Now we can see more clearly the reason for the impact that Pufendorf ’s work had on Thomasius when he came across it in his early twenties. In Pufendorf ’s separation of the God of salvation (who is removed from natural law altogether) and the God of natural religion (who remains but only as the object of a non-salviﬁc honouring for civil purposes), Thomasius found a blueprint for his own separation of pietistic faith and civil order. Above all, though, in its construction of a God whose inscrutable creation of man’s moral nature compelled his creature to forge purely worldly or civil norms of governance, Pufendorf ’s natural law emptied the space that had been ﬁlled by Lutheran philosophical theology with its doctrines of the rational imago Dei and the status integritatis. In so doing, it converged with Thomasius’s historiography of philosophy, which vacated the same space through its account of the originary confusion of philosophy and theology underlying Lutheran Schulphilosophie. It was in this space – between a God beyond reason and a civil order based in an historical reﬂection on man’s need for worldly security – that Thomasius would elaborate his version of natural law. This would be dedicated to the destruction of a Christian natural law that drew on divine reason in order to exercise religious governance in the civil sphere. It should already be clear that the purpose of Thomasius’s natural law was not to provide a rational or systematic foundation for moral and political norms – after all, what kind of rational construction begins with an account of the ruin of man’s faculties at the Fall? Rather, it was to transform the intellectual landscape in which such norms would be encountered and the persona of the jurist who encountered them, something that would in fact entail suspending the pursuit of philosophical foundations altogether. Thomasius’s two main natural law works – the Institutiones jurisprudentiae divinae (Institutes of Divine Jurisprudence) of 1688 and the Fundamenta juris naturae et gentium (Foundations of the Law of Nature and Nations) of 1705 – should thus be approached as separate but related attempts at this kind of transformation. They are thus thoroughly programmatic works 18

Pufendorf, De jure naturae et gentium, bk. ii, chs. 2 and 3. 19 Ibid., bk. vii, chs. 1, 2, 3 and 6.

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whose prime context is their author’s campaign for the reform of Lutheran Schulphilosophie, rather than a global philosophical history oriented to the rational justiﬁcation of morality.

the institutes of divine jurisprudence As part of the prefatory material added to the 1709 German translation of the Institutiones jurisprudentiae divinae, Thomasius included the programme notes for a private seminar that he had held on the work in 1691, the year following his ﬂight to Halle. In the baroque title to these notes, Thomasius tells his students that in the ﬁrst part of the seminar he will ‘draw, through clear and distinct propositions, the law of nature from the human inclination towards a peace-loving common society, and clearly show the insufﬁciencies of the common teaching that draws it from the eternal laws of divine holiness, likewise [the insufﬁciencies] of a new [version] that wants to derive it from the condition of innocence’. With regard to the second part of the seminar he undertakes ‘to thoroughly clarify universal divine revealed law, thus far undiscussed in universities’.20 The background to this rectifying work, Thomasius explains, lies in the defects of scholastic natural law and in their exposure by Pufendorf. Pufendorf ‘departed from the scholastics a little more than Grotius, and rejected the objectivity [ perseitas] of the evil and goodness of acts prohibited and prescribed by the law of nature, together with the ground for natural law proposed by the scholastics, [namely] agreement with divine holiness antecedent to divine will’. In substituting human sociability as the basis of natural law, Pufendorf had created a great storm of opposition in the Lutheran universities such that: ‘Finally the famous Leipzig theologian and philosopher, Doctor Valentin Alberti, tried at greatest length and most zealously not only to attack sociality but to derive the law of nature in a new way, from the condition of innocence, and to make this condition into a norm for the condition of present life.’21 Displaying the immediacy with which the Institutiones emerged from his programmatic defence of Pufendorf ’s breakthrough against Alberti’s counter-attack, Thomasius gives his students a list of the three points of engagement with Alberti that structure book i of the Institutiones. First, says Thomasius, he sought to show what kind of difference exists between 20

21

Christian Thomasius, Drey Bücher der Göttlichen Rechtsgelahrtheit (Halle, 1709; repr. Hildesheim: Georg Olms, 2001), fwd. p. 57. Ibid., fwd. pp. 60–1.

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the condition of innocence and today’s Fallen condition. Alberti’s Compendium juris naturae failed to do this and thus perpetuated several false beliefs regarding man’s innocent state: ‘for example, that the wife would have been subject to the husband even in the state of innocence; that children in the state of innocence necessarily would have been brought up by their parents and must belong to them; that there would have been republics in the state of innocence, and so on’. Secondly, Thomasius tells his students, book i of the Institutiones also shows why the condition of innocence cannot provide the norm for natural law. It shows not only that is it ‘impossible to attain through nature even the slightest degree of our lost perfection’, but also that man was governed by positive laws even in his innocent condition. Moreover, he continues, there were many things in the state of innocence that no longer concern our present state, or else that only arise on the hypothesis of our present ruined condition. This is to say nothing of the fact that Alberti claims that the pagans also knew the natural law, yet they clearly knew nothing of the state of innocence. Finally, Thomasius comments that Alberti cannot show that something is against the law of nature merely by observing that pagan philosophers also regarded it as forbidden, and thereby implying that natural law must be derived from universal reason. This could be explained equally by the fact that the pagans had learned of such prohibitions through divine positive law, acquired through their commerce with the Jewish people or from the traditions of their own forefathers.22 Through the manner in which he thus separates the condition of innocence from today’s fallen state – treating the former condition as a matter of revelation hence irrelevant to natural law, and the latter as requiring a purely worldly norm of sociability disconnected from holiness – Thomasius begins to open the space that would swallow Alberti’s version of natural law and in which his own could be elaborated. Before entering this space, though, we should remind ourselves of the reforming pedagogical context in which Thomasius was teaching his Institutiones at Halle in 1691. Thomasius tells his law students that, unlike Alberti, who sought to have the Institutiones conﬁscated as a dangerous book, he will be bringing Alberti’s Compendium to the seminar, in order to show its deﬁciencies openly and clearly. Further, in informing his students that he will be drawing on his own Hof-Philosophie as a supporting text, Thomasius displays the grounding of his attack on Alberti’s Christian natural law in his broader

22

Ibid., fwd. p. 62.

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historiographic critique of Lutheran Schulphilosophie: ‘Finally it will do no harm if I put my Introductio ad philosophiam aulicam on the menu, because in it I refute the primal falsehood [ proton psuedos] which appears to have led Dr. Alberti to his hypothesis regarding natural law: namely, the Christian philosophy that he has fabricated, which is to say a philosophy that derives its propositions from principles of divine revelation, and in this way … quite evidently intermingles the two lights of nature and divine revelation.’23 Thomasius’s own contribution to the unfolding battle over natural law is indeed conﬁned to book i of the Institutiones where he constructs the relation between revealed and natural law, while books ii and iii are derived almost wholly from Pufendorf ’s De jure. The central object of book i is to reconstruct the relation between biblical law and natural law in such a way as to destroy Alberti’s version of it. Alberti, we recall, used the state of innocence as a means of harmonising divine and natural law, appealing to the notion of a restored reason that permits theologians to accede to the objectively moral norms of the holy mind. Claiming the right to offer his own lay account of man’s integral and fallen conditions, Thomasius proceeds to characterise them in a manner designed to radically fracture Alberti’s envisaged harmonisation.24 According to Thomasius, if before the Fall man’s body knew no ills or inﬁrmities and his will and understanding were freely attuned to God’s, then afterwards all of this was terribly and irrecovocably changed. Now man’s body is wracked by illness and sapped by labour and, crucially, his will is dominated by vicious passions while his understanding is permanently darkened with regards to divine things and concepts. By treating man’s ruined condition as his natural state, Thomasius transfers the agreement between revealed and natural law from God’s intelligible holiness to his (now) unintelligible will, and thereby opens a crucial gap between the two laws. Revealed and natural law both originate in God’s will that man’s fallen state should be governed by laws that compensate for his damaged understanding and will. They do so, however, in quite different ways. Natural law arises from man’s residual capacity to reﬂect on his own (fallen) nature, using the light of reason to deduce the norms (of sociability) that agree with this nature: ‘The law of nature is therefore a divine law which is written in the heart of all men and obliges them to do that which agrees with the reasonable nature of all men and to

23

Ibid., fwd. p. 65.

24

Ibid., pp. 50–9.

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refrain from that which conﬂicts with it.’25 ‘Divine positive law’, though, is known only via the light of revelation in the form of the laws published by God in the Bible. Its role is to supplement natural law and natural reason, which cannot secure sociability by themselves, with divine positive commands; although in ‘religious jurisprudence’ these commands have nothing to do with salvation and pertain only to man’s worldly happiness and peace. Without these laws man’s conduct would be morally indifferent, so that moral sense and obligation are internal to the two kinds of willed law which have no necessary or rational relation to each other.26 This separation of a purely revealed biblical law and a wholly worldly law of nature drives a wedge between Christian moral theology and natural law, thereby transforming natural law into an object for a persona who will derive it through empirical reﬂection on the norms required to preserve worldly peace and calm – the persona of a secular jurist. Further, in restricting the jurisprudential use of biblical law to matters concerning man’s temporal welfare, this separation excludes theologians from the legal interpretation of this kind of law too, reserving it for jurists and their secular ‘superior’. The practical focus of this non-secularist secularisation of natural law is displayed in Thomasius’s (wishful) comment that his doctrine ‘agrees with standard practice … in the territories of Protestant princes, while also according with the usage of our consistories and the princely ordinances published regarding these’. Thomasius further comments that in separating biblical law and natural law in this manner, his doctrine will have ‘indescribable beneﬁts’ in clarifying the ‘otherwise extremely difﬁcult controversies over the duty of the prince regarding such [biblical] commands, and whether he has power of disposition over them or not, or [controversies] regarding the power and authority to make laws, and so on’.27 Considering Thomasius’s conception of natural law in terms of agreement with man’s rational nature, and his subsequent elaboration of rationality in terms of linguistically mediated sociability,28 it might look as if Thomasius is on track to construct a conception of natural subjective rights – as rights required for the contractual political expression of this nature – whether in the manner of Locke or Spinoza.29 To view the

25 29

Ibid., p. 73. 26 Ibid., pp. 64–77. 27 Ibid., pp. 81–2. 28 See ibid., pp. 116–20. This is the central argument of Lutterbeck’s Staat und Gesellschaft, pp. 70–88, 140–3. On the assumption that he is attempting to provide a philosophical foundations for politics, Lutterbeck argues that Thomasius’s ‘autonomous-contractarian thought’ in the Institutiones is derailed by a contradictory ‘authoritarian-legalistic’ tendency.

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programme of the Institutiones through this lens, though, results in a signiﬁcant distortion. There was indeed a doctrine of natural law that derived inalienable subjective rights from man’s rational and sociable being, but this was the Christian natural law that Thomasius was attempting to destroy. Even before the turn of the sixteenth century, Joachim Stephani had used a Platonistic metaphysics to establish the love ethic as the eternal law in which the reborn could participate and, in doing so, acquire the natural subjective rights through which they entered into a social contract to form a society based on love.30 This of course was the form of natural law that Thomasius sought to forestall: by sequestering the divine in the domain of non-rational revealed positive law, and the human in a domain of rational sociability where rights only arise from laws. In fact, Thomasius makes no attempt to derive rights from natural law – or biblical law for that matter – deriving them instead from a conception of law that pre-empts both of these: namely, law as the command of a ‘superior’, or someone who possesses the power to enforce his will.31 There are two such superiors – God who commands unconditionally as creator, and the human imperator whose commands presume consent – and from them arise divine and human law, respectively. Understood as an ‘active moral quality’, right is not an originary concept but derives instead from the room for action (and possession) created by the law or will of a superior: ‘Human right [Menschen Recht], though, must be derived originally from the will of God and in general from the will of the superior, which, in so far as it leaves room for freedom, gives rise to a right, and so far as it restricts freedom is called a law and is an origin of obligation. Consent is only a contingent and occasional cause in both cases.’32 The bearer of right is thus not the ontological or rational being, but the ‘person’ understood as the individual in occupancy of some kind of status capable of being commanded: as husband, father, wife, citizen, magistrate and so on. For its part, society is here understood not in terms of the realisation of man’s sociable nature but in terms of the association of ‘persons’ for some purpose. If right comes not from nature and is instead internal to a society of status-bearing persons, that is because right is a strict correlate of obligation which in turn arises from the existence of a superior who orders such a society: ‘This explains why there is no obligation where there is no superior, and least of all if there were no God. From this in turn 30

31

Joachim Stephani, Demonstrationes politicae (Greifswald, 1599). See Dreitzel, ‘Naturrecht als politische Philosophie’, pp. 842–3. Thomasius, Göttlichen Rechtsgelahrtheit, pp. 9–10. 32 Ibid., p. 25.

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it follows that obligation does not strictly arise from contracts.’33 As a result, rather than requiring individuals to pursue holiness or cultivate their reason or sociability, the ‘prime practical principle’ of Thomasius’s ‘divine jurisprudence’ is: ‘Obey the one who has command of you.’ As Thomasius explains, the primacy of this principle comes from his three central posits: the superior as the agent who has the power to command and obligate; the law as the imperative of the superior whose command obligates and thus requires obedience; and obligation, which arises from the superior’s power to compel obedience.34 Biblical law and natural law are thus not the foundation of rights. Rather, they represent the two carefully separated domains in which a superior issues the laws and creates the obligations from which particular kinds of right arise as correlates. In neither domain is law the expression of a fundamental nature – whether holy or rational or sociable – that might itself give rise to obligation, hence right, independently of the superior’s commands. In the case of ‘divine revealed positive law’ this means that the Bible’s commandments in such areas as marriage, sexual relations and parent–child relations are to be treated as non-rational divine commands that provide norms for conduct that would otherwise remain indifferent.35 These commands are addressed to humans in order to make up for the incapacity of natural law in these areas, and are interpreted by jurists in their ‘consistorial’ capacity, as laws pertaining to worldly peace. In the case of natural law, its determination in a form capable of imposing obligation and right can only be undertaken by the superior who commands the relevant form of human association. When this association is the state, then it is the civil sovereign who alone may determine the form in which natural law will issue in civil laws, hence obligations and their correlative rights. Following Pufendorf to the letter, Thomasius stipulates that sovereignty arises not from a contract freely entered into by rights-bearing subjects as a means of realising their ‘rational and sociable nature’, but as a result of the desperate mutual fear that drives men to empower a superior who can enforce sociability as a discipline.36 This means that the subject’s obligation to the sovereign’s laws arises not from rational reﬂection on sociability – from which natural subjective right might arise – but from the power of the sovereign to enforce the laws compelling men to be sociable. We have thus provided a quite different account of the Institutiones to the usual one. Rather than being an attempt to provide a philosophical

33

Ibid., p. 36.

34

Ibid., pp. 89–90.

35

Ibid., pp. 364–5, 403ff.

36

Ibid., pp. 468–74.

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foundation for political and juridical thought on a world-historical stage, the Institutiones was a piece of hand-to-hand intellectual combat with the Christian natural law taught in the seventeenth-century philosophy and theology faculties of an array of north German Protestant universities. Its weapons are not a set of coherent philosophical concepts but an array of theological, philosophical, political, juridical and historiographic discourses. These include the account of man’s fallen condition and its voluntaristic consequences; Pufendorf ’s conception of obligation (and right) in terms of the command of a superior; a juridical conception of person as a status-bearing individual; Grotius’s conception of natural law in terms of norms agreeing with man’s natural and sociable nature; and Pufendorf ’s conception of sovereignty as the fear-induced appointment of a superior whose role is to exercise unchallengeable command for the purpose of social peace. If these discourses – mostly posited without justifying argument – are hardly capable of forming a unilinear philosophical argument, that is because they were deployed to a quite different end: to transform the intellectual comportment of those making such arguments, hence the kinds of knowledge and truth that would be entertained. If, as we have seen, the role of Thomasius’s Grotian formulation of natural law was not to provide a natural right foundation for politics, this is in part because Thomasius regarded such foundations as weapons in the theological defence of the confessional state. It is also because the role of Grotius’s formula was to transform the intellectual landscape in which Thomasius’s law students would encounter natural law – into the state of fallen sociability requiring worldly regulation – without pre-empting the positive political and juridical norms that they would encounter in this new secularised space. Thomasius’s Institutiones was not an attempt to derive philosophical truth from shared philosophical premises, but a combative intervention into the operative legal theology of a Protestant confessional state. The proper context for interpreting the Institutiones should be gathered from the twin facts that its publication resulted in the banning and threatened arrest of its author in Saxony, while, in neighbouring Brandenburg, it was Thomasius’s Lutheran theological enemies who risked a spell in the Spandau prison. the sage and the prince The problematic historiography arising from the post-Kantian philosophical appropriation of Thomasius’s natural law is no less evident in several

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discussions of his second natural law work, the Fundamenta juris naturae et gentium (Foundations of the Law of Nature and Nations) of 1705. Here commentators assume that because the Fundamenta represents a selfconscious revision of central aspects of the Institutiones, it should be regarded as a diagnosis of the latter’s philosophical failings and as an attempt at philosophical supersession.37 This interpretation ﬁnds a degree of plausibility in the fact that the Fundamenta is indeed much more like a uniﬁed work of moral philosophy than the polyglot Institutiones. This in turn has allowed commentators to focus on the philosophically based separation of law and morality in the Fundamenta – Thomasius’s tripartite distinction between morality (honestum), manners (decorum) and law ( justum) – treating this as a modernising attempt to redress (what is supposed to be) Thomasius’s earlier ‘failure’ to provide a proper normative foundation for individual rights and freedoms against the state.38 Here too, though, there is a complication arising from the fact that the Fundamenta does not actually use this distinction in order to provide such a foundation. Rather than attempting to discover what the distinction is used for, however, commentators committed to viewing Thomasius as an early enlightenment moral philosopher deal with this complication by reclassifying him. He thus comes to be regarded as a ‘transitional ﬁgure’, stranded at the threshold of the Aufklärung, as if he stepped off the train of philosophical modernity before it reached its destination.39 There are a number of prima facie reasons for doubting this account of the relation between the two works. In the ﬁrst place, the Fundamenta is so literally a revision of the Institutiones that it was never designed to be read as a fully autonomous work. Only book i of the Fundamenta – in which Thomasius lays out a moral anthropology and doctrine of the passions as a new basis for natural law – actually constitutes an independent work. The various chapters of books ii and iii, however, are only short redactions of the parallel chapters in the Institutiones, dealing with the various kinds of duties, and designed to bring them into alignment with the new framework of moral philosophy provided in Book i. These chapters thus cannot be read independently of their originals in the Institutiones, which helps to explain the fact that in their ﬁrst German translation, in 1709, the two works were published together in a single volume. It was not just this 37

38 39

Luig, ‘Von Samuel Pufendorf zu Christian Thomasius’, pp. 143–6; Kühnel, Christian Thomasius, pp. 41–65; and Grunert, Normbegründung, pp. 172–82. Kühnel, Christian Thomasius, pp. 64–5. Cf. Grunert, Normbegründing, pp. 227–8; Lutterbeck, Staat und Gesellschaft, pp. 141–3.

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editorial co-dependency that kept the Institutiones in print, however, but the fact that Thomasius appears never to have deﬁnitively repudiated the work. Even in the late Cautelen zur Erlernung der Rechtsgelehrtheit of 1713, he continued to recommend the Institutiones to his students as a means of combating the rationalism of Christian natural law.40 These prima facie factors, though, are only a pointer to something far more signiﬁcant about Thomasius’s natural law works – and indeed his writings in general – namely, their occasional, strategic and provisional character. We have already argued that Thomasius assembled the array of discourses and doctrines informing the Institutiones on the basis of his historiography of ‘sectarian philosophy’ and in order to achieve a particular programmatic purpose. His aim was to detach natural law from its metaphysical linkage to divine law, and thereby detach Lutheran philosophical theologians like Alberti from the exercise of civil power as spiritually qualiﬁed advisers to the prince. Given the programmatic character of this assemblage, however, nothing was stopping Thomasius from approaching the same purpose via a different framework of natural law. The moral philosophy or moral anthropology that Thomasius used to reframe his natural law in the Fundamenta thus need not be seen as correcting the deﬁcient moral-philosophical foundations of the Institutiones. Rather, the revision can be seen as the addition of a discursive doctrine not present in the earlier work: the discourse of moral philosophy itself. We shall see that the role of this discourse was no less progammatic than those in the earlier work, particularly with regard to the strategic goal of the jurisconsult’s moral qualiﬁcation as an adviser to the prince. In other words, to understand the Fundamenta what we need is not a global history of moral philosophy – as if this discourse forms the fundamental basis for reﬂection on politics and law – but a history of the (religious, political, academic) circumstances that drove Thomasius to take up the discourse of moral philosophy, however brieﬂy and provisionally, as a weapon in his battle with Christian natural law. There is a clear pointer to these circumstances, and to the literary genre to which the Fundamenta belongs, in the kind of moral philosophy that Thomasius chose for his new framework. This philosophy is in fact the Epicurean Affektenlehre or doctrine of the passions that Thomasius had 40

See Christian Thomasius, Cautelen zur Erlernung der Rechtsgelehrtheit (Halle, 1713; repr. Hildesheim: Georg Olms, 2006), pp. 278–89, note ‘r’, where Thomasius recommends the Institutiones for its demolition of the claim that natural law can be derived through rational participation in divine holiness.

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elaborated in his Ausübung der Sittenlehre (Practice of Ethics) of 1696.41 We recall from Chapter 2 that he had developed this Affektenlehre as a moral therapeutics for his law students. This was designed to wean them from the intellectualism of Aristotelian virtue ethics and Platonic metaphysics of morals by providing them with a different moral anthropology. Only if they learned to relate to themselves as creatures of rationally ungovernable passions, Thomasius argued, would his students be able to take the ﬁrst step towards wisdom: personal acknowledgement of the miserable condition of their own wills. If the Institutiones contained a strategy for transforming the intellectual comportment of law students, then the Fundamenta took on this task much more centrally and frontally, by incorporating a speciﬁc moral therapeutic into a text designed for the law faculty’s ‘foundation course’ in natural law. Without attempting to capture the detail, we can observe that book i begins by borrowing from Thomasius’s ‘doctrine of spirits’ in order to provide a non-intellectualist moral anthropology. According to Thomasius, reason and will are not rational or immaterial substances but invisible powers of the soul operating in direct commerce with the body and with each other. Seated in the heart, the will is the immediate recipient of internal stimulation (from the alimentary and sexual functions of the body) and external (various objects of desire) which are manifest in the will as passions or desires. The understanding operates in tandem with the will, independently of it with regards to sense perception and judgement, but completely subordinate to the will in matters of moral judgement.42 The dominance of the will arises from the fact that it transmits the internal and external forces that allow human beings to live and that threaten them with death. The will manifests these forces in the ur-passions of hope and fear, from which arise the desires and the aversions that determine what is called good and evil. Reason cannot thus provide norms capable of regulating these passions and, in the moral domain, is reduced to the role of calculating the best means to attain desired objects or avoid detested ones. Neither does the will ‘will’ its passions – for then there would have to be another will – so that Thomasius understands the will as nothing more than the presence of 41

42

For a discussion of this work, see Hunter, Rival Enlightenments, pp. 223–34. For the role of Epicurean moral philosophy in Thomasius’s thought more broadly, see Dorothee Kimmich, Epikureische Aufklärungen. Philosophische und poetische Konzepte der Selbstsorge (Darmstadt: Wissenschaftliche Buchgesellschaft, 1993); and Kimmich, ‘Lob der “ruhigen Belustigung”: Zu Thomasius’ kritischer Epikur-Rezeption’, in Vollhardt (ed.), Christian Thomasius, pp. 379–94. Christian Thomasius, Grundlehren des Natur- und Völcker-Rechts, nach dem sinnlichen Begriff aller Menschen vorgestellet (Halle, 1709; repr. Hildesheim: Georg Olms, 2003), pp. 16–25.

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the passions and desires. As it is not free to will the passions that drive it, freedom of the will is restricted to whether or not man acts on the basis of these passions, which is enough for moral imputation: ‘Accordingly, the moral nature of man is a concept of the power to will with powers subordinated to the power of the will.’43 Thomasius leaves us in no doubt that his central target is what he calls the ‘double error’ of scholastic moral philosophy: the view ‘that the understanding or reason prescribes a norm or direction to the will, while the will is supposed to follow this rational proposition in accordance with the freedom with which it is endowed’. If the will lacks this freedom to will its own desires then ‘without doubt the whole of scholastic moral philosophy falls to the ground’.44 There is, though, a need for moral discernment or a discipline of ethics, for, owing to self-interest and the presence of particular ruling passions, individuals often mistake what is in fact conducive to life and happiness, and act instead to satisfy apparently good desires that nonetheless bring with them death and disorder.45 From this arises Thomasius’s basic moral category of ‘folly’ and the fool. The fools are those who, lacking inner calm owing to the dominance of their ruling passions, fail to discern that which would prolong their lives, and thus act to shorten them, and to disturb the outer calm of society: ‘They treat as beneﬁcial that which fosters the ruling passion and regard as harmful that which fosters the lesser passions or restrains the ruling passions … In seeking to attain happiness, everyone fosters instead their foolishness and unhappiness.’ For Thomasius most men are fools all of the time, while all men are fools some of the time.46 From here also arises his basic positive category, that of wisdom and the sage. In asking the question, ‘But who will now give the norm and rule?’, Thomasius answers in terms of the wise man or sage, whose role it is to provide moral direction for the fools. Thomasius’s sage of course cannot be the Stoic, Aristotelian or Platonic sage who, having transcended his own passions and achieved a pure rational insight into the good, prescribes objective moral norms. Rather, this personage is envisaged as the Epicurean sage who arrives at norms in a quite different way. In balancing his passions against each other, the Epicurean sage achieves the inner calm that allows him to discern which conduct is conducive to a long and happy life and may thus be regarded as honourable, decent and beautiful.47 It will come as no surprise that modem moral philosophers have complained that here Thomasius fails to provide a theoretical criterion or 43 47

Ibid., p. 25. 44 Ibid., pp. 31–2. Ibid., pp. 76–9.

45

Ibid., pp. 30–1.

46

Ibid., pp. 63–5.

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justiﬁcation for what he regards as good.48 This complaint mistakes the nature of Thomasius’s enterprise, however, which was not to provide a moral theory but an operative moral therapy. Against the background of more than a century of religious civil war, he viewed the theoretical question, ‘Are peace and calm truly good?’, as idle if not contemptible. As an ethics for jurists and politici, the Fundamenta begins with the assumption that inner calm and outer peace jointly constitute the highest good, and then proceeds to elaborate the means for attaining this end. Thomasius’s aim was not to provide a philosophical justiﬁcation for this assumption but to present the sage as a model for the intellectual comportment of those who would have to achieve inner detachment in order to administer the outer post-Westphalian peace. In other words, rather than being the answer to a theoretical question, the pursuit of inner calm and outer peace represents the comportment of an exemplary persona. Drawing on the grid of the three ruling passions developed in the Ausübing – Wollust (lust, or voluptuous pleasure), Ehrgeiz (ambition) and Geldgeiz (avarice) – Thomasius uses a moral combinatory in order to develop a characterology of fools, with clear ediﬁcatory intent. Unlike intellectualist ethics, though, Thomasius’s Epicurean kind does not regard the passions and sensuous desires as intrinsically evil, arguing rather that from their restrained use come all of the pleasures responsible for the happiness of life. More particularly, it is a particular balancing of the ruling passions that forms the temperament of the sage: Finally, those who combine ambition with restrained lust [pursuit of pleasure] are most suited to govern others and to prescribe them a norm or rule. As is shown elsewhere, the admixture of lust restrains the excess of ambition and the admixture of ambition restrains the excess of lust, such that from this combination comes the greatest virtues of which human nature is capable, even as this mixing produces excellence of character and judgement and a mild and gentle toleration and love of the weak.49

It is from the grid of ruling passions that Thomasius derives his hierarchy of fools and with it his celebrated distinction between law ( justum), manners (decorum) and morality (honestum). The greatest fools are those who allow their tumultuous passions to break out in acts disturbing outer peace, and hence require the coercive commands of law in order to be restrained. The ‘middling’ fools are those who fail to calm their own 48

49

See, for example, Werner Schneiders, ‘Vorwort’ to Thomasius’s Ausübing der Sittenlehre (Halle, 1696; repr. Hildesheim: Georg Olms, 1999), at pp. ix–x; and Kühnel, Christian Thomasius, pp. 41–52. Thomasius, Grundlehren, pp. 79.

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passions yet are able to prevent them disturbing society if they are taught manners, hence require advice on decorum rather than legal coercion. Finally, the least foolish are those who have already begun to calm their own passions and hence require only moral advice in order to experience inner obligation. From this the norm of the wise person follows directly: Further, given that the fools show through their actions that they lack inner calm and are thus incapable of promoting or preserving outer calm – in fact that they cause the disturbance of outer calm – it follows that the norm of a wise man, whose purpose is to lead the fools from unhappiness to happiness, is oriented to three main points: to the achievement of inner calm, that is, to restraining the foolishness of the three ruling passions; to the promotion of external calm through peaceable actions; [and] to avoiding the disruption of outer calm by refraining from actions that disturb the peace.50

Thomasius thus tells his law students that if they are to occupy the role of sage adviser, they must themselves undertake a practice of selftransformation. Beginning at the bottom of the hierarchy of folly by acting in accordance with the law, they must gradually work their way up through decorum to the self-restrained calm of morality that will permit them to prescribe norms for others. On the basis of this characterisation of it, we can propose that the genre to which the Fundamenta properly belongs is not political science (in the sense of Arnisaeus’s Politica), political philosophy (in the manner of Pufendorf ’s De jure) or public law (the genre of Thomasius’s own Vollständige Erläuterung der Kirchenrechts-Gelahrtheit),51 but the distinct genre of early modern political psychology. The Fundamenta is thus directly comparable with Lipsius’s neo-Stoic political psychology which was in vogue during Thomasius’s time at Frankfurt, while differing from it through the deployment of a neo-Epicurean moral anthropology, and through its focus on the psychology of the adviser rather than the prince.52 Its role was not to provide philosophical norms for political and legal activity, but to form the particular moral psychology – sceptical detachment from intellectualist moral theory coupled with wary self-scrutiny and inner restraint of the passions – that Thomasius regarded as desirable for those who would eventually offer political and legal advice. Despite the 50 51

52

Ibid., p. 88. Christian Thomasius, Vollständige Erläuterung der Kirchenrechts-Gelahrtheit (Frankfurt and Leipzig, 1740). For a helpful overview of Lipsian neo-Stoic political psychology, see Horst Dreitzel, ‘Politische Philosophie’, in Holzhey and Schmidt-Biggemann (eds.), Die Philosophie des 17. Jahrhunderts, Band 4, pp. 607–726, at 702–6.

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widespread claim that the presence of the moral anthropology makes the Fundamenta into a more ‘modern’ text than the Institutiones – in the sense of approximating a conception of individual moral self-formation that is associated with the Aufklärung – there is thus an equally strong claim to be made that it represents a more traditional genre than the earlier text: namely, the genre of ‘mirror for princes’ where political rule is tied to the moral qualities and qualiﬁcation of the ruler and his advisers. Thomasius himself claims that the feature of the Fundamenta that distinguishes it most radically from the Institutiones is its rejection of the latter’s discourse on man’s fallen condition and thence the category of ‘divine positive law’.53 This rejection, however, is only a symptom of the key difference between the two works: namely, the later work’s relegation of the polyglot array of discourses informing the earlier work in favour of the singular moral philosophical discourse that we have just outlined. So focused have commentators been on separation of law and morality, command and counsel in the Fundamenta, that they have paid insufﬁcient attention to the fact that these distinctions take place within a singular and uniﬁed moral psychology. This is the practice of progressive restraint of the passions through which the apprentice sage moves up through the levels of law, decorum and morality and thereby acquires the capacity to discern the different norms of conduct of the respective levels. The different levels are thus not as separate as they appear – they are not conceived as distinct statuses or personae aligned with disparate ethical spheres – for they are entirely dependent on the moral psychology of the sage who is supposed to combine them all. As a result, despite the fact that he assigns counsel to the ‘teacher’ and rule to the prince – ‘so that the persons of a teacher and a prince do not easily stand together’ – Thomasius nonetheless establishes a reciprocal relation between the two personae, as each in fact represents a dimension of a singular normative domain: ‘From this it follows that a teacher is subject to the rule of a prince, but the prince should draw the wisdom to counsel from the teacher.’54 The role of the sage-adviser thus cannot be to function as a juridical check on the absolutist aspirations of the prince, helping to transform the absolute state into a Rechtsstaat,55 as, in treating the two as aspects of a single moral psychology, the Fundamenta cannot establish adviser and prince as separate political ofﬁces. As in the ‘mirror for princes’ genre, the best that Thomasius can manage is a traditional 53 55

Thomasius, Grundlehren, fwd. p. 6. 54 Ibid., p. 89. As is argued in Grunert, Normbegründung, pp. 284–8.

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moral lesson – a Tyrannenlehre – on the reciprocal dangers of tyranny and powerlessness arising from the failure to combine power and morality: ‘As a result, rule without advice … leads to tyranny, advice without rule is incapable of improvement.’56 Appearances to the contrary, in deploying a single moral philosophy or moral psychology as the frame for natural law in the Fundamenta, Thomasius found it much harder to achieve the separation of religious, moral, juridical and political ofﬁces that characterises the Institutiones. The difﬁculties that Thomasius encounters as a result of this normative unity become apparent as soon as moves to integrate the concept of right into his picture. It will be recalled that in the Institutiones Thomasius ﬁrst develops his conception of right independently of his (then Grotian) conception of natural law, treating right as the room to move left by the commands of a superior that impose obligation through external coercion.57 This allowed him to exploit the Hobbesian and Pufendorﬁan construction of a gap between natural law and positive (right-creating) law, by leaving it to the civil sovereign to determine how the natural law norm of sociability will be translated into positive laws that command subjects to be sociable. This path is not open in the Fundamenta for two inter-related reasons. First, the new grounding of natural law in moral anthropology means that there is no sharp break between moral self-restraint and political-legal obligation, as here Thomasius allows obligation to also arise from the inward and non-coercive norms of morality and decorum. Secondly, in the Fundamenta laws are not understood as the commands of a ‘superior’ – from whom obligation arises through the power of enforcement – but as issuing from a sage-prince, who is understood to be morally qualiﬁed to rule as a result of his own inner restraint. This in turn gives rise to two consequences that are inimical to Thomasius’s larger programme. It threatens to create a form of moral right capable of contesting political and juridical right on the basis of a higher normativity; and it treats the ruler as exercising juridical coercion on the basis of his moral righteousness. For Thomasius such consequences were to be avoided at all costs, as he viewed them as the twin ideological pillars of the confessional state, no matter that modern political philosophers view them with equanimity. Thomasius attempts to deal with this problem by separating inner obligation arising from self-restraint and counsel from outer obligation arising from coercive command, restricting right to the latter form of

56

Thomasius, Grundlehren, p. 89.

57

Thomasius, Göttlichen Rechtsgelahrtheit, p. 25.

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obligation on the grounds that no-one can have a right over themselves: ‘All right is thus external not internal.’58 This move, though, threatens an even bigger problem. If legally imposed (perfect) right is the product of coercive external obligation – as opposed to the internal obligation of the norms of morality and decorum – then it is not clear how law forms part of the natural law trio (of law, decorum and morality) at all, or why the ruler who imposes it should have the moral qualities of the sage. Thomasius attempts to forestall this collapse of his framework by distinguishing between a ‘broad’ natural law and a ‘strict’ one. The former is understood as comprehending all the moral norms determined by the reasoning of the calmminded sage, embracing the norms of morality, decorum and law. Strict natural law, though, is conﬁned to the external commands of the prince, separated from the norms of morality and decorum, and apparently aligned with positive law: ‘In any case the right of nature will either be taken broadly as comprehending all the moral commands that arise from reasoning – whether they are rules of justice or also rules of morality and decorum – or else taken strictly for the commands of justice wholly and solely, as opposed to those of the moral (honourable) and the decent.’59 Some commentators have taken Thomasius at his word, treating the broad and strict understandings of natural law as pointing towards the relation that would be later established between natural subjective right and positive law.60 The problem with this response is that here we are not dealing with a single conception of law, understood broadly or narrowly, but with two radically different constructions of it. According to one, law arises from a moral philosophical hierarchy that includes morality and decorum and issues from a ruler qualiﬁed for command by his sage-like calm mind. According to the other, law does not arise from such a hierarchy and is simply imposed coercively by a superior who derives his authority to command from the autonomous purpose of preserving external peace per se: ‘Strictly, law refers to the command of the lord or king or magistrate, most strictly to general command in the republic.’61 Far from being a narrower version of the former, the latter conception represents an independent secular political conception of law which, in the Institutiones and elsewhere, Thomasius asserts against the former moral philosophical conception. In fact, the ﬁssure that we encounter here represents the gap between the genre of political psychology that predominates in the 58 60 61

Thomasius, Grundlehren, p. 97. 59 Ibid., p. 99. See Grunert, Normbegründung, pp. 227–8; and Kühnel, Christian Thomasius, pp. 64–5. Thomasius, Grundlehren, p. 94.

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Fundamenta and the political and jurisprudential conception of right to which Thomasius remained ﬁrmly committed in his public law writings. from political psychology to political jurisprudence We have thus provided our own account of the ‘complication’ in the version of natural law that Thomasius presents in the Fundamenta. This did not arise from any kind of gap between Thomasius’s ‘early enlightenment’ situation and the destiny of moral philosophy to provide a conception of legally protected subjective rights against state power. It was the result, rather, of a more historical and ‘regional’ gap: between the genre of moral philosophy used as a political psychology and the politicaljurisprudential construction of positive duties and correlative rights. Thomasius did not ‘fail’ to develop a conception of justiciable natural subjective rights in the Fundamenta because the natural law that he elaborates there is actually a political psychology for law students. It is thus incapable of generating a concept of juridical right, which Thomasius in fact derives from the discourse of public law and sovereignty. The limits of the genre of political psychology, however, did not pose a signiﬁcant problem for Thomasius. This was in part because he used the Fundamenta as a moral pedagogy in the law faculty’s foundation course rather than as a source of legal and political arguments, and in part because the provisional spirit in which he undertook such work meant that he was prepared to go on modifying his positions as his programme evolved and circumstances changed. This is a problem for many modern commentators, though, because they do treat his natural law writings – in particular his ‘separation’ of morality, decorum and law – as the source of philosophical norms for his juridical and political writings, and they tend to view intellectual work as systematic. Before proceeding to discuss these latter writings, we can conclude with two examples of the difference between Thomasius’s treatment of morality and law within his Epicurean political psychology and as autonomous concepts or problem-domains. First, with regard to decorum, we recall that in the Fundamenta this is construed via its intermediate position in the moral hierarchy. If law pertains to the external coercion of fools whose unruly passions disturb civil peace, and morality involves the inner selfrestraint of the wise or least foolish, then decorum pertains to the ‘middling fools’. The members of this class of fools can be taught manners so that their passions will not erupt in criminal acts, although they are not

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expected to achieve the sage’s inner self-restraint. Decorum thus features as the interstitial phase of a stadial moral psychology, from whose peak the self-calming sage-prince issues both the coercive laws and moral advice, on the basis of knowledge of the required norms. Elsewhere, however – in his lecture courses, in his Diskurs von der Nachahmung der Franzosen (Discourse on the Imitation of the French), and in his private seminar as recorded in the Cautelen – Thomasius construes the doctrine of decorum quite differently. Here it is regarded not in terms of universal norms of social conduct mediating between morality and law, but in terms of the absence of such norms.62 The beginning point for this conception of decorum is not the presence of a common moral psychology but the fact of brute social and moral difference, between different estates, religions and peoples. The crucial problem here is not how to restrain one’s outer conduct as a prelude to inner moral restraint, but how to conduct oneself so as not to give offence to others whose cultural or moral outlook is fundamentally unlike one’s own. Decorum in this setting is based in a different kind of moral psychology, namely, in the sense of shame or modesty that arises when one feels under the surveillance of social superiors. This second conception of decorum thus consists in imitating the manners of one’s social superiors or style-leaders. Thomasius was well aware that his writings contained two conceptions of decorum. In the Cautelen, he calls the conception outlined in Fundamenta ‘natural decorum’, and the other form ‘political decorum’.63 Whereas natural decorum presumes equality among men – as the result of a common moral anthropology – the founding premise of political decorum is fundamental inequality and moral difference. This means that political decorum has no use for the general rules of natural decorum. In the face of such fundamental inequality, one can only develop the kind of politeness that will permit one to win friends if one imitates the manners of a stratum or group taken to be noble, ﬁne or pre-eminent. ‘In this way one can characterise political decorum in accordance with sound reason as a reasonable imitation, arising from agreeableness, of those individuals in our estate who are regarded as pre-eminent and most splendid in their conduct, which does not conﬂict with the general rules of honour, decorum, and justice.’64 In stressing basic differences in styles of life, the political decorum of the Cautelen shows why the natural decorum of the 62

63

Christian Thomasius, ‘Diskurs von der Nachahmung der Franzosen’, in Kleine Teutsche Schriften (Halle, 1701; repr. Hildesheim: Georg Olms, 1994), pp. 1–70. Thomasius, Cautelen, pp. 368–70. 64 Ibid., pp. 374–5.

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Fundamenta cannot issue in a general ‘social philosophy’ based on shared values,65 as the absence of a common moral psychology across different estates and societies means that manners must be local and relative.66 Thomasius thus both invokes the concept of (natural) decorum developed in his political psychology for law students, while simultaneously showing its limits in relation to the problem of (political) decorum as it arose within the cultural politics of the multiply fractured societies of the Holy Roman Empire. In this latter setting, the problem is not that posed in the Fundamenta, of how the individual should pass through the stages of moral cultivation from outward manners to inner self-restraint. It is, rather, that in the societies of the Empire there are those who reject the need for manners or modesty altogether, while others – sects such as the Quakers and those cultivating monastic life-styles – insist that only their style of life should be followed, as it has been commanded by God. This threatens social cohesion. In arguing that Jesus did not introduce a particular set of manners, and was happy to adapt his own to the society in which he found himself, Thomasius rejects the notion that social conduct can be based in a common moral philosophy or psychology.67 This permits him to make a quite different and remarkable case for deriving models of social grooming – ways of speaking, dressing, eating, comporting oneself in public and private – from the manners of the most agreeable in the relevant sphere of life. He emphatically commends the study of this political decorum to his law students as an antidote to moral exclusivism. Our second example of the no-man’s-land between Thomasius’s political psychology and his public law political jurisprudence comes from the Fundamenta itself, signiﬁcantly from the chapter dealing with man’s duties to God, whose true theme is the political governance of religion. The sage continues to be present in this context, but his persona and functions are radically transformed. Rather than embodying an exemplary philosophical culture and a unifying discernment of moral and political norms, here the sage appears in the form of political adviser to a prince dealing with a set of problems speciﬁc to post-Westphalian Germany, the state of Brandenburg-Prussia in particular. The discussion of religion thus 65

66

67

Cf. the attempt to use decorum in the Fundamenta as a principle of ‘civil self-government’ in Lutterbeck, Staat und Gesellschaft, pp. 128–39. See the helpful discussion in Klaus-Dieter Eichler, ‘Klugheit und Decorum – Thomasius und das Problem der Relativität des Ethos’, in K. Bal, V. Caysa and P. Stekeler-Weithofer (eds.), Philosophie und Regionalität (Wroclaw: Wroclaw University Press, 1999), pp. 65–78. Thomasius, Cautelen, pp. 396–9.

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‘must clarify the principles of the entire rights of the prince in religious affairs and the measures through which one can prevent a prince from being oppressed by teachers or priests’. At the same time, ‘when a prince wishes to alter the external worship of God somewhat’, this discussion ‘must provide advice on how to take the middle path, so that the prince neither tyrannises over conscience nor allows too much leeway to those who, under the pretext of their conscience, instigate unrest in the commonwealth’.68 In a thinly veiled set of references to the struggle between Brandenburg-Prussia’s Lutheran estates and its reforming Calvinist dynasty, Thomasius continues that the discussion of religion ‘must handle the justice and injustice of religious civil war, both with regard to the position of the prince who wishes to introduce a new religion and to the position of the subjects who wish to preserve the old religion’. Further, ‘it must show who is entitled to decide this question, whether it is the religious or the secular, the theologians or the jurists’.69 This of course was anything but an open question for Thomasius. Such problems lie outside the reach of a uniﬁed moral anthropology or philosophy because they arise when states must rule over a plurality of moral communities grouped around competing moral anthropologies. Under these circumstances, the determination of norms for the governance of religion is not undertaken by the sage whose exemplary calming of his passions means that he speaks as a philosopher on behalf of everyman. Instead, those who are to hear this doctrine are to be carefully ‘selected’, because it is not a discourse open to all who seek truth or human happiness: ‘But this doctrine is not suited to all auditors. It is a true mystery of state [königliches Gemeimniß ]. As such, it is to be disclosed only to adults who are capable of discretion and have given clear proof that they have progressed some way on the path to wisdom, and who are dedicated not to the university but to the government.’70 At this point, the notion of a common political psychology embodied in the exemplary persona of the Epicurean philosophical sage reaches its limits. It has been displaced by a conception of the political adviser whose advice is grounded in a political prudence (civilis prudentia) and whose prime norm is social peace and the security of the state. It is to this much more fraught and unsettled ground, traversed in Thomasius’s combative public law disputations, that we now turn.

68

Thomasius, Grundlehren, p. 138.

69

Ibid., p. 138.

70

Ibid., p. 139.

ch a pter 4

Staatskirchenrecht: the religious rights of the prince

We have now reached the threshold across which we enter the domain of Thomasius’s positive legal and political writings. This threshold, we have argued, is not a continuous transition from the philosophical derivation of norms, duties and rights in the natural law works to their application in the domain of positive law and politics. Neither, though, is it a sharp division or discontinuity between self-enclosed intellectual domains, ‘philosophy’ and ‘law’. This threshold appears, rather, as the awkward passage between two different intellectual genres that were held together not by an underlying philosophy but by the curriculum of a certain kind of university. We have argued that the natural law doctrine elaborated in the Fundamenta juris naturae et gentium was a political psychology designed to form a particular persona or inner comportment for law students – scepticism regarding transcendent norms, receptivity to the notion of law as coercive governance of sociability – but did not determine the form or content of the laws that they would engage with this new outlook. That was the work of a different academic and intellectual genre – university disputations in public law – for which natural law provided the psychagogic preparation but not the technical determination. Thomasius’s most telling blows against the jurisprudence and politics of the Lutheran confessional state – his treatises on adiaphora, toleration, heresy, torture and witchcraft – originated as academic law disputations. Despite the modern view of them as sterile exercises, the immediacy with which such disputations could engage with pressing and controversial issues meant that they were often where the most advanced and consequential legal thought took place.1 They typically arose from the process of supervised doctoral research, and took their form from the ritual of an oral 1

See Gertrud Schubart-Fikentscher, ‘Ein Beitrag zum Usus Modernus Pandectarum inbesondere nach dem Dissertationen von Samuel Stryk und Christian Thomasius’, Eranion in honorem Georgii S. Maridakis (1963–64), 297–324.

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defence in which the supervisor played the role of praeses (presiding guardian) while the student was assigned the persona of respondent, as the one who had to defend the thesis on the day, in order to qualify for his degree. The orally defended Latin dissertation was also printed as part of the ceremonial, with authorship being divided between the praeses and respondent. Seen from a modern perspective this poses problems of authorial attribution. In her discussion of these problems, however, Gertrud Schubart-Fikentscher makes the point that at this time doctoral students were not asked to develop original ideas, only to display independent mastery of their supervisor’s.2 Further, as in Thomasius’s case, the praeses always assumed personal responsibility for defending the work in subsequent public controversies, and frequently assembled large collections of dissertations to be published as books under his own name, sometimes having them translated them into German for wider dissemination. Despite a slight and probably permanent element of obscurity in this matter, we may safely ascribe authorship of his key public law disputations to Thomasius himself, with one partial exception to be discussed below. Unlike its modern counterpart, early modern public law was not conﬁned to the domain of administrative law and, in its legal scope and political context, resembles modern constitutional law.3 This comparison too can be misleading, however, because its context was not the settled constitution of a modern territorial state, but the shifting and crisis-prone religious and political constitution of the Holy Roman German Empire. This had been shaped by the Golden Bull of 1356 – the imperial decree that established the seven Kurfürsten (electoral princes) who chose the emperor – by the two great religious peace treaties, of Augsburg in 1555 and Westphalia in 1648, and by the complex mix of imperial enactments and territorial statutes through which the provisions of these treaties had been incorporated in imperial and territorial law. Further, whether in the theocratic versions of Reinking, Arumaeus, Limnaeus and Benedict Carpzov, or the secular versions of Conring, Becmann, Brunnemann, Pufendorf, Thomasius and Böhmer, public law treatises also contained powerful political doctrines. Of particular importance were doctrines – drawn from Althusius or Bodin and Hobbes – designed to defend various 2

3

Gertrud Schubart-Fikentscher, Untersuchungen zur Autorschaft von Dissertationen im Zeitalter der Aufklärung (Berlin: Akademie Verlag, 1970). For an overview, see Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland. Erster Band: Reichspublizistik und Policeyewissenschaft 1600–1800 (Munich: C.H. Beck, 1988). For a discussion of the political functions of public law, see Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003).

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constructions of sovereignty, whether imperial or territorial. In addition to being translated into German as öffentliches Recht, imperial jus publicum was thus also rendered as Staatsrecht, perhaps ‘political law’. Thomasius also uses Fürstenrecht, or prince’s law, betraying his orientation to the territorial form of sovereignty that was emerging in Brandenburg-Prussia. Staatskirchenrecht thus refers to the branch of Staatsrecht dealing with the political or constitutional disposition of the church, and this is the domain in which Thomasius’s most consequential jurisprudential and political work took place. If we keep the preceding qualiﬁcations in mind, then this term might be translated as constitutional church law; although it must also be observed that here church law embraces the conﬂicting meanings of the church’s own law and a law prescribed for the church by the state. In addition to the mix of legal and political sources already mentioned, seventeenth-century Staatskirchenrecht also contained important theological doctrines, pre-eminently Lutheran theories of society and government that had been used to provide theocratic constructions for the Religious Peace of Augsburg. A good deal of the secular Staatskirchenrecht developed by Becmann, Brunnemann and Pufendorf was devoted to purging these theories and replacing them with a ‘universal public law’ closely associated with their secularised constructions of sovereignty. It was Pufendorf ’s version of this secularising Staatskirchenrecht that would prove most inﬂuential for Thomasius, especially his mentor’s De habitu religionis christianae ad vitam civilem of 1687.4 Thomasius’s treatises on adiaphora, toleration, heresy and witchcraft all emerge within this domain of secular Staatskirchenrecht. In representing Thomasius’s contributions to this contested discipline, these treatises exemplify his elaboration of it within the particular context that we discussed in Chapter 1: his situation as a religious and political exile from the Saxon confessional state, licensed to attack it from the refuge of multiconfessional Brandenburg-Prussia. Thomasius’s work on the constitutional disposition of church and state thus reﬂects a particular inﬂection of a more general secularised construction of Staatskirchenrecht, for which his natural law doctrine was intended to supply the appropriate political psychology. In order to understand his political jurisprudence we must therefore begin with a brief outline of some of the central developments in Protestant 4

For an English version, see Samuel Pufendorf, Of the Nature and Qualiﬁcation of Religion in Reference to Civil Society, ed. S. Zurbuchen (Indianapolis: Liberty Fund, 2002). Thomasius’s extensive (and sometimes critical) commentary on the De habitu is presented as part i of his posthumóus Vollständige Erläuterung der Kirchenrechts-Gelahrtheit (Frankfurt and Leipzig, 1740).

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Staatskirchenrecht, at least as these bear on Thomasius, before discussing his use of the discipline in his campaign against the Lutheran confessional state. protestant constitutional church l aw: theocratic and secul ar The features that we associate with the religious constitutions of modern liberal states – toleration, separation of church and state, a secularised state structure – were not the product of a universal secular philosophy grounded in the ﬁgure of the rational individual. In this regard, the Kantian or Rawlsian construction of them, in terms of the choices of rights-bearing rational beings, is a poor guide to their historical reality and gravity. These features emerged, rather, from a complex mix of forces and arguments – political, juridical and theological – arising from and responding to early modern religious conﬂict. In the Protestant states of the German Empire, the relations between church and state were formulated in the discourse of Staatskirchenrecht, although the meanings attributed to these key terms were so diverse that it is misleading to think of them as referring to clearly differentiated intellectual objects. The splitting of the Western church signalled by the appearance of Luther’s theological innovations resulted in a new conception of the church and its law. Against the Catholic conception of the church as the unique corporate custodian of a true faith that could be enforced through canon law, Luther construed the church as a community held together by faith alone and the brotherly love exempliﬁed by Christ.5 This church is ‘invisible’ as it forms a spiritual community, yet the contours of the external visible church should conform as closely as possible to its spiritual prototype. Those who live in accordance with the spirit have ‘Christian freedom’, even though their duplex nature means that they are enslaved to their bodily desires that bind them to sin.6 In the famous doctrines of the ‘two laws’ and the ‘two kingdoms’, Luther acknowledged the difference between spiritual and worldly government. He did so, however, from a wholly theological standpoint, maintaining their separation and treating worldly authority as God’s instrument for the external disciplining of

5

6

Martin Luther, ‘Eight Sermons at Wittenberg 1522’, in T.F. Lull (ed.), Martin Luther’s Basic Theological Writings (Minneapolis: Fortress Press, 1989), pp. 414–44, esp. sermons 1–3. Martin Luther, ‘The Freedom of a Christian’, in Lull (ed.), Martin Luther’s Basic Theological Writings, pp. 585–629.

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sinners, as opposed to enforcing confessional doctrine.7 As members of the faith community, believers are to enjoy Christian freedom, and truth is identiﬁed with the deliberations of the whole community rather than its priestly or theological elite. If Luther’s construction of the church and its law of love has a certain idealised ring, that is because it did not in fact form the basis of the Protestant church law that began to emerge from the middle of the sixteenth century. As Martin Heckel has shown, this law emerged from positive Staatsrecht, in the ﬁrst instance, from the imperial public law provisions of the Treaty of Augsburg proclaimed in 1555.8 The church law ﬂowing from Augsburg provided a frame for various theological doctrines, yet the law itself was founded in imperial jurisprudence rather than confessional theology. In this speciﬁc and limited sense it was ‘secular’ – elaborated in imperial juristic institutions (the Reichskammergericht and Reichshofrat) outside the churches – even when it was used to elaborate theocratic doctrines.9 Augsburg brought two fundamental changes to the religious constitution of the German Empire. For the ﬁrst time, it provided legal recognition for two distinct imperial confessions – the Augsburg Confession of the Protestants and (what would become) the Tridentine Confession of the Catholics – even if this was represented as an ‘interim’ measure pending the future reuniﬁcation of the church. At the same time, in Protestant territories Augsburg transferred ecclesial control from the pope and emperor to the imperial estates – the princes and cities – ascribing to them a jus reformandi: the right to reform the church and impose a particular confession in their territories.10 In such territories the prince thus became the highest bishop (summum episcopum), giving rise to the fundamental doctrine of Protestant Staatskirchenrecht: the ruler occupies two personae, prince and bishop, exercising civil and religious jurisdiction simultaneously. In Heckel’s unsurpassed analysis, the constitutional order inaugurated by the Treaty of Augsburg was characterised by a fundamental ambivalence. 7

8

9

10

Martin Luther, ‘Temporal Authority: To What Extent it Should Be Obeyed’, in Lull (ed.), Martin Luther’s Basic Theological Writings, pp. 655–703. This is one of the central arguments of Heckel’s Staat und Kirche, nach den Lehren der evangelischen Juristen Deutschlands in der ersten Hälfte des 17. Jahrhunderts (Munich: Claudius Verlag, 1968). His indispensable essays on Staatskirchenrecht have been collected in Martin Heckel Gesammelte Schriften: Staat, Kirche, Rechte, Geschichte, ed. K. Schlaich, 4 vols. (Tübingen: J.C.B. Mohr, 1989–97). Martin Heckel, ‘Zur Entwicklung des deutschen Staatskirchenrechts von der Reformation bis zur Schwelle der Weimarer Verfassung’, in Schlaich (ed.), Gesammelte Schriften, pp. 366–401. Martin Heckel, ‘Religionsbann und landesherrliches Kirchenregiment’, in H.-C. Rublack (ed.), Die lutherische Konfessionalisierung in Deutschland (Gütersloh: Gerd Mohn, 1992), pp. 130–62, at 137–42.

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In the ﬁrst place, there was an unprecedented secularisation of the Empire’s religious constitution, in accordance with its new role in establishing a legal framework for the political co-existence of two distinct confessions. This secularisation arose not from a new secular philosophy but on the basis of a series of changes to the legal and political order of the Empire carried out in the Imperial Parliament (Reichstag) and the Imperial Chamber Court (Reichskammergericht) which had been forced to adjudicate, and thus establish its neutrality between religiously opposed plaintiffs.11 Centrally, these changes involved: establishing parity of treatment for the two confessions in the Parliament and court; a de facto acceptance of the ‘permanence of heresy’; the replacement of Christian peace (pax christianae) based on religious reconciliation with a purely secular conception of political peace; and the relegation of theological truth from the terms of the Religious Peace in favour of the juridical and political goal of reaching a modus vivendi.12 This protracted process of juridiﬁcation produced a new conception of the church. Luther’s theological conception of a universal faith community organised around Christian freedom and truth receded into the background, put into the shade by a staatsrechtlich conception that viewed the church as a civil association whose confessional form was determined by the territorial prince for political reasons.13 At the same time, however, despite the emergence of this secular ‘territorial’ form of church law, both parties to the Augsburg Treaty continued to regard their own confession as the ‘one, true, universal church’, treating the rival confession as a work of the Anti-Christ, prophesied in biblical accounts of the culmination of divine history. This ambivalence received formal expression in Catholic interpretations of the Treaty itself. Here Augsburg was viewed as an emergency measure only, warranted as a lesser evil while the church was under threat, but destined to be revoked as soon as normal times returned – an interpretation that facilitated ready

11

12

13

Horst Rabe, ‘Der Augsburger Religionsfriede und das Reichskammergericht 1555–1600’, in H. Rabe, H. Molitor and H.-C. Rublack (eds.), Festgabe für Ernst Walter Zeeden (Münster: Aschendorffsche Verlagsbuchhandlung, 1976), pp. 260–80. For detailed discussion of these developments, see Heckel’s ‘Die religionsrechtliche Parität’, in Schlaich (ed.), Gesammelte Schriften, vol. i, pp. 227–323; and ‘Itio in partes: Zur Religionsverfassung des Heiligen Römischen Reiches Deutscher Nation’, in Schlaich (ed.), Gesammelte Schriften, vol. ii, pp. 636–736. On the territorial form of the Lutheran church and its Staatskirchenrecht, see Klaus Schlaich, ‘Der rationale Territorialismus. Die Kirche unter dem staatsrechtlichen Absolutismus um die Wende vom 17. zum 18. Jahrhundert’, in M. Heckel and W. Heun (eds.), Klaus Schlaich. Gesammelte Aufsätze: Kirche und Staat von der Reformation bis zum Grundgesetz (Tübingen: J.C.B. Mohr, 1997), pp. 204–66.

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abrogation of the Treaty at the onset of the Thirty Years War.14 Protestant interpreters accepted the de facto permanence of the new multiconfessional constitution, but only as the condition of survival of their religion, while simultaneously treating the process of reformation in their territories – the conﬁscation of church property, iconoclastic purging of the churches and introduction of new sacraments – as blows against the Catholic Anti-Christ.15 As a result of this constitutive ambivalence, the church law that emerged in Protestant territories can be characterised as having a secular staatsrechtlich framework, organised around the prince’s jus reformandi, coupled with strongly theological contents, ensuring that this right was exercised to enforce a particular Protestant confession. This was the state of affairs captured in the famous slogan of the Augsburg era, Cuius regio, eius religio (whose the country, theirs the religion). In other words, the ﬁrst form of Protestant Staatskirchenrecht was an adaptation of imperial public law to the religious and political objectives of the confessional state. This was the kind of church law elaborated by Dietrich Reinking and Matthias Stephani, and by Benedict Carpzov in his work on Saxon consistorial jurisprudence, the Jurisprudentia ecclesiastica seu consistorialis (Ecclesial or Consistorial Jurisprudence) of 1649. This form of Staatskirchenrecht was elaborated through a number of key doctrines.16 In the ﬁrst place, the new double persona of the ruler, as civil sovereign and highest bishop, was formalised in the Zwei-Personen-Lehre (doctrine of the two persons). This separated the civil and ecclesial jurisdictions by assigning them to distinct personae, yet uniﬁed them at a higher level by allowing the civil ruler to act in a double capacity, in accordance with the fundamental jus reformandi. In Carpzov’s formulation: ‘By virtue of the Religious Peace, the episcopal rights of princes and the status of Protestant ruler coincide: by which they represent a double person and exercise a double power, ecclesial and political.’17 The duplex persona doctrine was typically accompanied by the Drei-Stände-Lehre, or three-estate doctrine. The Drei-Stände-Lehre had initially been elaborated by Melanchthon as a Lutheran social theory, teaching that society consists of the three estates, the political, clerical and economic (Wehrstand, 14

15 16 17

The most inﬂuential Catholic interpretation of this kind is Francis Burkardt [in fact Andreas Erstenberger], De Autonomia, das ist, von Freystellung mehrelay Religion und Glauben (Munich, 1586). Martin Heckel, ‘Religionsbann und landesherrliches Kirchenregiment’, pp. 148–53. For a helpful overview of these, see Schlaich, ‘Der rationale Territorialismus’. Benedict Carpzov, Jurisprudentia ecclesiastica seu consistorialis (Leipzig, 1649), bk. i, def. 2.

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Lehrstand and Nahrstand ). In being applied as a constitutional theory of the church, however, the three estates were renamed as the magistracy, clergy and people, with the doctrine now being used to treat church governance as divided between the estates. These twin doctrines were deployed in different ways depending on particular religious and political circumstances. On the one hand, the joining of civil and ecclesial personae and jurisdictions could allow full sway to the ‘territorialist’ form of church law, permitting the civil sovereign to treat the ecclesial jurisdiction as part of his regalian rights in accordance with the ius reformandi. This typically led to the enforcement of a particular confession in accordance with absolutist dynastic goals, as in the case of the Saxon confessional state. On the other hand, where the ruling dynasty’s religion differed from that of its clergy and estates, as in Brandenburg-Prussia, this same coupling of personae and jurisdictions could also support attempts to block the subordination of the church to secular territorial objectives. In this case, Lutheran theologians and jurists insisted on the relative autonomy of the clerical persona or estate. Both options were exploited in the theocratic form of Staatskirchenrecht elaborated by Reinking, Stephani and Carpzov during the ﬁrst half the seventeenth century. Carpzov thus used the Zwei-Personen-Lehre to insist on the difference between the personae of prince and bishop, with a view to showing that they represent different if linked secular and religious competences.18 This enabled him to argue for the competence of the clergy in the consistorial prosecution of religious law – in such areas as marriage, sexual misconduct, church attendance and heresy – thereby adapting Catholic canon law to the actual practice of the Dresden Superior Consistory.19 In turn, this set the scene for Thomasius’s attempt in the Institutiones to restrict consistorial Biblical law to the regulation of conduct affecting social peace, and to transfer consistorial jurisdiction to secular jurists. At the same time, as we shall see in more detail in Chapter 5, Carpzov also used this doctrine to defend the Saxon elector’s episcopal right to compel adherence to the Formula of Concord. For its part, the Drei-Stände-Lehre could be used to argue that the power of church government had to be divided between the secular magistracy, the clergy and the people, such that the magistrate could

18 19

Carpzov, Jurisprudentia ecclesiastica, bk. iii, def. 1, 4–5. For more on the consistorial basis of Carpzov’s church law, see Peter Landau, ‘Carpzov, das Protestantische Kirchenrecht und die frühneuzeitliche Gesellschaft’, in G. Jerouschek, W. Schild and W. Gropp (eds.), Benedict Carpzov: Neue Perspektiven zu einem umstrittenen sächsischen Juristen (Tübingen: Diskord, 2000), pp. 227–56.

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be treated as a servant of the religious community to which he belonged.20 This doctrine – suited to the form of the confessional ‘estate state’ – was in turn complimented by (the Calvinist theologian) David Pareus’s distinction between the inner and outer ecclesial power.21 Pareus’s distinction made it possible to argue that the Peace of Augsburg granted the secular princes only an external exercise of ecclesial jurisdiction. Carpzov could thus argue that the power of the secular magistrate is restricted to the external governance of church affairs – administration, ﬁnances, discipline – leaving the crucial matters of determining orthodoxy in preaching, liturgy and sacraments for the clerical estate.22 In developing the central doctrines of Lutheran Staatskirchenrecht in this way, Benedict Carpzov (1595–1666) was interpreting the imperial public law of the Augsburg Peace in a manner designed to constitutionally share the prince’s powers of religious supervision with the clerical estate. At the same time, however, this restraint was not directed towards religious pluralism and toleration, as the civil magistrate was still required to punish heretics and blasphemers in fulﬁlling his ‘estate’ role as the pre-eminent member of the church and external defender of the true faith. Carpzov’s Staatskirchenrecht thus remained strongly theocratic. The dominance of Carpzov’s ecclesial jurisprudence at the University of Leipzig meant that his elaborations of these central doctrines were the primary ones that Thomasius took as targets in his interventions in the area of Staatskirchenrecht. Thomasius also did battle with the late jurist by proxy, however, through his nephew, the theologian Johann Benedict Carpzov II (1639–99), who had helped engineer Thomasius’s exiling from Saxony and remained a life-long enemy. As we shall now see, Thomasius’s arguments for the separation of church and state, for the prince’s disposition over adiaphora, and for the toleration of dissenters and heretics emerged directly from his engagement with the founding forms of Protestant Staatskirchenrecht.

adiaphora : christian freedom and state authorit y The most important of Thomasius’s early works in the area of Staatskirchenrecht is the disputation De jure principis circa adiaphora (The Right of the Prince in Relation to Adiaphora), publicly defended at Halle by his 20 21

22

Carpzov, Jurisprudentia ecclesiastica, bk. i, def. 27, n. 2. See, David Pareus, In divinam ad Romanos S. Pauli Apostoli epistolam commentarius (Frankfurt, 1608). See Carpzov, Jurisprudentia ecclesiastica, bk. i, def. 1, n. 2.

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doctoral student Enno Rudolph Brenneisen on 13 September 1695.23 The Adiaphora disputation offers a comprehensive reconstruction of the relation between church and state, against the theocratic doctrines advanced by Benedict Carpzov and like-minded Lutheran jurists and theologians. It does so, however, as a means of intervening in a speciﬁc historical line of religious and political conﬂicts. Adiaphora, as Thomasius notes in the disputation, is a Greek word referring to morally indifferent things in the broad sense or, more narrowly, to those ‘external’ religious ceremonies which are regarded as neither commanded nor forbidden by God, hence not needed for salvation.24 A controversy over adiaphora had broken out within the Lutheran church following the Augsburg Interim of 1548. The Interim formed part of the treaty that ended the ﬁrst major conﬂict between the Empire and its Protestant princes, the Schmalkaldic War of 1546–47, in which the Catholic emperor had been victorious. It was a set of imperial measures in which Emperor Charles V required Protestants to acquiesce in an array of Catholic ceremonies deemed indifferent with regard to salvation – that is, adiaphora – until the reuniﬁcation of the faith at a future church council. In Saxony, Duke Moritz, aided by the moderate Lutherans Johann Pfefﬁnger and Prince Georg III of Anhalt, had attempted to operationalise the emperor’s edict by drawing up the Leipzig Interim. Here, an array of ‘adiaphoristic’ rituals and ceremonies – pertaining to baptism, confession, the Eucharist, the last rites, the use of holy oil – were ﬁnessed in such a way as to soften the difference between their Catholic and Lutheran forms, with a view to allowing the Saxon Lutherans to continue to practise their faith under the Catholic emperor. This compromise was utterly rejected by the ‘Gnesio’ or true Lutherans, led by Matthias Flacius Illyricus, Nikolaus von Amsdorf and Nikolaus Gallus. They accepted that many ceremonies were indeed adiaphora, but denied that these could be changed when they deﬁned Lutheran confessional identity, or when to do so would ‘scandalise the weaker members’ of the church.25 The controversy was extended with 23

24

25

The German translation, Das Recht evangelischer Fürsten in Mittel-Dingen, oder Kirchen-Ceremonien, was published under Thomasius’s name in his Auserlesene deutsche Schriften, Zweiter Teil (Halle, 1705). An English translation, ‘The Right of Protestant Princes regarding Indifferent Matters or Adiaphora’, is available in Ian Hunter, Thomas Ahnert and Frank Grunert (eds. and trans.), Christian Thomasius: Essays on Church, State, and Politics (Indianapolis: Liberty Fund, 2007), pp. 49–127. This is the version from which I shall cite. Christian Thomasius, ‘The Right of Protestant Princes regarding Indifferent Matters or Adiaphora’, in Hunter, Ahnert and Grunert (eds. and trans.), Christian Thomasius, pt. i, § 5, p. 63. On this controversy, see Luther D. Peterson, ‘Johann Pfefﬁnger’s Treatises of 1550 in Defense of Adiaphora: “High Church” Lutheranism and Confessionalisation in Albertine Saxony’,

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the signing of the Treaty of Augsburg itself, as it contained provisions that also characterised legal recognition of the two confessions as an interim measure pending a unifying church council. This ‘adiaphorist’ faction, however, was marginalised as a result of the elaboration of an anti-Calvinist Lutheran orthodoxy, culminating in the church’s key confessional statement, the Formula of Concord of 1577. The Formula states that it is impermissible to change adiaphora simply to compromise with another confession or where this would ‘scandalise the weaker members’, and it denies the secular prince the right to change or abrogate adiaphoristic ceremonies, which belong to the internal order of the church.26 In the course of the long struggle that we discussed in Chapter 1, Brandenburg’s Lutheran clergy and estates used this defensive conception of the adiaphora as a weapon against the Calvinist dynasty’s attempt to reform the church and neutralise the conﬂict between the two Protestant confessions. Leading Lutheran metaphysicians and theologians argued that the Calvinist rulers should not to seek to abrogate or reform such adiaphora as baptismal exorcism, ecclesial vestments and decorations, or saints’ days. This, they claimed, weakened the one true Lutheran faith, scandalised the congregation, and represented an illegitimate attempt by the secular prince to infringe Christian freedom and tyrannise over consciences. Once again, it was the redoubtable Saxon metaphysician Balthasar Meisner who led the Lutheran charge, updating these arguments in his Collegium adiaphoristicum of 1618, although similar arguments are to be found in Carpzov’s Jurisprudentia ecclesiastica of 1649.27 This is the treatment of adiaphora that Thomasius targets in his disputation. Somewhat surprisingly – given the political-jurisprudential frame of the disputation – Thomasius begins his attack by reconstructing the idea of the church, although this becomes less surprising when we recall that the staatsrechtlich frame of church law held strongly theological contents. Reaching back to the early Lutheran conception of the church as a faith community, Thomasius argues that the true idea of the church is not to be looked for in public confessions and external ceremonies, but in the

26

27

in J.M. Headley, H.J. Hillerbrand and A.J. Papalas (eds.), Confessionalisation in Europe, 1555– 1700: Essays in Honor and Memory of Bodo Nischan (Aldershot: Ashgate, 2004), pp. 91–105. See, Formula of Concord, in T.G. Tappert (ed.), The Book of Concord: The Confessions of the Evangelical Lutheran Church (Philadelphia: Fortress Press, 1959), Art. x, pp. 610–16. Balthasar Meisner, Collegium Adiaphoristicum, in quo controversiae circa Adiaphora inter nos et Calvinianos agitate, perspicue tractantur, veritasque orthodoxa defenditur (Wittenberg, 1618). For Carpzov’s denial of the prince’s right to change church ritual ‘without consulting the ministers of the Word and the estates of the church assembled in a synod’, see Jurisprudentia ecclesiastica, bk. ii, def. 247.

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individual believer’s inner faith in God: ‘Therefore I cannot help but conclude that all external worship in natural religion is an indifferent matter.’28 Inner faith is something for which the individual believer is uniquely responsible and which he or she shares with other members of the community only through the mutual love commanded and exempliﬁed by Christ: ‘The Christian religion would thus appear to be content with an internal worship, that is, with the true humility of a self-abnegating mind, which devotes itself entirely to God.’29 Supporting this reconstruction with historical argument, Thomasius claims that the model of this community of believers is to be looked for in the simple forms of worship characteristic of the pre-Constantinian primitive church.30 At this stage, the Christian community was held together by the love of Christ exempliﬁed in the modest bearing of the apostles, who were teachers not rulers. Once Christianity had become the state church of the Roman Empire, however, then this simple faith was lost. External laws and ceremonies, imported from the Jewish and Greek religions, were used by a ‘papalising’ clergy to dominate a laity superstitious enough to believe that their salvation lay in them. For Thomasius, it is only a small step from here to the sixteenth and seventeenth centuries. Here the papalist residue in Lutheranism has allowed its clergy and theologians to use external rituals and sacraments to similarly exploit the superstitious beliefs of the people, and thereby contest the prince’s right to abrogate adiaphora and exercise his sovereignty over the public church. It has been argued that Thomasius’s appeal to the pre-Constantinian faith community shows that his reconstruction of church and state has theological rather than secular foundations, and is oriented to the reform of the church rather than the secularisation of the state.31 This overstates the case, however. We have already observed that the theological and the secular are not mutually exclusive categories for Thomasius as, like most other thinkers at this time, he thinks of secularisation primarily in terms of the transfer of ecclesial property and powers to civil control. This political secularisation can readily deploy theological arguments – such as the contrast between the simple purity of the primitive church and the corrupt 28 30 31

Thomasius, Adiaphora, pt. i, § 1, p. 55. 29 Ibid., pt. i, § 2, p. 57. Ibid., pt. i, § 3, pp. 57–60. See Thomas Ahnert, ‘The Prince and the Church in the Thought of Christian Thomasius’, in I. Hunter and D. Saunders (eds.), Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought (Basingstoke: Palgrave, 2002), pp. 91–105; and, more generally, Thomas Ahnert, Religion and the Origins of the German Enlightenment: Faith and the Reform of Learning in the Thought of Christian Thomasius (Rochester: University of Rochester Press, 2006).

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and power-hungry Constantinian or ‘papalist’ church – because it does not form part of an epochal transformation based on an inherently secular ‘reason’, as is so often assumed in accounts of the so-called Aufklärung.32 The argument in question is thus insufﬁciently attuned to the fact that the central point of Thomasius’s appeal to the primitive church was to attack the theocratic form of church law advanced by Meisner, Carpzov and their colleagues. If, as we have argued, Thomasius’s political and juridical arguments were not based in a foundational philosophy, then neither were they based in a fundamental theology. Thomasius thus used the theological conception of Christian freedom in a tactical and programmatic manner, as a weapon against his opponents’ quasi-political conception of the church: as a public body teaching the one true faith through a legally enforceable confession. In executing this strategy, Thomasius acknowledged his opponents’ key claim – that the secular prince may not govern inner religion – while simultaneously neutralising it, by treating the true church as so inward that it is incapable of infringing the public civil domain ruled by the prince. Any church that does infringe on this domain in a manner capable of disturbing it is by deﬁnition not the true faith community bound together by love alone, and is hence a public church subject to political regulation. The central threat to Christian freedom thus comes not from the secular prince, but from the papalising clergy and theologians who seek to impose adiaphoristic ceremonies as if they represented saving faith, and to enlist the coercive support of the civil authorities to enforce their domination of the laity.33 This is indeed a theological argument designed to undermine the credibility of the politically enforced confessional church defended by Meisner and Carpzov. Its overarching goal, however, was to deprive the church of all access to the coercive instruments of law and state, thereby secularising the latter, and granting the civil sovereign complete control of a public church whose mode of worship consists entirely of adiaphora. In pursuing this goal, however, Thomasius also used decidedly nontheological arguments. That this is indeed the case becomes clear as soon as we turn to the second major task of the Adiaphora disputation: the 32

33

The indispensable discussion of secularisation in this regard is Martin Heckel, ‘Säkularisierung: Staatskirchenrechtliche Aspekte einer umstrittenen Kategorie’, in K. Schlaich (ed.), Martin Heckel Gesammelte Schriften: Staat, Kirche, Recht, Geschichte (Tübingen: J.C.B. Mohr, 1989), pp. 773–911. See Frank Grunert, ‘Antiklerikalismus und christlicher Anspruch im Werk von Christian Thomasius’, in J. Mondot (ed.), Les Lumières et leur combat: La critique de la religion et des églises à l’époche des Lumières / Der Kampf der Aufklärung: Kirchenkritik und Religionskritik zur Aufklärungszeit (Berlin: Berliner Wissenschafts-Verlag, 2004), pp. 39–56.

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reconstruction of the religious authority of the prince or state. Once the Christian religion has been construed in terms of a purely inward faith and the brotherly love exempliﬁed by Christ and his disciples, then it is possible to treat the power of the prince as a purely secular phenomenon, based on principles independent of those governing true religion. Given ‘that there is no sentence in the New Testament speciﬁcally directed at supreme secular rulers by which they are entrusted with a particular ofﬁce concerning the church’, argues Thomasius, then ‘all rights of Christian princes – regarded as princes – are to be learnt from the principles of natural law and the genuine nature of civil sovereignty’. Signalling his radical departure from the constitutional foundations of the confessional state contained in the Treaty of Augsburg – the ius reformandi in particular – Thomasius continues: And thus if a pagan commonwealth adopts Christianity, the constitution of the state concerning the rights of the princes is not changed or abolished, but the supreme power remains in all its parts, and the subjects remain with all their ofﬁces and duties. For the change that occurs in citizens through Christian faith, or which should indeed occur in them, does not affect the obligation that exists between prince and subjects, but refers only to the internal disposition of the mind; and to this extent the rights of the princes over their subjects remain untouched.34

The principles of natural law and sovereignty that Thomasius now introduces, however, are not those elaborated in Fundamenta, as there is no mention of the idea that the sovereign’s authority ﬂows from his inner conquest of the passions, undertaken in collaboration with the Epicurean sage. In the Adiaphora disputation, these principles are drawn instead from Pufendorf ’s natural law and Staatskirchenrecht, where the authority of the sovereign comes not from inner restraint but from the purpose of states as artiﬁcial institutions dedicated to securing social peace: The purpose of commonwealths, however, in this corrupt state is for subjects to provide themselves with some protection against evils and attacks with which their more powerful neighbors in the state of nature threaten them. For below God there is no more efﬁcient instrument for coercing the malice of humans and for securing their safety than that ingenious invention whereby many humans by a mutual pact subject the direction of their will and their powers to the will of another, for the common beneﬁt of the whole community of subjects. As a result, it is undoubtedly true that a prince accrues as much power as is required for obtaining this purpose of the commonwealth, namely, for its internal and external peace.35 34

Thomasius, Adiaphora, pt. i, § 8, p. 68.

35

Ibid., pt. i, § 8, p. 69 (italics in original).

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Considering that public religions have been used to perpetrate ‘the most awful crimes … causing unrest in the commonwealth … threatening, disturbing and overthrowing neighbouring states’, and recalling that such religions consist in adiaphora, then ‘there is no doubt that the general supervision of his subjects’ actions, both in secular and religious matters belongs to the prince and that nobody can complain of an injury because of this’.36 Armed with his reconstructed conceptions of the true invisible church and the secular prince’s powers of religious supervision, Thomasius proceeds to dispose of some of the central doctrines of the Lutheran theocratic version of Staatskirchenrecht. He begins with the teaching that the church is divided between internal matters (doctrine, liturgy, sacraments) and external ones (administration, discipline, defence) and that the prince has no right to intervene in the former, which include the adiaphora. This doctrine is unacceptable, Thomasius argues, because it leads to irresolvable disputes and sets illegitimate limits on the prince’s powers of religious supervision. If we consider the case of whether the prince has the right to compel Jews to attend Christian worship, then there is an impasse between those who afﬁrm this right as a matter of external defence of the church, and those who deny it, as an internal matter beyond the prince’s competence. Deploying his new principles, Thomasius bypasses the entire framework of internal and external ecclesial matters, arguing instead that: ‘because the Jews regard it as unjust and repellent to attend Christian churches and take part in their sacred rites, and because this does not contribute anything to the peace of the commonwealth, it is not admissible to coerce their conscience’.37 This restraint on the exercise of civil power for religious purposes is not based, however, on the prince’s recognition of an untouchable inner domain, whether of moral self-government or subjective freedoms and rights. This becomes clear in a second controversy discussed by Thomasius. Here he is concerned to undermine the Lutheran episcopalist understanding of the prince’s rights of religious supervision, by arguing that these ﬂow to the prince no matter what his confession – Lutheran, Calvinist or Catholic – and thus may not be used to enforce a particular religion. Such rights, Thomasius insists, arise from a natural law that is consistent with ‘the general public law of Germany, which is founded in the Golden Bull, the decisions of the Imperial Diet, the Electoral Capitulations, and the Westphalian peace treaties’.38 The particular public law provision that 36 38

Ibid., pt. i, § 8, pp. 69–70 (italics in original). Ibid., pt. i, § 10, p. 74.

37

Ibid., pt. i, § 8, p. 71.

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Thomasius has in view is Article 5, § 48 of the (Westphalian) Treaty of Osnabrück of 1648. This speciﬁes that the subjects of most German princes are to hold the same rights of religious worship that they possessed in the so-called ‘standard year’ (Normaljahr) of 1624, regardless of the confession that their prince might have adopted in the meantime.39 In establishing terms for a modus vivendi in 1648 purely on the basis of an agreed territorial distribution of confessional populations and properties as these stood in 1624, independently of all questions of rival religious truth claims, Westphalia’s Normaljahr was typical of the new secular juridical instruments of peace-making. There is thus a striking contrast with the Augsburg Interim of a century earlier, where Protestants were forced to accept Catholic forms of worship as a condition of peace. This was the setting for the controversy that Thomasius is concerned with, which had arisen over whether a Catholic prince has the right to forbid his Lutheran subjects singing a hymn that was sung in 1624 but contains the words: ‘Preserve our faith in your word O Lord, and restrain the pope’s and Turks’ murderous ways.’ In this matter, in so far as the Catholic prince does not attempt to enforce his own religion, then Thomasius defends his right to intervene in Lutheran churches in his territory, as hymns are among the adiaphora and this hymn threatens social peace: A Catholic prince of course is there prohibited from coercing the conscience of Lutherans, by decreeing something which is contrary to the Augsburg Confession. But the regulation of indifferent matters by the prince does not violate either the freedom of conscience or the Augsburg Confession. For things which injure conscience are no longer indifferent matters, with which our hypothesis is concerned. The question, though, whether that expression ‘restrain the pope’s murderous ways’ is sung loudly in a public congregation or not, is an indifferent matter; because if somebody refrains from this he does not commit anything contrary to the Augsburg Confession, nor does he become a worse Christian because of this.40

If Thomasius thus explicitly rejects the Lutheran legal doctrine that the civil authorities have no right to interfere in the internal order of the church, then he does not even bother to raise the question of whether in doing so they might be infringing the subjective rights of congregation members.

39

40

See Instrumentum pacis Osnabrugense, in W.G. Grewe (ed.), Fontes Historiae Iuris Gentium: Quellen zur Geschichte des Völkerrechts/Sources Relating to the History of the Law of Nations (Berlin: Walter de Gruyter, 1988), Article v, § 2, pp. 193–4. Thomasius, Adiaphora, pt. i, § 11, pp. 77–8.

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In this case, Thomasius was actually using his new principles for the civil governance of religion in order to perform an act of judicial interpretation on the Treaty of Osnabrück itself, securing its reception within the post-confessional version of Staatskirchenrecht – by contrast with Carpzov who, we recall, had sought to exclude the Treaty. In so doing, Thomasius was demonstrating that his attack on the use of civil power for religious purposes sets no limits on the exercise of this power over the church, as long as this exercise is for secular purposes. On this basis, in part ii of the disputation, Thomasius argues that the prince has the right to introduce the Gregorian calendar in his territory (§ 6);41 regulate the use of church music (§ 7) and church vestments (§ 8), and prevent abuses in the use of religious images associated with superstitious and idolatrous forms of worship (§ 9). Finally, the prince also has the right to abrogate baptismal exorcism, as this too is an indifferent matter subject to his authority; although, in reﬂecting on the disturbances arising on this account in both Saxony and Brandenburg, Thomasius urges that this right be exercised with prudence (§ 11). Thomasius’s reconstruction of the adiaphora doctrine thus formed the nexus for a powerful dual intervention in the domain of constitutional church law. In retrieving the early Lutheran idea of the church as community based on inner faith and brotherly love, he broke the link between true religion and the public church, rendering the former harmless in the civil domain and opening the latter to civil control. He did so, however, principally to remove the levers of civil power from the clergy and to establish the prince’s powers of religious supervision on a secular basis: the preservation of social peace. This was designed to preclude their use for religious purposes while granting them maximum scope. In order to grasp the regional form of Thomasius’s discussion – its character as an intervention in the particular kind of confessional state that had emerged in the Holy Roman German Empire and in a particular form of Protestant Staatskirchenrecht – we can cast a glance at his English contemporary John Locke (1632–1704). Locke’s reordering of the relations between church and state differed from Thomasius’s in two key regards: in refusing to sever the linkage between the free inner pursuit of Christian

41

The Gregorian Calendar, named after Pope Gregory XIII who proclaimed it in 1582, is now general in the Western world. It was religiously contentious as it modiﬁed the earlier Julian Calendar, deleting ten days, in order to align the celebration of Easter with the time agreed to at the Council of Nicaea in 325. Many Protestant territories initially refused to adopt what they considered to be a Catholic invention, only gradually doing so during the course of the eighteenth century.

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truth and the public church; and in regarding the state as a contractual arrangement designed to protect individual freedom and rights. This means that Locke constructed religious toleration on the basis of the natural freedom and rights of individual church members, which guarantee their immunity from state intervention in so far as they conduct themselves within the law. Thomasius, though, did not ascribe public churches any such inherent right of religious freedom, grounding toleration instead in the removal of all religious purposes from the exercise of civil sovereignty. At the same time, however, despite his indebtedness to Pufendorf ’s reception of Hobbes, Thomasius refused to follow Hobbes in allowing the prince to exercise religious supervision in the persona of bishop. In the German setting, the ruler’s double princely-episcopal persona had proved dangerously ambivalent, failing to prevent the exercise of civil power for religious purposes (‘papocaesarism’) and the use of religion as an instrument of political domination (‘caesaropapism’). We will return to this comparison between Thomasius and Locke in Chapter 5. For the moment, it is enough to observe that Thomasius’s reconstruction of church and state arose not from a moral philosophical defence of a dissenting religion, but from a political jurisprudential defence of secular sovereignty. At the heart of Thomasius’s intervention lies not a moral-philosophical uniﬁcation of the normative arena, but a sophisticated disarticulation of moral personae and their normative domains, to which we shall now turn. the prince and the teacher Before the year of 1695 was out, the Adiaphora disputation had drawn a vehement reaction from one of Thomasius’s Leipzig enemies, Johann Benedict Carpzov the younger (1639–99): professor of theology, nephew of the famous jurist Benedict Carpzov, and brother of the preacher to the Saxon court at Dresden, Samuel Benedict Carpzov. Driven no doubt by a mix of personal animosity, family honour and confessional-political commitment, in his De jure decidendi controversias theologicas (On the Right of Deciding Theological Controversies) the theologian sought to attack Thomasius and defend the central doctrines of his uncle. Carpzov drew on the scholastic form of natural law to argue that the prince is responsible for mediating divine law in his civil commands, and is thus a ‘Christian magistrate’ ruling over ‘Christian subjects’.42 Further, he cited 42

Johann Benedict Carpzov, De jure decidendi controversias theologicas (Leipzig, 1695), p. 62.

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speciﬁc Saxon religious edicts in tandem with the Zwei-Personen-Lehre and the Drei-Stände-Lehre in order to show that the determination of theological controversies rested with Lutheran theologians and clergy, with the secular prince restricted to an advisory and executive role: This power [of the magistrate] is thus only external, concerning the conservation of the faith, the appointment of ministers, the convocation of synods, the coercion of heretics, and other acts pertaining to the governance of the church externally considered. This power, though, may not be exercised without the advice of theologians or ministers. This is in part because it is not possessed by the magistrate alone but concurs with the power of the ministers. Further, it is because such exercises of power are generally of the kind that require the knowledge of those to whom the internal power of the church belongs. The magistrate should thus attend to two things. First, he should acquiesce in his external power and not seek to infringe on the internal power of the ministers. Thus we read that when King Uzziah burnt an offering of incense he was stricken with leprosy (2 Chronicles xxvi, 16).43 Second, even in external affairs he must consult the ministers of the church in difﬁcult matters that concern the whole church.44

Carpzov did not have to wait long for Thomasius’s response. In his Das Recht evangelischer Fürsten in theologischen Streitigkeiten (The Right of Protestant Princes in Theological Controversies) of 1696, Thomasius delivered a characteristically combative counter-attack, developing and reﬁning the basic arguments of the Adiaphora disputation into his most important single work in the area of Staatskirchenrecht.45 To recapture some sense of the stakes in what otherwise might look like a modern academic dispute, we can return to the comments on his opponents that Thomasius appended to the new treatise, under the heading: ‘The Jurisconsult Christian Thomasius’s Summary Report and Brief Apology, in response to the many accusations and persecutions with which several Saxon theologians in Dresden, Wittenberg and Leipzig have attacked and defamed him for several years.’ With his characteristic ﬂair for tying the conﬂict over 43

44 45

In this story, the priests warn the king of Jerusalem that as he is not consecrated he may not make such offerings in the temple, whereupon, on failing them to heed them, leprosy immediately broke out on his forehead. Carpzov, De jure decidendi, p. 63. For Carpzov’s use of the Drei-Stände-Lehre, see pp. 51–4, 63–6, 81. In the dedicatory foreword to Paul von Fuchs, the Calvinist nobleman and cabinet minister who was director of the department for religious affairs and president of the Brandenburg Consistory, Thomasius records that had asked Brenneisen to draft the response, which would be based largely on Thomasius’s recent public lectures on de jure principis circa sacra but in part on his student’s own insights. This may well have been in deference to the fact that Brenneisen was a young noble from Esen in East Frisia which was an important military and political ally of Brandenburg. In any case, as the treatise’s title page records Brenneisen as the secondary author, we will follow suit, although we will continue to refer to Thomasius as the source of its central arguments.

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the confessional state to his own personal struggles, Thomasius treats the controversy over the Adiaphora disputation as a direct extension of the machinations that had seen him driven from Leipzig in 1690, when Valentin Alberti, Augustin Pfeiffer and the Carpzov brothers had denounced him to the Dresden Superior Consistory.46 Thomasius’s claims that he ﬂed to Brandenburg in fear of his life are almost certainly exaggerated, but it is clear that the academic conﬂict in which he was engaged was immediately religious and political, focused as it was in the working legal theology of an existing confessional state. Carpzov’s counter-text was thus not the only measure deployed in Saxony against the Adiaphora disputation by ‘our Lutheran popes’, as Thomasius dubbed his opponents. Carpzov himself preached against it from the Leipzig pulpit, while his brother Samuel denounced it at the Dresden court. At the same time, the armed metaphysician, Alberti, again working through the Superior Consistory, succeeded in having the disputation conﬁscated by the Saxon Book Commissariat, together with Thomasius’s new edition of and commentary on Pufendorf ’s Monzambano text.47 Thomasius’s self-involved claims that God had protected him against these enemies and allowed him to ﬂourish in Brandenburg, where he had many students from the nobility and was protected by members of the court, may be taken for what they are worth: as a sign of the traction that his teachings found in a Calvinist state forced to adopt a tolerationist stance in order to govern a multiconfessional society. In identifying the underlying reason for the attack on him, however – namely, that the Adiaphora disputation was a defence of the civil sovereign’s right to political supervision of the church and clergy – Thomasius was indeed pointing to the central stake in the conﬂict. This, says Thomasius, is what drove him to respond to his attackers with a further treatise. It was above all Pufendorf ’s doctrine of multiple moral personae that provided Thomasius with the intellectual ﬁrepower to signiﬁcantly extend and sharpen the arguments of the Adiaphora disputation in the Recht in Streitigkeiten. The central feature of Pufendorf ’s doctrine is that it refuses to derive moral norms from a uniﬁed moral anthropology, whether of the scholastic Platonic kind or Thomasius’s Epicurean form. It attaches such

46

47

Christian Thomasius and Enno Rudolph Brenneisen, Das Recht evangelischer Fürsten in theologischen Streitigkeiten (Halle: Salfeld, 1696), appendix, pp. 245–6. Thomasius and Brenneisen, Recht in Streitigkeiten, appendix, pp. 253–7. Thomasius’s edition of Pufendorf ’s/Monzambano’s De statu imperii Germanici (1667) appeared under the title Scholia continua in textum Severini de Monzambano de statu Imperii Germanici (Halle, 1696).

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norms instead to a plurality of entia moralia, or moral personae, understood as ‘imposed’ for the purposes of governing conduct.48 Contrasting strongly with Thomasius’s Fundamenta in this regard, Pufendorf ’s natural law thus is not a political psychology. It derives ofﬁces – particularly those of priest and sovereign – not from any inner moral quality but from the external purposes for which these persona have been instituted.49 The fact that in his Staatskirchenrecht Thomasius relied on Pufendorf ’s natural law in this regard rather than his own, is a further pointer to the difference between Thomasius’s political psychology and his positive jurisprudence. In this setting, Thomasius could take on board Pufendorf ’s fundamental and radically anti-metaphysical doctrine: that man has no ﬁnal uniﬁed moral identity grounded in a quasi-physical passional nature or a quasidivine reason, and that his moral sense and moral duties attach instead to a variety of specially instituted moral ofﬁces or personae.50 In his De habitu religionis christianae ad vitam civilem (On the Relation of the Christian Religion to Civil Life) of 1687 Pufendorf had used this doctrine to separate church and state into mutually autonomous normative domains – the civil kingdom and the kingdom of truth – inhabited by independent moral personae: the prince and the teacher.51 In this text, with which he had a life-long engagement, Thomasius found the intellectual weaponry needed to destroy all those doctrines that had enabled theocratic church law to embed the powers of the prince in the overarching norms of confessional Christianity. Thomasius’s basic strategy in the Recht in Streitigkeiten is to use Pufendorf ’s multiple personae doctrine to consolidate and elaborate the reconstruction of the concepts of church and state that had been undertaken in the Adiaphora disputation, assigning these concepts to discrete juridico-moral personae. Beginning with the persona of the prince, Thomasius observes that just as private persons have different duties

48

49

50

51

Samuel Pufendorf, De jure naturae et gentium (Lund, 1672). In the modern critical edition, Samuel Pufendorf: De jure naturae et gentium, F. Böhling (ed.), Gesammelte Werke, vols. iv.1, iv.2 (Berlin: Akademie Verlag, 1998), i.i, pp. 13–26. In English, Samuel Pufendorf, The Law of Nature and of Nations in Eight Books, trans. C. H. Oldfather and W. A. Oldfather, vol. ii (Oxford: Clarendon Press, 1934), i.i, pp. 3–21. For more on this, see Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge: Cambridge University Press, 2001), pp. 163–9. For a rare and illuminating discussion of the importance of the conception of ofﬁce to early modern moral and political thought, see Conal Condren, Argument and Authority in Early Modern England: The Presupposition of Oaths and Ofﬁces (Cambridge: Cambridge University Press, 2006). See the English version, Samuel Pufendorf, Of the Nature and Qualiﬁcation of Religion in Reference to Civil Society, ed. S. Zurbuchen (Indianapolis: Liberty Fund, 2002), §§ 29–36, pp. 56–81.

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‘because all men may be regarded in accordance with diverse purposes’ so too the duties of the ruler differ ‘because he can be regarded as a man, as a Christian, and as a prince’. As a man, ‘he is obliged to respect the general law of nature in relation to all men, no matter what their estate’, practising the general law of love, and pretending to no privilege ‘because he has human nature in common with all others’. ‘As a Christian, he is obliged to observe the rules of Christianity and, through proper repentance and acknowledgement of the general misery of the human race, take ﬂight to our Saviour, freeing himself from dead works through true living faith, and seeking his salvation with fear and trembling.’52 In his persona as prince, however, the ruler’s duties are quite different and arise from an entirely discrete normative purpose: As a prince, though, he is bound to preserve external peace and calm among his subjects through appropriate means of coercion. For this teaches him the ultimate purpose on account of which men relinquish their natural freedom in establishing states, subordinating themselves to a superior in those matters that have been deemed necessary for the preservation of the commonwealth.53

The central thing to observe here is that the norms in the different domains are discrete, arising from the diverse purposes for which a particular persona has been instituted. This means that even though a single individual may occupy the personae of man, Christian and prince, he is precluded from invoking the rights and duties attaching to one persona when he is acting in the capacity of another. It is remarkable that the common human nature that founds the entire domain of natural law in Thomasius’s Fundamenta is here restricted to the duties of civility that the ruler owes to others as a private person. This indicates that the duties of the ruler ‘as prince’ are not grounded in natural law in this sense. Departing from the stance that he would continue to maintain in the political psychology of his natural law writings, Thomasius comments that states were not founded to realise the virtues that ﬂow from the inner restraint of the passions, as such restraint can also be achieved without states. The kind of virtue imposed by states is thus the limited sort required by their purpose, of preserving external peace: ‘And because for this ﬁnal purpose it is not necessary that the subjects cultivate virtue with their whole hearts … it is enough for this if they refrain from external vices, to the extent that they disturb external calm.’54 52 53

Thomasius and Brenneisen, Recht in Streitigkeiten, iii, § 1, p. 26. Ibid., iii, § 1, p. 27. 54 Ibid., iii, § 1, p. 27.

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It is the disarticulation of the personae of the Christian and the prince that is most striking, however, in showing the truly radical character of Thomasius’s secularisation of the political and legal domain. The persona of the prince is determined by the purpose of mutual protection for which men establish the relation of external coercion between superior and subject. The persona of the Christian, however, is determined by the end of salvation, which depends upon the utterly non-coercive relations of love and admonition linking teacher and community in the true invisible church.55 This means that the ruler may not bear his princely persona in the church – where he is merely one teacher or auditor among others – so that civil power may not be exercised for religious purposes, regarding which the prince has no capacity to act. Indeed, the ruler ‘as prince’ is not a member of the church, as this ofﬁce has no standing there. The secular character of this ofﬁce means that pagans can be legitimate princes, thereby turning the notion of the ‘Christian magistrate’ into an oxymoron. At the same time, however, it is illegitimate for the Christian to bear his teacherly persona in the political domain, seeking to enforce Christian teaching by enlisting civil power to coerce consciences, as this transgresses the duties of the teaching ofﬁce by confusing them with those of the prince. If it is impossible for the prince to be a member of the church, then it is equally so for the clergy to occupy the position of civil superior, as there are no subjects in the church only brothers in Christ. Having assembled his intellectual weaponry, Thomasius proceeds to turn it on the central doctrines employed in Carpzov’s attack on the Adiaphora disputation: the Drei-Stände-Lehre and the Zwei-PersonenLehre. Carpzov is wrong to claim that the church consists of the magistracy, clergy and subjects, as it is a community of believers consisting only of teachers and auditors bound together by love. Citing Pufendorf ’s De habitu as his authority, Thomasius continues: All the other regards in which men are otherwise held, cease here. Just as it would be absurd if one sought to divide the Christian church – where noble and nonnoble persons stand in spiritual community – into the noble and non-noble, so it is equally inept if one were to say that the Christian church consists of the magistracy, teachers and subjects, because such moral entities are not considered in the Christian church. For the ﬁrst and last [magistrates and subjects] are persons that, when they are regarded as members of the Christian church, relinquish this regard and purpose, in that these belong only to the secular state, being regarded in the church only as auditors.56 55

Ibid., iii, § 2, p. 28.

56

Ibid., v, § 7, p. 43.

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There are thus no subjects in the church who might be ascribed a special right with regards to theological controversies. This allows Thomasius to deny the putative right of the congregation not to be scandalised by the prince’s reform or abrogation of adiaphora. Similarly, the clergy have no quasi-aristocratic right in the church to settle such controversies, as here their ofﬁce is that of a teacher who works through love not right, while in the secular state their status is that of subjects under the authority of the prince. As far as the prince is concerned, it is erroneous to regard him as a member of the church in part because this is to grant him some power there, and in part because this allows his power to be abused by the clergy for religious purposes.57 According to Thomasius, the confusions introduced by the Drei-Stände-Lehre have resulted in a widespread failure to understand that the church is an association within the state without being a part of the state. Above all, these confusions have supported the disastrous view that the prince has a duty to care for the salvation of his subjects, thereby failing to heed the restriction of civil sovereignty to the purposes of external peace, and opening the door to the coercion of consciences and the cruellest of persecutions and wars in the name of religion.58 ‘On this basis’, says Thomasius, ‘we can clarify the common public law doctrine that Protestant princes in Germany represent two persons in government, namely an episcopal and a princely, the former in religious affairs, the latter in secular.’ The Zwei-Personen-Lehre is unacceptable because it leads to a division of sovereignty. While the individual occupying the ofﬁce of prince may also occupy other ofﬁces – those of the man and the Christian – the rights of the prince are indivisible and are exercised in a single persona: ‘All rights that a prince has in the governance of his subjects he has as prince, and these are bound together indissolubly, such that if one wished to remove some of them, a majesty would arise that was imperfect and insufﬁcient for the government of subjects.’59 Thomasius remarks that even though it was the means by which the Treaty of Augsburg had granted Protestant princes the jus reformandi, this doctrine that they represented the double personae of bishop and prince amounted to the recognition of two jurisdictions within the state: the ecclesial and the secular. As a result, he continues, Protestant consistories were treated as religious courts, similar to canon-law courts, in which the clergy determined decisions and in which the prince’s secular jurists played only an advisory and executive role. More generally, the Zwei-Personen-Lehre

57

Ibid., v, § 8, pp. 45–7.

58

Ibid., v, § 1ff., pp. 33ff.

59

Ibid., v, § 11, pp. 53–4.

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was responsible for the division of ecclesial powers into inner and outer. This is the distinction that Carpzov invoked to exclude the prince from the settling of theological controversies, except for administering coercion to those found to be heretical. Once it is seen, though, that all of the prince’s rights and powers come from his ofﬁce in preserving external peace, then ‘it is not necessary to make two different kinds of jurisdiction, because the consistories derive their entire jurisdiction from the prince, no differently to other territorial colleges’.60 Revisiting the ground that he had attempted to cover in the Institutiones jurisprudentiae divinae – by giving secular jurists the right of scriptural interpretation – Thomasius comes to a more effective solution: the consistories are to be treated as wholly secular institutions representing the prince’s civil jurisdiction over ecclesial affairs. Thomasius is now in a position to resolve the central question at issue between him and Carpzov: the prince’s right in settling religious controversies. In the ﬁrst place, he argues, we should give up seeking unity of religion in the form of a single body of theoretical doctrines such as those taught in public creeds like the Formula of Concord.61 True religion does not consist in the intellect’s theoretical opinions – which are quite incapable of grasping God’s mysterious nature – but in the simple faith of the will conformed to the teachings of brotherly love. It is thus both vain and illegitimate for theologians and church councils to attempt to resolve conﬂicts between opposed theoretical opinions by imposing an orthodox doctrine or creed. This is in part because, as matters of the understanding, theoretical opinions about religion cannot be coerced, but more importantly because true religion does not consist in theoretical opinions but in ‘simple active faith’ and the demonstration of brotherly love. At the level of the religious community, then, the resolution to longstanding and blood-soaked controversies – over the relation between Christ’s two natures and one person, and the nature of his presence in the Eucharist – lies in the adoption of mutual toleration between those holding irreconcilable doctrinal viewpoints.62 In this regard, in his persona as a Christian, the ruler is in the same position as all other members of the church, engaging in mutual toleration over doctrinal differences and pursuing his own inner salvation. He must on no account, though, seek to decide a religious dispute by issuing a legal judgement – as such judgements pertain only to his powers in maintaining external peace – and he must eschew all use of his princely powers to enforce a particular confession: ‘If the prince is a Christian then he

60

Ibid., v, § 13, p. 58.

61

Ibid., i, 1ff., pp. 7ff.

62

Ibid., ii, 1ff., pp. 12ff.

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is bound to know the ground of his salvation and thus to familiarise himself with true theology. But with regard to what he holds to be true in religious controversies, he has no right to compel others to hold this for true, for this [right] does not belong to him either as a prince or as Christian. The former quality pertains to external peace to which these controversies do not belong, but the latter gives him no right to coerce others.’63 At the same time, however, Thomasius argues that the entire history of the Reformation shows that ambitious and power-hungry clergy have indeed attempted to enforce particular confessional doctrines, enlisting princely support to do so, and giving rise to the dreadful catastrophe of the Thirty Years War: ‘Experience shows what can happen when the hot-heads fall out, and through their [so-called] reasonable sermons embitter the minds of their listeners from the pulpit.’ Notwithstanding the impropriety of a prince intervening in a theological controversy to compel the acceptance of a particular opinion, it is entirely proper for the prince to step in when such controversies threaten external peace – indeed it is his duty – as long as he does so without regard to theological truth: ‘With the emergence of theological controversies, the prudent prince takes care that he compels no-one to accept a particular opinion. If, though, the parties attempt to carry the day through force, then he attends to his duty and ensures that the external peace is not disturbed, in which case the truth will possess enough of its own power to come through, and to discredit the lies.’64 With this separation of peace from truth, the prince from the Christian, Thomasius carries his secularisation of politics and law to its highest point, articulating a political conception of toleration as a right possessed by the prince or state to enforce religious peace. At the political level, then, it is the prince who exercises the right of toleration, which he does against intolerant religious communities. concluding remarks: toleration as the prince’s right Those commentators who have argued that Thomasius’s construction of religious toleration is a major step towards an enlightened modernity, based on respect for subjective rights and individual freedoms, have done so by presuming that his work in Staatskirchenrecht is grounded in the moral anthropology of his natural law doctrines.65 Focusing on those parts 63 65

Ibid., vii, § 5, p. 82. 64 Ibid., xi, § 1, pp. 145–6. See Klaus-Gert Lutterbeck, Staat und Gesellschaft bei Christian Thomasius und Christian Wolff: Eine historische Untersuchung in systematischer Absicht (Stuttgart: Frommann-Holzboog, 2002), p. 20. Martin Kühnel, Das politische Denken von Christian Thomasius: Staat, Gesellschaft, Bürger

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of the Adiaphora and Recht in Streitigkeiten treatises that stress the immunity of the understanding from coercion, these commentators have concluded that Thomasius sees toleration in terms of rights that the prince must respect because they are embedded in the inner domain of conscience and intellect, or that he should see it in this way. Those aspects of Thomasius’s construction of toleration that do not ﬁt this picture are treated as authoritarian residues of his historical location in an absolute state. Such commentary, however, obscures the truly distinctive character and purpose of Thomasius’s work in Staatskirchenrecht. In the ﬁrst place, we can observe that while Thomasius does indeed urge the ruler to engage in mutual toleration with those holding divergent theoretical opinions, this applies only to the ruler in his persona as a Christian. In this persona, as a member of the church, the ruler should give up the vain pursuit of unity of theological doctrine and, like all other Christians, focus on the defects of his own will, seeking grace through inner faith, and practising brotherly love.66 This is the context in which Thomasius insists on the vanity of all attempts to coerce the understanding, whose futility arises in part because matters of the understanding are incapable of being forced, and in part because true religion is not a matter of knowledge and understanding but of faith and will.67 The target of Thomasius’s admonition in this regard is thus not the prince, however, but those who insist that religion consists in theoretical doctrines that must be forced on dissident members of the church in order to save them: namely, the theologians and clergy, especially those seeking to impose that ‘coercive book’ (Zwangs-Buch), the Formula of Concord.68 The ruler is subject to Thomasius’s admonition only indirectly, to the extent that he has been seduced by the clergy into thinking that the salvation of his subjects is a princely duty, thereby leading to an abuse of his princely ofﬁce. This abuse of ofﬁce, however, does not arise from the infringement of a subjective right to freedom of conscience or religion. It is a major point of his difference from such thinkers as Locke, Spinoza and Kant that for Thomasius there is no such right. For Thomasius rights attach only to the political personae of prince and subject – state and citizen – where they arise as strict juridical capacities from the laws issued by a sovereign in order to

66 67

(Berlin: Duncker & Humblot, 2001), pp. 113–15. For a different viewpoint, see the illuminating discussion of Thomasius’s conception of toleration in Matthias J. Fritsch, Religiöse Toleranz im Zeitalter der Aufklärung. Naturrechtliche Begründung – konfessionelle Differenzen (Hamburg: Felix Meiner, 2004), at pp. 48–65. Thomasius and Brenneisen, Recht in Streitigkeiten, i, § 3, pp. 15–16; iv, § 1, p. 29; vi, § 4, p. 68. Ibid., v, § 9, p. 50. 68 Ibid., ix, §§ 2–4, pp. 127–34.

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preserve the domestic peace and external security of the state. Individuals are not subjects of right in their religious persona, Thomasius argues, as rights pertain only to the juridical regulation of external conduct. It is for this reason – not because of the existence of a subjective right – that it is improper to attempt to control inner faith and understanding juristically, through the administration of oaths, for example: ‘What good is it to attempt to bind somebody’s understanding to certain propositions? Or to demand an oath from him? To attempt to force matters belonging to the understanding is a completely misshapen undertaking.’ This is because oaths and the rights they secure only arise between individuals whose external conduct can give rise to mutual injuries, that is, to individuals in their civil personae, which does not pertain to the religious sphere and its personae: ‘If, however, an individual has no right in relation to me that I am capable of infringing, then I can require no oath from him, or, if I do, then I have sworn him improperly and without proper cause. But in religion no man has a right over another by virtue of which he could be injured by him.’69 It is, therefore, not the presence but the absence of rights in the religious sphere that makes coercion improper, as in the spiritual community of the invisible church mutual injury is impossible. Even though they have a moral duty to tolerate each other, toleration as a right does not belong therefore to individuals as Christians, but to the only agent capable of defending them against coercion by exercising coercion. Toleration as a right thus belongs to the prince alone. In exercising it on behalf of religious dissenters he is not attempting to respect their freedom of conscience and understanding, for that is something that he can only do in his powerless capacity as a fellow Christian. Rather, his purpose is to prevent their clerical persecution from threatening the stability of the state, which is the true basis of this right: The pre-eminent regalian right that a prince possesses in relation to religion is the right to tolerate dissenters, and to protect them against anti-Christian persecutors. Consequently, when fractious clergymen revoke this toleration and wish to introduce coercion of conscience, a prince is bound to fulﬁll his right and punish those who would hinder him in its exercise, because in doing so they transgress both Christianity and natural law, which teach that no-one should be persecuted on account of their religion.70

Thomasius’s goal is thus not the moral-philosophical one of defending the rights of the subject of truth against the exercise of state power. 69

Ibid., xiv, § 3, p. 171.

70

Ibid., xiv, § 1, p. 167.

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Instead, it is a no less consequential objective arising from the historical circumstances in which he found himself: namely, to displace the prince’s constitutional-legal ius reformandi with a ius tolerandi, and in so doing change the face of Protestant Staatskirchenrecht. The right of toleration is thus constructed as a political right of the state over its churches. Its central requirement is that the prince ‘abstract’ from the issue of religious truth, seeking neither to impose this on individuals nor to defend their right to it, but acting solely to maintain civil peace. The central premise of Thomasius’s toleration doctrine is not that a political society might one day arise in which all will practice mutual forbearance and respect for conscience, for that is a vision that pertains only to the church and its members. His view, rather, is that in enforcing toleration as a right based on the preservation of social peace, and without regard to religious truth, the prince will remove the public churches from the political arena and reconstitute them as objects of a purely secular civil supervision. The state is only a remedy against human malice – in this case clerical intolerance and religious persecution – and is never a means to human freedom, which lies elsewhere. In Thomasius’s discussion of the twin religious controversies in the Adiaphora disputation – regarding the forcible conversion of the Jews, and the Catholic prince’s right to abrogate a Lutheran hymn – we saw that the toleration counselled in the ﬁrst case and the suppression defended in the second had the same basis: the prince’s duty to maintain the religious peace and to restrict his commands to that duty. If a right of religious freedom was not the basis of toleration in the ﬁrst case, then no such right was infringed in the second. The fact that Thomasius’s right of toleration also involves an exercise of coercion that restricts ‘natural freedom’ thus is not a result of him failing to fully respect the subjective rights of individual Christians. Rather, it signiﬁes that this right is not founded in such respect, but in the prince’s duty to ensure that religious disputes do not endanger civil peace, which would infringe the rights of individuals as political subjects. Even though it is the ‘fractious clergy’ who are most in need of restraint from disturbing the peace, there will nonetheless be occasions on which dissenters too will be rightly compelled to desist from conduct tending in this direction. Both possibilities are realised in Thomasius’s discussion of the toleration of heresy, as we shall now see.

ch ap te r 5

The toleration of heretics

The crime of heresy was an indelible marker of the confessional state. It represented the key suture point between religious deviation and criminal delinquency, pointing to the superimposition of the Eucharistic and civil communities. In concluding our study with a discussion of Thomasius’s arguments for the toleration of heretics, we thus have a ﬁnal opportunity to view his campaign against the confessional state working at full strength. This discussion will also serve as an introduction to our translation of one of his two key disputations on heresy, the De jure principis circa haereticos (On the Right of the Prince regarding Heretics) of 1697, which is presented in the appendix. It will be clear from the preceding chapter that Thomasius’s construction of the right of toleration differs markedly from the Lockean and Kantian conceptions that dominate modern thought on this topic. We have seen that Thomasius restricts the right of toleration to the prince or state whose duty it is to coerce those who threaten social peace through their religious intolerance; and he simultaneously treats individual freedom of conscience as a non-justiciable moral matter lying outside the political domain. It is this view of toleration in terms of the state’s power to impose a political obligation that makes Thomasius’s conception so foreign to modern philosophies of toleration – although not necessarily to the modern politics of toleration – and thus warrants the following discussion and translation. It will be recalled that in Thomasius’s account political subjects do not have religious rights based on freedom of conscience, because this freedom belongs only to the persona of the Christian. Christians enjoy freedom not as a coercible right – something foreign to the spiritual community – but only through freedom of spirit and the relations of brotherly love. The rights that subjects do have with regards to public religion – to formulate and preach a confession without being persecuted by those adhering to other confessions – are not subjective and inalienable, but derivative of the prince’s right or duty to tolerate dissenters. Public religious rights are thus not based in the inner freedom of the spirit but in the prince’s duty to 142

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compel rival religious communities not to molest each other. In other words, religious rights arise from public law – principally the provisions of the Treaty of Westphalia – and from the prince’s right and capacity to coerce those who attempt to coercively impose their confession on others, but only to the extent that he exercises this without regard to religious truth or falsity. In Thomasius’s account, the prince’s ius tolerandi ﬂows not from his respect for freedom of religious conscience as such – for ‘as prince’ the ruler has no relation to religious truth or conscience – but from his duty to preserve social peace through the coercive enforcement of laws. This is a pointer to the fact that for Thomasius it is not the state as such – the ‘prince as prince’ – that is a danger to religious freedom, but the state in its confessional form, as the executive arm of an intolerant church. In a broader discussion of toleration as religious freedom, Horst Dreitzel has argued that this arose from the gradual juridical empowerment of the idea of Christian freedom, in the context of the early modern confessional state.1 Rejecting the ‘legend’ that the absolute state tends of itself towards secularity and toleration, Dreitzel focuses on a crisis driven by states that were both absolute and confessional. In Protestant Germany this crisis was manifest in the clash between a spiritualist conception of the religious community based on inner faith and brotherly love, and a political culture wedded to the notion that stability of the political community depends on enforcing a single religion. Brought to a head by the carnage of the Thirty Years War, this crisis spawned two initial responses: the ‘political’ toleration of heretics as the lesser of two evils, when extirpating them was too costly to one’s own confession; and the development of minimalist ‘syncretistic’ versions of religion in which most articles of faith are treated as adiaphora. According to Dreitzel, the shift to the ‘modern’ conception of toleration, in terms of the rights of the tolerated, came from neither of these sources but, in the ﬁrst instance, from debates surrounding imperial public law (Reichspublizistik). Here such measures as the right of religious emigration (granted by the Augsburg Treaty), and the distinction between private and public religion associated with the ius reformandi, went some way towards converting the theological notion of Christian liberty into a legal conception of a right to religious freedom.2 The true construction of

1

2

Horst Dreitzel, ‘Gewissensfreiheit und soziale Ordnung. Religionstoleranz als Problem der politischen Theorie am Ausgang des 17. Jahrhunderts’, Politische Vierteljahresschrift 36 (1995), 3–34. Horst Dreitzel, ‘Toleranz und Gewissensfreiheit im konfessionellen Zeitalter. Zur Diskussion im Reich zwischen Augsburger Religionsfrieden und Aufklärung’, in D. Breuer (ed.), Religion und Religiosität im Zeitalter des Barock (Wiesbaden: Harrassowitz, 1995), pp. 115–28, at 123–7.

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religious freedom as a subjective right, however, had to await such Enlightenment thinkers as John Locke and Pierre Bayle. They rejected the state’s right of religious supervision by insisting that true religion consists in the inner individual pursuit of salvation in a non-coercive faith community. Dreitzel is under no illusion that a subjective right of religious freedom can be found in Thomasius. He treats the absence of this right, however, as symptomatic of Thomasius’s failure to follow the moderns in conceiving of public churches as civil associations with rights against the territorial sovereign.3 This was due in part to Thomasius’s ‘monomanic’ anti-clericalism, and in part to the eclectic mixture of radical religious individualism with his ‘statist’ treatment of the adiaphora, which left him stranded at the threshold of modernity. It is true of course that Thomasius did not ground his conception of toleration in subjective rights against the prince. This does not mean, however, that Thomasius lacked means for constructing public religious rights for political subjects, or that he had no way of setting limits to the prince’s right of religious supervision. Dreitzel’s argument overlooks the degree to which Thomasius’s sophisticated use of Pufendorf’s multiple personae doctrine allowed him to develop his own solution to the conﬂict between Lutheranism’s radical religious inwardness and the challenge of achieving political stability in multiconfessional societies. We have seen that Thomasius treated Christian freedom as something enjoyed only in the ‘invisible church’ and only in the persona of the Christian. This allowed him to construct a defence against coercive confessionalisation on the basis of its intrinsic futility – given the inward and non-coercible character of true religion – without converting this spiritual freedom into a juridical right and making it coercive against the prince. At the same time, he was able to provide juridical rights for the defence of public churches by treating them as correlates of the prince’s duty to prevent the sectarian persecution of one church by another. This in turn entailed the prince’s indifference to religious truth, as the means of precluding the ruler’s own proclivity for religious repression. Thomasius’s ‘absolutist’ view of the prince’s right of religious supervision was thus not the product of some kind of cultural lag or personal foible. It was the direct product of his political secularism. In fact his 3

Horst Dreitzel, ‘Christliche Aufklärung durch fürstlichen Absolutismus. Thomasius und die Destruktion des frühneuzeitlichen Konfessionsstaates’, in F. Vollhardt (ed.), Christian Thomasius (1655–1728). Neue Forschungen im Kontext der Frühaufklärung (Tübingen: Niemayer, 1997), pp. 17– 50, at 44–50.

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refusal to ground public religious rights in inner spiritual freedom and his attack on the religious coercion of the confessional state have the same source. Both arise from his relegation of the idea that the state should care for the conscience of its citizens in favour of the idea that it should be restricted to the purpose of maintaining social peace. This solution was not without difﬁculties, of course, not least when it came to determining at what point the expression of Christian freedom in public might give rise to a political right to be defended from persecution. This is the problem posed by the presence of public dissenters or heretics, to which we shall now turn. Sufﬁce it to say, for the moment, that we have no warrant for excluding Thomasius’s solution – his separation of the Christian and the citizen, the subject of truth and the subject of rights – as if this failed to cross the threshold of modernity formed by the recognition of subjective rights. It is more likely that Thomasius’s solution represents the construction of a different threshold for a different conception of modernity, so that our problem lies in determining which (if either) we inhabit.

the crime of heresy If Thomasius’s construction of toleration is not concerned with defending the public rights of churches and their members against the state, that is because it was designed to confront a quite different problem: that of a public church embedded in the apparatus of a state and using it to enforce confessional uniformity. Heresy law in sixteenth- and seventeenth-century Protestant confessional states was a symptom of this state of affairs, as was its juridical twin, witchcraft law. In attacking heresy law, Thomasius was thus continuing his campaign against the Protestant confessional state, Saxony in particular, targeting the key point at which religious heterodoxy crossed the threshold from sin to punishable crime. The crime of heresy is a pointer to the long symbiosis of law and religion in the Christian West, whereby the religious community was policed through the reception of Roman law concepts and statutes in the church’s canon law.4 The elements of the early modern crime were assembled during the twelfth and thirteenth centuries, in the course of the church’s struggles against the great medieval heretical movements of Catharism and Manichaeism. It was at this point that Augustine’s theological deﬁnition of 4

For an overview, see Antonio Padoa-Schioppa, ‘Hierarchy and Jurisdiction: Models in Medieval Canon Law’, in A. Padoa-Schioppa (ed.), Legislation and Justice (Oxford: Oxford University Press, 1997), pp. 1–15.

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heresy – as the obstinate persistence in erroneous beliefs – was freshly juridiﬁed by the commune jurists of Northern Italy. They responded to the inefﬁcacy of existing proceedings – in which oaths testifying to heresy could be neutralised by counter-oaths – by developing an inquisitorial procedure and by incorporating the Roman law crime of laesae majestatis (violation of majesty) into the construction of the delict. This transformed heresy into a capital crime and brought with it the Roman practice of judicial torture.5 Henceforward, heresy was legally constructed as a crimen laesae majestatis divinae, a crime of violation of divine majesty. This construction superimposed the image of the Roman emperor on the Christian God in a simulacrum of offended majesty suited to the defence of the Roman church. On this basis, a legal process developed that was initiated by denunciation of the heretic, required oaths of veridiction from both plaintiff and defendant, deployed inquisitorial procedure, permitted the use of torture to obtain evidence and confessions, denied appeal and could issue in a death sentence.6 Viewed increasingly as a form of apostasy, the crime of witchcraft developed in tandem with that of heresy. A good deal of this construction was embodied in Emperor Charles V’s criminal code for the Holy Roman German Empire – the Constitutio Criminalis Carolina of 1530 – which formed a common juridical context for both Catholic and Protestant territories during the sixteenth and seventeenth centuries. In 1635 Benedict Carpzov published what would become the most important and widely used handbook of criminal law in Protestant Germany, the Practica nova imperialis Saxonica rerum criminalium (New Imperial Saxon Practice of Criminal Law). This is a work of some 1,200 pages, divided into three parts: the ﬁrst dealing with the nature of crime and punishment as such, together with crimes against the person; the second with crimes against things; and the third with inquisitorial procedure, on which it was the standard work well into the eighteenth century. The Practica nova drew heavily on Carpzov’s thirty-eight-year service as senior or presiding judge of the Leipzig Schöffenstuhl, which was the most important of all the Saxon Spruchkollegien, or bodies responsible for rendering legal judgements. In 1574, Elector August (1553–86) had decreed that local judges had to send the ﬁles for all criminal cases to the Leipzig Schöffenstuhl for processing and 5

6

Winfried Trusen, ‘Rechtliche Grundlagen des Häresiebegriffs und des Ketzerverfahrens’, in S. S. Menchi (ed.), Ketzerverfolgung im 16. und frühen 17. Jahrhundert (Wiesbaden: Otto Harrassowitz, 1992), pp. 1–20, at 4–7. Trusen, ‘Rechtliche Grundlagen’, pp. 8–9.

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assessment.7 Here a panel of expert jurists or Schöffen, sitting as a central legal bureau, would render judgement on them before sending them back to the local judges who would pronounce it, once the judgement had been cleared by the royal court at Dresden. The Leipzig Schöffenstuhl thus played a key role in the state-building programme of the Saxon electoral princes by permitting them to centralise jurisdiction in their own court system, and to establish uniformity of judgement via an institution that assimilated a variety of legal sources – local common law (the Sachsenspiegel ), consistorial law, the Carolina, imperial public law and Romano-canon law – in a single judicial practice. As we noted in Chapter 4 with regard to Carpzov’s consistorial law, this practice had a strongly theocratic orientation, both in the way that it conceived of civil law as the prince’s duty-bound enactment of divine biblical law, and in its incorporation of such central Lutheran doctrines as the Zwei-Personen-Lehre and the Drei-Stände-Lehre. This set of arrangements is also indicative of how tightly the two law faculties (of Leipzig and Wittenberg) were integrated into the legal architecture of the Saxon confessional state. Not only did they supply the legal doctors who staffed the Schöffenstühle, but the faculties themselves functioned as Spruchkollegien for the lower courts. The ﬁles suggest that under Carpzov’s direction the Leipzig Schöffenstuhl regularised the use of inquisitorial torture and delivered many death sentences – some of them in witchcraft cases – although the scale remains in dispute.8 Carpzov’s speciﬁcation of the kind of crime involved in heresy is an example of the direct integration of Romano-canon law in the Practica nova: It is well known that majesty is double, divine and human. Thus, crime against majesty is double: the ﬁrst, where human majesty is injured, is the kind called the crime of violation of majesty … The second, insofar as it is committed against divine majesty, and is commonly called heresy, is graver than the ﬁrst as God is greater than the emperor, although they may be compared in many things.9

7

8

9

Heiner Lück, ‘Benedict Carpzov (1595–1666) und der Leipziger Schöffenstuhl’, in G. Jerouschek, W. Schild and W. Gropp (eds.), Benedict Carpzov: Neue Perspektiven zu einem umstrittenen sächsischen Juristen (Tübingen: Diskord, 2000), pp. 55–72. Thorsten Sellin, ‘Two Myths in the History of Capital Punishment’, Journal of Criminal Law, Criminology, and Police Science 50 (1959), 114–17. See also Sönke Lorenz, ‘Benedict Carpzov und die Hexenverfolgung’, in Jerouschek et al. (eds.), Benedict Carpzov, pp. 91–109; and Günter Jerouschek, ‘Aufgeklärtes Strafrechtsdenken unter der Geltung des Inquisitionsprozesses’, in H. Rüping (ed.), Die Hallesche Schule des Naturrechts (Berlin: Peter Lang, 2002), pp. 77–94. Benedict Carpzov, Practica nova imperialis Saxonica rerum criminalium (Frankfurt, 1635), pt. i, qu. xliv, § 1.

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Tapping into the deep-seated cultural and theological bases of the Christian horror of heretics, Carpzov stipulates that heresy is the gravest and most atrocious of crimes because it is against our common father and lord, and because it threatens to pollute the whole of Christian faith, thereby jeopardising mankind’s salvation (§ 2). The theological contents of the juridical construct are no less apparent in Carpzov’s incorporation of Augustine’s deﬁnition of heresy within his deﬁnition of the crime: ‘I thus call heresy an obstinate error in the articles of faith’ (§ 4). Clarifying the key terms in accordance with his judicial craft, Carpzov speciﬁes that not all errors are heretical, only those against the fundamental articles of faith. Neither are all who err heretics, only those who are members of the church and who do so ﬂagrantly and wickedly. This means that Jews and Mohammedans are immune – they are inﬁdels not heretics – and so too theologians and politici arguing in good faith, as well as those who keep their heterodoxy to themselves. A heretic can thus be described as a ‘person within the bosom of the church who obstinately and wickedly attacks some article of faith, either directly or indirectly, not without offence to the church’ (§ 7). In dealing with heresy, the magistrate or prince ‘ought to exercise the diligent care required to ensure that a pure exercise of divine worship ﬂourishes, and is neither corrupted by false prophets, nor inverted, but that heresy is utterly exterminated’ (§ 8). Carpzov exempliﬁes his conception of the theocratic state in his account of the double duty of the prince: ‘And, truly, just as the magistrate ought to take care of the civil welfare of his subjects, in order that right ﬂourishes in the republic in accordance with law, so he ought to take care of his subjects’ spiritual welfare, in order that pure religion ﬂourishes in the church in accordance with the word of God’ (§ 11). This sacral state is not generic, however, appearing rather in the speciﬁc form made available to Protestants by the Treaty of Augsburg and its immediate precursor, the Peace of Passau (1552). As we have already seen, a constitutive feature of this state-form was that ecclesial jurisdiction is not exercised indirectly on behalf of the pope, but directly by the Protestant prince, in his persona as bishop: ‘Indeed, the provisions of the Treaty of Passau are clear that Catholic bishops are not to exercise ecclesial jurisdiction against the members of the Augsburg Confession, [and that] episcopal rights in the provinces of the Protestant estates attach not to bishops independently but to the prince and magistrate, possessing territorial rights.’ Demonstrating the positive-legal reception of the Lutheran Zwei-Personen-Lehre, Carpzov stipulates that it is the dual episcopal-princely persona that allows the Protestant magistrate to act against heresy: ‘Whatever thus pertains to episcopal rights, among which not

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least is the care of religion and divine worship, keeping it thus pure from all heresy and falsity, Protestant magistrates solemnly exercise these in their territories’ (§ 18). Carpzov acknowledges that there is much in Scripture and theology arguing against the use of coercion in religion, so that heretics who commit no other offences should ﬁrst be admonished, then excommunicated, before being deported as a last resort. Those, however, who are also seditious and violate civil peace, or else publicly blaspheme against the Trinity, must receive capital punishment, as was rightly inﬂicted on the ‘monstrous’ (anti-Trinitarians) Valentino Gentile in Bern and Miguel Servetus in Geneva (§§ 41–2). Carpzov’s legal construction of the crime of violation of divine majesty deﬁnes not just heresy in the strict sense, but an array of linked crimes: blasphemy, prevarication, apostasy, simony, divination and, above all, witchcraft, which he treats as an heretical worshipping of the devil, characterised by apostasy and blasphemy.10 These offences criss-crossed ecclesial and secular jurisdictions, binding them together in accordance with the fundamental doctrines of a theocratic Staatskirchenrecht. This created a broad net for the excommunication of heretics – their banning from communion and the circle of communicants – an ecclesial punishment with signiﬁcant civil liabilities attached in the areas of ofﬁce-holding and testamentary and inheritance rights. Once Saxony had adopted the Formula of Concord as its ofﬁcial confession in 1580, all those holding ecclesial and civil ofﬁce had to swear their adherence to the ‘four articles’ – pertaining to the Eucharist, Christ’s two natures and one person, baptism and predestination (general not special) – which remained the case until the beginning of the nineteenth century.11 These articles are a good indicator of the legally enshrined orthodoxy that deﬁned heresy. Peaking in the ﬁrst half of the seventeenth century, the high-point of heresy and witchcraft prosecutions had passed by the time of Thomasius’s disputations on these topics in the 1690s. Nonetheless, Carpzov’s handbook remained inﬂuential as a general framework for positive law in Protestant confessional states. In taking the construction of heresy in the Practica nova as a prime target of his heresy disputations, Thomasius was thus launching a frontal attack on the theocratic form of criminal law with a view to dismantling its political and theological framework: the Protestant sacral state as it had emerged between the two treaties, of Augsburg (1555) 10 11

See Carpzov, Practica nova, pt. i, qu. l. Günther Wartenberg, ‘Benedict Carpzov als lutherischen Jurist’, in Jerouschek et al. (eds.), Benedict Carpzov, pp. 257–64, at 258.

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and Westphalia (1648). The problem he faced thus was not how to defend the subjective rights of heretics, but how to undo the legal construction of the crime of heresy – that is, the construction of heterodoxy as both sin and crime that had arisen from the superimposition of spiritual and civil authority in the Lutheran confessional state.12 This would be achieved not by defending the rights of a coerced truth, but by removing truth from the ends of political coercion. is heresy a crime? The ﬁrst of Thomasius’s heresy disputations, An haeresis sit crimen? (Is Heresy a Crime?), was defended at Halle by another of his doctoral students, Johann Christoph Rube, in July 1697.13 Before the year was out the second heresy disputation had appeared, followed in 1699 by a further defence of the prince’s sovereign rights of religious supervision,14 and Thomasius’s celebrated disputation on sorcery and witchcraft in 1701.15 We have already noted that the Adiaphora disputation and the Recht in Streitigkeiten treatise had been published in 1695 and 1696 respectively. The heresy disputations thus formed part of a barrage against the juridical framework of the Lutheran confessional state. Thomasius also found the time, though, to publish his excursion into anti-scholastic hermeticneoplatonic natural philosophy – the Versuch vom Wesen des Geistes (Essay on the Nature of Spirits)16 – and, in 1699, to bring out a new and retitled edition of his father’s key work on the history of philosophy and theology, the Schediasma Historicum, for which he wrote a foreword.17 The fact that this historiography is central to the heresy disputations is a pointer to its role as the key point of intellectual articulation between Thomasius’s 12

13

14 15

16 17

This is a reminder that judicial neutrality in religious matters depends not on the personal impartiality of jurists, but on the secularisation of the judicial system. For more, see David Saunders, ‘The Judicial Persona in Historical Context: The Case of Matthew Hale’, in C. Condren, S. Gaukroger and I. Hunter (eds.), The Philosopher in Early Modern Europe: The Nature of a Contested Identity (Cambridge: Cambridge University Press, 2006), pp. 140–59. This was translated into German as Ob Ketzerei ein strafbares Verbrechen sei? in 1705, for publication in Thomasius’s Auserlesene deutsche Schriften (Halle, 1705; repr. Hildesheim, 1994). I will cite from the English version, ‘Is Heresy a Punishable Crime?’, in Ian Hunter, Thomas Ahnert and Frank Grunert (eds. and trans.), Christian Thomasius: Essays on Church, State, and Politics (Indianapolis: Liberty Fund, 2007), pp. 148–206. Christian Thomasius, Vindiciae juris majestatici circa sacra (Halle, 1699). Christian Thomasius, De crimine magiae (Halle, 1701). Now in English as ‘On the Crime of Sorcery’, in Hunter, Ahnert and Grunert (eds. and trans.), Christian Thomasius: Essays on Church, State, and Politics, pp. 207–54. Christian Thomasius, Versuch vom Wesen des Geistes (Halle, 1700; repr. Hildesheim, 2004). Christian Thomasius (ed.), Jacobi Thomasii origines historiae philosophicae et ecclesiasticae (Halle, 1699).

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critique of Schulphilosophie, his natural law writings and (now) his public law jurisprudence. Is Heresy a Crime? makes no fundamental additions to the framework for a secular Staatskirchenrecht elaborated in the Recht evangelischer Fürsten in theologischen Streitigkeiten of the preceding year. In applying this framework to the question of heresy, however, Thomasius demonstrated its devastating power against a central plank in the criminal law of the Protestant confessional state. Thomasius deploys his ‘ﬁdeist’ conception of the church and his political-secular conception of the state – each assigned to a discrete normative domain or persona – in a pincer movement against heresy law. This allows it to be understood as a misuse of secular power for religious purposes and as an abuse of religion for political ends. At the same time, however, he makes a more telling use of his historiography of philosophy and the church, as a means of relativising the truth claims of the rival orthodoxies. This is achieved by locating them within the history of religion understood as an account of the role played by churches and sects as temporal associations in the civil state. Martin Heckel has argued that the historicising of religion ﬂowed from the need to suspend rival claims to theological truth in the great religious peace treaties, and to view the churches as secular (constitutional-legal) entities within the state.18 This, in effect, is how Thomasius’s ‘prince’ is required to see them. But this viewpoint was also supported by the ‘ﬁdeist’ conception of religion as pure inner faith and brotherly love. In abandoning all claims to doctrinal truth – in keeping with a ‘pietistic empiricism’ that denies man intellectual access to transcendent being – Protestant ﬁdeism allowed theological (and philosophical) doctrines to be viewed as empirical historical phenomena. Thomasius’s historiography of philosophy and the church thus related to his ﬁdeistic conception of religion via a strong internal reciprocity. As we saw in Chapter 2, this historiography of philosophy was designed to foreclose the metaphysical explication of the Christian revelation – placing an embargo on all doctrines of God as a divine mind who creates the world by intelligising it – and thereby relegate the entire superstructure of rival theologies in favour of a ‘simple active faith’. At the same time, by teaching that the creator’s inﬁnitude puts him beyond the conceptual apparatus of his creature, Protestant ﬁdeism paved the way for an ‘empirical’ historiography. It did so by undermining the idea that God’s 18

Martin Heckel, ‘Das Säkularisierungsproblem in der Entwicklung des deutschen Staatskirchenrechts’, in G. Dilcher and I. Staff (eds.), Christentum und modernes Recht. Beiträge zum Problem der Säkularisation (Frankfurt am Main: Suhrkamp, 1984), pp. 35–95, at 50–5.

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presence supplied the world with meaning in the form of transcendental concepts. This allowed events to be seen as temporal phenomena whose meaning arises from worldly causalities, hence as ‘historical’ in a manner quite unlike metaphysical and eschatological conceptions of history. One of the great monuments to this powerful and consequential reciprocity was Gottfried Arnold’s Unparteyische Kirchen- und Ketzer-Historie (Impartial History of Heresy and the Church) of 1699. Here Arnold deploys his ‘pietist empiricism’ as a means of treating all of the major heresies (and orthodoxies) as historical phenomena arising from the play of human passions, interests and institutions, particularly the institutions of the church and state.19 Thomasius, who would later praise Arnold’s work as the greatest book written since the Bible, used this intellectual strategy to great effect in his two heresy disputations. Is Heresy a Crime? is presented in the form of a dialogue, largely onesided, between the characters of ‘Orthodox’ and ‘Christian’, the former carrying the arguments and opprobrium of Lutheran confessional jurists and theologians, the latter going proxy for both ‘simple active faith’ and Thomasius himself. Responding to Orthodox’s claim that Lutheran jurists do not seek to exercise religious coercion through the prosecution of heretics – being content with excommunication and exile as punishments and seeking the death penalty only where sedition and blasphemy are involved – Christian provides a summary of his counter-position: For it seems to me that the Protestants also papalise in this, in that they cannot clearly say what kind of thing heresy is; that they regard heresy as a punishable crime; that they reject religious coercion with one hand while defending it with the other, in that they think heretics should be punished with excommunication or exile; that they cloud the doctrine regarding sedition and blasphemy in such a way that they can wreak their animus against all heretics with the sword, just as dreadfully as the Papalists; and that they have thus quite carelessly introduced evidently Papalist doctrines regarding heresy into their juristic commentaries or theological systems.20

Just to ensure that there is no doubt about whom Thomasius has in his sights, Christian continues: ‘And so that you do not think I am just prattling, I could show you all of these things from Benedict Carpzov’s text of criminal law, which I have in front of me.’

19

20

For Arnold’s reﬂections on his method, see Unparteyische Kirchen- und Ketzer-Historie, von Anfang des Neuen Testaments bis auff das Jahr Christi 1688 (Frankfurt am Main, 1699), Vorwort, n.p., and for a typical history of a heresy, see his account of Socinianism, pt. ii, pp. 557–74. Thomasius, ‘Heresy a Crime?’, p. 150.

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It is not surprising, then, that when Orthodox accedes to Christian’s demand for a deﬁnition of heresy, he offers what amounts to a repetition of Carpzov’s deﬁnition, itself drawn from Romano-canon law: ‘Heresy is an obstinate error in the foundations of faith by a person who is or was a member of the church.’21 Thomasius footnotes Carpzov as a source for the deﬁnition and then has Orthodox explicate it in a thinly veiled paraphrase of Carpzov’s speciﬁcation. Not all errors are heretical, Orthodox says, only those held obstinately; and not all who err are heretics, only those who do so wickedly and ﬂagrantly; while the restriction of error to matters of faith excludes philosophers, and the requirement of church membership excludes pagans, Muslims and Jews. Despite employing the literary form of the dialogue, Is Heresy a Crime? is thus a direct jurisprudential and political engagement with the confessional state’s central criminal-law construction of heresy. Thomasius begins to dismantle this construction by targeting the conception of the church that it uses. It is impossible to construe heresy in terms of deviation from church teachings, Christian argues, because the public church contains both good and bad Christians. In fact, the notion of religious deviancy confuses two different conceptions of the church: ‘This is partly because, instead of interpreting the word “church” as a society of the faithful, orthodoxy – together with anti-Christian doctors and the papalising laws of Justinian – applies this term to bricks and mortar or church buildings. But it is also because orthodoxy joins the papalists in seeking the unity of the true church – invisible and scattered across the whole world – in a visible assembly.’22 By invoking the invisible church as the ‘scattered’ community of the faithful, Thomasius rules out violation of church membership from the deﬁnition of heresy. Membership of the invisible church is unknown to all bar God, and thus cannot be policed. In discussing the notion of the ‘foundations of faith’, Thomasius begins to introduce his historicising and relativising strategy. If we attempt to identify the fundamental articles of faith by looking at those identiﬁed as such by theologians then, far from agreement, we ﬁnd an endless series of disputes and conﬂicts. Citing instances from intra-Protestant conﬂict over the Augsburg Confession and the Formula of Concord, Christian observes that every formulation of the fundamental articles of faith spawns dissenting rivals, and that theologians hereticate and anathematise each other over doctrinal subtleties that leave ordinary men mystiﬁed and disgusted. On this

21

Ibid., p. 160.

22

Ibid., p. 162.

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basis, Thomasius can import his anti-intellectualist, doctrinally minimalist conception of simple inner faith: ‘The foundation of faith is love of God and one’s neighbour, and disdain of oneself.’23 He then expands this into a fullscale rejection of the founding conception of confessional religion: namely, that salvation depends on the understanding and acceptance of speciﬁc theological doctrines. This conception, he argues, is based on the mistaken belief that the will can be improved via the understanding, leading to the cultivation of an absurd and dangerous ‘brain religion’ [Hirnglauben]. Drawing heavily on his historiography of philosophy, Thomasius thus argues for a fundamental relegation of intellectual truth in religion, in favour of the need to transform will and conduct: This pestilential error – that the intellect can rectify the will – common to all of the pagan philosophers, arises from the fact they sought the essence of God in speculative thought, rather than in love. As a result, they also looked for the essence of man in his mind rather than his heart. Thus they said that their philosophy, which taught that men became like God, consisted in the doctrine of the puriﬁcation of the intellect, in the discovery of truths, and in the mind’s ideal contemplation of the essences of things. Further, they awarded the ofﬁce of councilor to the intellect, and the ofﬁce of king to the will, fabricating other similarly absurd fables which, so far as I know, rule everywhere and in all three religions of the Holy Roman Empire, and from which arose, amongst other things, the false precept that intellectual faith awakes love in the heart. Yet anyone who carefully considers the nature of man sees without doubt that all corruption and all improvement of the intellect arise from the will and its affects, so that the concept of truth in the intellect of itself never produces anything good in the will.24

Having separated faith from conceptual truth, Thomasius is ready to dispatch the ﬁnal and crucial element of the crime of heresy, the notion of error. Not only is a true intellectual concept of God not necessary for saving faith, but it is in fact impossible to have such a concept. Deploying a traditional topos in a new way, Thomasius argues that God’s inﬁnite being is so far beyond man’s ﬁnite understanding that it is fruitless to attempt to form true concepts of Him, which means that the concept of religious error lapses as there is no-one who can judge it: On account of this, one cannot say precisely what an inﬁnite being is; nor, therefore, can one show that a particular positive concept of an inﬁnite being is erroneous. Now, most disputes with heretics are over the question: What is the inﬁnite being? I say again: there is no judge who could decide the error here, because a man cannot be a judge in this matter, as our Lutherans prove

23

Ibid., p. 166.

24

Ibid., pp. 170–1.

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long-windedly against the papalists … There are conﬂicts, for example, between the doctors of our sect and the Calvinists, likewise the Socinians, Quakers, Anabaptists, and so on. Each party calls on Scripture, using it to prove their opinion about this. One party explains Scripture in this way, another in that. Both parties claim that their interpretation is the meaning of the Holy Ghost. Now, who is the judge in this matter?25

In suspending the notion of theological error, Thomasius in effect declares the illegitimacy of all claims to cognitive theological truth in the articles and confessions of statutory religions. We will return to this undermining of religious truth and error below. For the moment, we can observe that Thomasius has used his distinctions between church and faith, and faith and knowledge to undermine the theological bases of Carpzov’s construction of the crime of heresy. In turning to the political and juridical bases of the Carpzovian doctrine, Thomasius makes full use of his restriction of the prince’s coercive laws to conduct capable of disturbing external peace. Even were it to be a speculative error, says Christian, then heresy still could not be classed as a crime, as it lacks the dimension of the ‘guilty mind’ or evil intent that is a necessary element of all culpable offences (delicta culpa): ‘Is evil intent a quality of the intellect or of the will? Is guilt not from negligence? Is negligence not a shortcoming of the will?’26 In responding to this decriminalising strategy, Orthodox attempts to turn Christian’s arguments against him, commenting that if (as Christian has argued) corruption of the intellect arises from the irrational passions and desires of the will, then heresy might still be punished, as it is the role of the magistrate to punish man’s sinful conduct. Drawing on the secularising restriction of the prince’s power outlined in the Recht in Streitigkeiten, Thomasius has Christian respond that not all vices of the will are subject to civil punishment, so that immorality may be distinguished from crime: For naturally there is a great difference between vice and crime. Crime is inseparable from punishment. But, as you know yourself, there are also many vices of the will that are subject to no human punishment (which is what we are speaking of here). For this reason, no-one will be punished for thinking. Further, even if they are expressed in external actions, to the degree that these do no great harm to the commonwealth, we do not punish the ﬂaws which are shared by the whole human race and could never be eliminated, such as envy, ambition, greed, and licentiousness. Now, if no-one is to be punished for thinking of crime, so it will be even less the case that someone can be punished for thinking erroneously.27

25

Ibid., pp. 175–6.

26

Ibid., p. 184.

27

Ibid., pp. 187–8.

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With this separation of sin and crime, Thomasius has undermined the fundamental juridical frame of Carpzov’s construct: the conception of the crimen laesae majestatis divinae – crime of violation of divine majesty – that had been incorporated in the Practica nova from Romano-canon law. In responding to Orthodox’s argument that this is a crime of such enormity that its mere thinking is punishable, Christian draws the secularising distinction so sharply that this once-monstrous offence ceases to be a crime at all: The jurists have already shown in several places that the division of the crime of violation of majesty into the violation of divine and human majesty is an ambiguous distinction, and the crime of violating divine majesty is actually not a punishable crime. For something will only be called a punishable crime in relation to human laws and punishments. God has not commanded worldly kings to protect his divine majesty. And just as this is spiritually violated, so the violator will be spiritually punished. But the authorities punish nobody spiritually.28

The hapless Orthodox is allowed one more chance to defend the law of heresy, by paraphrasing the Carpzovian argument that while quiet heretics may be tolerated, the spreading of a heretical religion that causes public scandal and civil disturbance must be subject to severe punishment. As we have seen, this refers to the blasphemy and sedition augmentations of the heresy law, under which a steady stream of Anabaptists had been condemned to burn by the Leipzig Schöffenstuhl during the ﬁrst third of the century. Thomasius’s initial response to this argument looks more suited to the conception of toleration as a subjective right, as he comments that to refrain from proclaiming what one takes to be religious truth is ‘morally impossible’ and hence should not be punished.29 It soon becomes clear, however, that it is not the prince’s respect for dissenting religious truth that grounds toleration of heretics, but his indifference towards it. Given that the prince’s ofﬁce is deﬁned by the preservation of social peace regardless of religious truth, then he should be unconcerned by the publication of false doctrine. To Orthodox’s objection that false doctrine is indeed harmful to citizens as it deprives them of eternal salvation, Christian responds: ‘This common objection assumes that guardianship of his subjects’ eternal salvation is a matter for the prince; yet I have shown elsewhere that the prince ﬁnds himself in a quite different situation. It is the prince’s business to oversee external security, which is not harmed even if a false doctrine is published.’30 28

Ibid., p. 188.

29

Ibid., pp. 195–6.

30

Ibid., p. 197.

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Having separated church from faith and faith from doctrinal truth, Thomasius is not about to ground toleration as a legal right in the possible truth of dissident doctrines. Dissenters should be free to speak about their religion not because it might be true, but because they cannot help it, and because the prince has no interest in their doctrines unless they too threaten civil order. Should this be the case, however – for dissenters all too easily become repressive when they become socially powerful – then they too may be legitimately coerced by the prince: For I do not intend that the dissenters should be permitted to spread their doctrines with violence or injury to others. Nor would I concede them a public exercise of their religion equal to that of the country’s primary religion. Neither do I wish them to be permitted to stage public disputations and challenges. I only wish them to be left free to follow their confession and to worship in private, such that their friendly gatherings and ordinary conversations about religion should not be denounced as conventicles and as a design against the laws.31

In other words, rather than being an inalienable right based on the subject’s pursuit of truth, freedom of religious expression is a derivative of the prince’s right of secular religious supervision – his ius tolerandi – and is limited by the prince’s prime duty of preserving social peace. the secul arisation of heresy Before the year of 1697 was out, Heresy a Crime? had been publicly attacked by a series of Lutheran clerics and theologians: Johann Fecht of Rostock,32 Justus Joachim Breithaupt, professor of theology at Thomasius’s own university33 and, anonymously, by Gustav Philipp Mörl, a junior member of Breithaupt’s theology faculty.34 Thomasius’s second heresy disputation, De jure principis circa haereticos (On the Right of Protestant Princes Regarding Heretics),35 defended by Johann Rube on 11 November of the 31 33 34

35

Ibid., p. 198. 32 Johann Fecht, Srutinium proﬂigate ex ecclesia haeretiﬁcationis (Rostock, 1697). Justus Joachim Breithaupt, Observationes theologicae de haeresi juxta s. scripturae sensum (Halle, 1697). Anonymous [Gustav Philipp Mörl], Repetitio doctrinae orthodoxae ad amicos quosdam scriptam de fundamento ﬁdei, occasione cuiusdam diputationis Halensis de quaestione: An haeresis sit crimen? (Leipzig, 1697). It seems that initially Thomasius was under the mistaken impression that this work had been written by his arch enemy, Johann Benedict Carpzov, which may explain why it was the only attack to which he responded in the second disputation; although this response was made not in the disputation itself, but in a short appended commentary. Christian Thomasius, De jure principis circa haereticos (Halle, 1697). German translation, Vom Recht evangelischer Fürsten gegen die Ketzer, in his Auserlesene deutscher Schriften, Erster Teil (Halle, 1705; repr. Hildesheim, 1994), pp. 308–76. I shall be citing from my English translation, ‘On the Right of Protestant Princes Regarding Heretics’, Eighteenth-Century Thought 2 (2004), 39–98. Page references are to the revised version presented in the appendix following this chapter.

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same year, was not a direct rebuttal of these critics but an extrapolation of the arguments of the earlier disputation. In comparison with Is Heresy a Crime?, however, the Right Regarding Heretics is less an intervention in Lutheran theocratic juridical culture and more a broad-based attack on the theological construction of heresy on which, Thomasius argues, heresy law is based.36 At the centre of this disputation is an anti-clerical attack on the priestly usurpation of civil rights and powers, achieved through the malign distinction between clergy and laity, and the cunning manipulation of secular rulers.37 Nonetheless, it is here that Thomasius completes his separation of faith from doctrinal truth, and launches a new political secularist conception of heresy and orthodoxy. Responding to (the Lutheran theologian) Friedrich Calixt’s attempt to specify the foundations of faith in terms of the Apostolic Creed,38 Thomasius begins the second disputation by summarising the results of the ﬁrst one. Theologians will no more agree on the meaning of the Apostolic Creed than on any other theological doctrine and, in any case, they do not agree on which creed, conciliary decrees and so on should deﬁne true faith and the deviation that constitutes heresy.39 Modern theologians disguise the fact that they derive the foundations of faith not from the Bible but from man-made confessions, which are then passed off as the word of God. The virtue of the Roman emperors is that they were more open about this, offering a juridical deﬁnition of heresy in terms of deviation from a credal religion: ‘The Emperors Gratian, Valentinian, and Theodosius say: The name heretics comprehends those who have been discovered to deviate even in the slightest matter from the judgement and path of the Catholic religion, and who must submit to the sanctions against them.’40 This deﬁnition is from the heresy statute of the Justinian Code, and Thomasius uses it to illustrate the clerical capture of civil authority. Here, he argues, religion means the same as creed or confession, while universal 36

37

38

39

40

This might be because a ‘second chapter’, announced in the ﬁnal sentence of the disputation, and supposed to outline the prince’s positive rights in accordance with civil law, did not eventuate. The character of these rights is clear enough in Heresy a Crime?, which might explain why the second chapter was never written. On Thomasius’s anti-clericalism, see Frank Grunert, ‘Antiklerikalismus und christlicher Anspruch im Werk von Christian Thomasius’, in J. Mondot (ed.), Les Lumières et leur combat: La critique de la religion et des églises à l’époche des Lumières / Der Kampf der Aufklärung: Kirchenkritik und Religionskritik zur Aufklärungszeit (Berlin: Berliner Wissenschafts-Verlag, 2004), pp. 39–56. See Friedrich Ulrich Calixt, Tractatus theologicus de haeresi, schismate et haereticorum poenis (Helmstedt, 1690), § 55ff., pp. 14ff. Christian Thomasius, ‘On the Right of Protestant Princes Regarding Heretics’, §§ 1–14, pp. 171–4. (Page references are to the revised translation in the appendix below.) Ibid., § 16, p. 175.

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religion refers to one that is binding on all subjects of the Roman Empire: ‘Considering, though, that the Emperors left the ﬁnal judgement in matters of faith to the clergy, who also determined the articles of faith, it is then easy to see that to deviate from the judgement of the Catholic or universal religion is nothing other than to deviate from the judgement of the clerics.’41 As a result, the Justinian construction of heresy really means: ‘the slightest dissent of those belonging to the same sect of Christians from the judgement of the clergy and the creeds they have confected as norms for the faith of others’.42 With this historicising reconstruction of the meaning of heresy in place, Thomasius can vent his anti-clerical hostility towards the clerical capture of law and politics in the confessional state, beginning with the distinction between clergy and laity itself. Commenting sarcastically that his construal deviates somewhat from canon law, Thomasius deﬁnes clergy thus: The clergy is a civil status pertaining to the church [status Reipublicae in Ecclesia] which, under the appearance of devotion and worship, affects a special holiness above the other estates, arrogating to itself direction [Herrschaft] of their conscience. For this reason, in German, the clergy are called the religious [Geistlichkeit], also the spiritual fathers [Geistliche Väter], father confessors [Beicht-Väter], and so on.43

For their its part, the laity is deﬁned as a civil status pertaining to the church whose loose living means that it ‘patiently suffers the clergy’s tyranny of conscience, intolerable as this is to all true Christians’. In other words, by exploiting the spiritual weakness of the people, the clergy have been able to usurp the congregation’s spiritual judgement, claiming this as their privileged insight and right, and using it to manipulate emperors and princes into enforcing their judgement as civil law. In pursuing this undertaking, Thomasius argues, the clergy have developed a highly successful stratagem. They have used pagan philosophy to rework simple revealed faith into metaphysical theories that wrap their usurpation of power in a cloak of impenetrable subtleties. Reactivating his father’s history of the corruption of religion through the scholastic admixture of Greek philosophy, Thomasius explains why the deviations that give rise to the charge of heresy may occur in only the ‘slightest of things’: One could also understand the strife over minor things in this way: that the questions of the wrangling clergy are so contrived that they appear to be theological questions of the greatest moment, whose resolution is esteemed as if it were the word of God. In fact, though, when seen in the light, they signify 41

Ibid., § 18, p. 175.

42

Ibid., § 19, p. 176.

43

Ibid., § 20, p. 176.

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nothing more than the reckless application of philosophical terms (often taken from pagan philosophy) to the mysteries of the faith – which are mysteries precisely because they cannot be conceived philosophically. Either this, or [they signify] a twisting of the words of Scripture to suit scarcely sane philosophical hypotheses.44

This allows Thomasius to transpose his earlier academic attack on Lutheran Schulphilosophie into an immediately political and jurisprudential register, as he now makes the discipline of university metaphysics directly responsible for the doctrinalisation of faith through which heresies were fabricated and heretics murdered: Some would ﬁnd it paradoxical if I said that from the time of Constantine the Great to the Reformation, all of the controversial questions, which were supposed to belong to the Catholic faith, and from which heresies arose, were in fact purely and simply philosophical – metaphysical and logical for the most part; and, therefore, that myriads of men have been butchered and banished not for God’s sake, but for the sake of Aristotle’s or Plato’s metaphysics. Nonetheless, this paradox is only too true. Those who do not believe it need only read the Panarium of Epiphanius, and the history of the Councils.45 Only in them can one tally all of the conﬂicts over the terms essence, persona, hypostasis, substance, property, and similar. We can consider here the causes for which anathemas were pronounced on people; for example, on those who supposed the existence of the antipodes, or on those who teach that the earth moves around the sun, and similar things.46

Through the philosophical reconstruction of religion, the metaphysicians made it possible for the clergy to repress the reformers who criticised their ‘fat bellies, fractious heads and full purses’, treating them as heretics for deviating from metaphysical subtleties. Yet these subtleties were so changeable that it was easy for the orthodox to become heretics and heretics to become orthodox. Thomasius thus goes well beyond his father’s cautious use of the history of metaphysics to explain the origins of heresy, deploying it now to relativise heresy and orthodoxy. As a result of this anti-clerical exposé and reconstruction of the Carpzovian, Romano-canon law conception of heresy, Thomasius is able to offer a new, historical and political account of heresy. Far from being an error in the foundations of faith, or even a departure from a universal faith, 44 45

46

Ibid., § 27, p. 178. Epiphanius’s Panarium – Contra octoginta haereses opus, Panarium, sive Arcula, aut Capsula Medica appellatum, continens libros tres, & tomos sive sectiones ex toto septem – was a vast catalogue of heresies from the early church. It was translated from Greek into Latin in 1543 by Lutherans seeking to battle heresy inside Protestantism. Thomasius, ‘Right Regarding Heretics’, § 28, p. 178.

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‘Heresy is a dissent from the ruling religion’, while ‘Orthodoxy is the ruling religion.’47 The ruling religion, Thomasius is careful to explain, is not equivalent to the prince’s religion, or that of the majority of the population. Rather, it is a religion that seeks to deny religious freedom to the prince’s subjects by exercising tyranny of conscience, which it enforces by co-opting the secular authorities: ‘For there to be a ruling religion, it is necessary that the clergy arrogate to itself lordship over conscience, and have the secular authorities at their disposal, so that either the country’s prince or the majority of the population will help them. In other words, so that they not only have the intention but also the power to rule.’48 This distinction between the religion of the ruler and the ruling religion suited Thomasius’s circumstances in Brandenburg-Prussia, where he wished to construe the Lutheranism of the estates as the repressive ‘ruling religion’, rather than the Calvinism of the Hohenzollern rulers. More broadly, though, his redescription of heresy as a deviation from the ruling religion also represents the culmination of Thomasius’s historicising and relativising strategy. Having uprooted orthodoxy and heresy from any relation to truth and error, and reconstructed them in the purely historical terms of a struggle for clerical domination, he can treat them as interchangeable: ‘And here one should not be surprised that from different viewpoints each of these religions is orthodox and heterodox at the same time. Religions are orthodox to the extent that they rule and persecute another religion; they are heretical in so far as there are different opinions among them and one is oppressed by the others.’49 As a result of this historical and political reconstruction of the orthodoxyheresy pair, it should be possible to bypass clerical heretic-mongering and persecution, and arrive at a politically agreed condition of mutual toleration: At the same time, this situation need not give rise to great tumult in the commonwealth if, that is, through a compact of peace the laity stipulate mutual toleration – regardless that the clergy murmur against it – such that each religion is held to be orthodox from the juridical viewpoint. From the clerical viewpoint, though, each religion will be orthodox to itself, but heretical to the clergy of the others.50

Thomasius thus concludes that ‘the clergy are the principal cause of heresy, while the secular branch or temporal authority is nothing more than the instrumental cause’, with church councils being the prime means for the clerical instrumentalisation of civil power. It is for this reason that 47

Ibid., §§ 35, 36, p. 180.

48

Ibid., § 38, p. 181.

49

Ibid., § 39, p. 181.

50

Ibid., § 40, p. 181.

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sin and crime, spiritual discipline and civil punishment have been confused in the repression of heretics, allowing their excommunication to trigger an array of civil disabilities: exclusion from public ofﬁce, denial of connubial and testamentary rights, the conﬁscation of their property, and the burning of their books and their bodies. concluding remarks: truth, peace and the right of toleration Thomasius’s relativising construction of orthodoxy and heresy – ‘From the clerical viewpoint, though, each religion will be orthodox to itself, but heretical to the clergy of the others’ – is immediately reminiscent of Locke’s more celebrated remark on the same topic: For every church is orthodox to itself; to others, erroneous or heretical. Whatsoever any church believes, it believes to be true; and the contrary it pronounces to be errour. So that controversy between these churches about the truth of their doctrines, and the purity of their worship, is on both sides equal; nor is there any judge, either at Constantinople, or elsewhere upon earth, by whose sentence it can be determined.51

The grounds for this similarity are quite deeply rooted.52 The two advocates of toleration both accept an inward spiritualistic form of Protestantism, with its commitment to a simple ethical faith and its hostility towards elaborate doctrinal confessions enforced as orthodoxy. Not only this, but Thomasius’s separation of the ofﬁces of prince and teacher – where the prince wields coercive power solely to maintain external peace in the commonwealth, while the teacher ediﬁes solely by preaching the Word, eschewing all force – is remarkably similar to Locke’s way of separating civil government from religious worship.53 There are, however, some important differences.54 Locke adheres to a quasi-congregationalist conception of the church, as a voluntary assembly 51

52

53 54

John Locke, ‘A Letter Concerning Toleration’, in The Works of John Locke (London, 1801), pp. 3–58, at p. 19. On Locke’s reconstruction of heresy, see John Marshall, John Locke, Toleration and Early Enlightenment Culture: Religious Intolerance and Arguments for Religious Toleration in Early Modern and ‘Early Enlightenment’ Europe (Cambridge: Cambridge University Press, 2006), pp. 575–86. See, for example, Locke, ‘Letter’, p. 12. For a parallel comparison of Locke’s conception of toleration with Pufendorf’s – which bears strongly on our comparison of Locke and Thomasius – see Michael J. Seidler, ‘The Politics of Self-Preservation: Toleration and Identity in Pufendorf and Locke’, in T. J. Hochstrasser and P. Schröder (eds.), Early Modern Natural Law Theories: Contexts and Strategies in the Early Enlightenment (Dordrecht: Kluwer, 2003), pp. 227–55.

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for the public expression of conscience and inner truth. Further, he combines this with a social conception of the state, understood as a contractual arrangement for the protection of basic rights and freedoms – ‘life, liberty and property’ – through the conditional appointment of a sovereign who only rules with the consent of the governed.55 As a result, Locke treats toleration as a right belonging to individuals in their joint personae as Christians and citizens. Toleration is a subjective right that arises from the responsibility that individuals have for their own salvation and from the fact that the state exists in order to protect such rights. This means that toleration is a ‘lawful right’ possessed by individuals and is capable of being exercised against a state that denies it. Public churches should thus be tolerated by right, as these are the associations in which rights-bearing individuals gather to pursue the religious truths that they hold necessary for their salvation: ‘These religious societies I call churches: and these I say the magistrate ought to tolerate. For the business of these assemblies of the people is nothing but what is lawful for every man in particular to take care of; I mean the salvation of their souls: nor in this case is there any difference between the national church, and other separated congregations.’56 Thomasius differs from Locke in both the above regards. As we saw in Chapter 4, for Thomasius, membership of the ‘invisible church’ does not give rise to rights, as these arise only as protection from mutual injury – which is impossible in the spiritual community – so that the individual pursuit of salvation does not translate into rights for the public church. Thomasius viewed rights as a public-law jurist, tying them to the legal personality of the citizen, not as a moral philosopher tying them to the Christian’s responsibility for his own salvation or to ‘man’s’ subjective capacities for understanding and free action. Further, in Thomasius’s account the state’s character and prerogatives derive not from its contractualist origins – the protection of the liberties and security of those who delegate their (moral) sovereignty to it – but from its political function: to preserve domestic peace and external security through the exercise of a power that must be sovereign to achieve these ends. Unlike Locke’s, therefore, Thomasius’s arguments in favour of tolerating heresy are not grounded in a fundamental notion of freedom of conscience, giving rise to a right of free public worship. Rather, for Thomasius, heretics should be tolerated because their prosecution and persecution are the direct 55

56

See John Locke, Two Treatises of Government, ed. P. Laslett, 2nd edn (Cambridge: Cambridge University Press, 1967; orig. 1689), Treatise Two, pp. 318–63. Locke, ‘Letter’, p. 29.

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outcome of the clerical capture of the state.57 It is true that Thomasius regards faith as free, but as so free and so inward and individual that it can never ﬁnd expression in a public church of any kind. Paradoxically, it is the very inwardness of Thomasius’s ﬁdeist conception of religion which means that all public forms of worship – the entirety of church sacraments and liturgy – can be regarded as adiaphora, at the prince’s disposal should they threaten social peace. For Locke, however, the adiaphoristic aspects of religion are beyond the magistrate’s reach, for once they have been incorporated into church worship they become expressions of a particular congregation’s search for truth and salvation.58 In Thomasius’s account the state encounters limits to its right of religious supervision not in a moral consensus or subjective right that it was formed to uphold, but in a quite different source: namely, in the fact that if it is to end its clerical captivity then it must on no account seek to govern its subjects’ consciences, restricting itself solely to their external conduct as this affects social peace. Seen from a Lockean perspective, therefore, Thomasius’s arguments for the toleration of heretics and dissenters have a decidedly limited and ambivalent character. As toleration for Thomasius is not grounded in the universal rights of the tolerated, but in an historical campaign to establish a desacralised political authority, the rights and liberties of all churches – dissenting and orthodox – are circumscribed by the sovereign’s absolute right to settle all disputes capable of impacting on civil peace. In a case that was referred to the Halle law faculty for judgement, we thus ﬁnd Thomasius arguing that a Lutheran nobleman should be compelled to attend his village’s Calvinist church. Needless to say, Thomasius’s judgement is grounded not in the belief that Calvinism is the true religion, but in the argument that by insisting on the truth of his own religion the nobleman was failing in his civil duty to show leadership in overcoming confessional hatreds, thereby contributing to them.59 Similarly, while

57

58 59

For an accurate account of Thomasius’s views in this regard, see Matthias J. Fritsch, Religiöse Toleranz im Zeitalter der Aufklärung. Naturrechtliche Begründung – konfessionelle Differenzen (Hamburg: Felix Meiner, 2004), pp. 48–65; also Dreitzel, ‘Christliche Aufklärung’. Locke, ‘Letter’, pp. 30–3. Christian Thomasius, ‘Von der Macht der weltlichen Obrigkeit ihren Unterthanen ein ﬂeißiges Kirchen-Gehen anzubefehlen’, in Vernünfftige und Christliche aber nicht Scheinheilige Thomasische Gedancken und Erinnerungen über allerhand Gemischte Philosophische und Juristische Händel. Dritter Theil (Halle, 1725), pp. 177–208. In English: ‘On the Power of Secular Government to Command its Subjects to Attend Church Diligently’, in Hunter, Ahnert and Grunert (eds. and trans.), Essays on Church, State and Politics, pp. 128–47. This article takes the form of a collection of legal documents, and records the fact that Thomasius’s judgement was overridden by the faculty acting as a Spruchkollegium.

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dissenters and heretics are to be tolerated and allowed to proclaim their faith, this is not because it might be true, and hence must be respected by the prince as a right. Rather, it is because coercion is futile in matters of faith and the prince must on no account attempt this on the basis of a religious judgement. He has the right, though, to restrict dissenters from engaging in disputations and proselytising to the extent that these disturb the civil order.60 Notwithstanding this difference, however, it is by no means clear that Locke’s construction of toleration in terms of a subjective right against the prince gives rise to a more expansive and secure form of toleration, or one more in tune with enlightenment and modernity.61 In fact, there is an important sense in which Locke’s attribution of political rights to church members opens the door to the denial of such rights to those who are not church members, or who belong to the wrong kind of church. Locke thus denies political toleration to members of theocratic churches and to those requiring loyalty to a foreign prince, by which he means Catholics preeminently.62 The problem with this is not so much the denial of toleration as the fact that Locke grounds this in the falsity of Catholic theological doctrines which, he assumes, threaten peace and security because of their falsity. This has quite different consequences to restricting toleration on the basis of an independent political secularist norm: the maintenance of domestic peace and external security.63 The nature of this difference becomes clearer when we examine the second category of (non-)believer to whom Locke denies political toleration, atheists. He does this on two inter-related grounds: because atheists cannot keep the contracts and oaths necessary for human society, and because in lacking a religion they lack the right on which toleration is based: ‘Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all. Besides also, those who by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge [i.e., claim] the privilege of toleration.’64 Here we see the unexpected political

60 61 63

64

Thomasius, ‘Heresy a Crime?’, pp. 286–7. Cf., Dreitzel, ‘Toleranz und Gewissenfreiheit’, at pp. 126–7. 62 Locke, ‘Letter’, pp. 45–7. But note Marshall’s argument that Locke was working towards such a norm as a means of granting restricted toleration to the Catholics to the extent that they renounced certain key doctrines, mainly those justifying political resistence to heretical Protestant monarchs. See Marshall, John Locke, pp. 686–94. This form of restricted toleration is similar to that which Thomasius advocated for all public confessional religions. Locke, ‘Letter’, p. 47.

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costs associated with Locke’s grounding of toleration in a subjective right based on the pursuit of religious truth. In making the relations between truth-seekers within the church the basis of a right, hence of oaths and covenants, Locke ends up asserting that those who are members of no church are incapable of being held to such oaths. This means that he views civil duties as grounded in the rights associated with church membership, so that civil rights will be denied to those who are not members. Those who hold to no religion, then, may not be tolerated, as political rights in this regard come from membership of churches as the corporate form in which individuals pursue religious truth and salvation. Locke’s refusal of toleration to Catholics and atheists is thus not an anomaly within his otherwise liberal construction of religious freedom on the basis of inalienable subjective rights. On the contrary, it is the direct result of this construction, arising as the ﬂipside of his attempt to ground toleration in a coercible moral right against the prince. Thomasius’s much sharper separation of the personae of Christian and citizen, ‘man’ and prince, eventually allows him to avoid these problems. In making the threat to internal and external security into the sole ground for exercising political and juridical coercion, Thomasius denies the prince the right to exercise coercion against any group on the basis of the falsity of their beliefs – Catholic theocrats included. Similarly, because he does not view truth-seeking within the church as a source of rights, and because he explicitly denies this as a source of oaths, Thomasius is not compelled to deny toleration to atheists.65 This is clear from the following remarks, which form part of Thomasius’s commentary on Pufendorf’s De habitu religionis christianae ad vitam civilem (On the Nature of Religion in Relation to Civil Life): religions as such do not disturb external peace, and where their teachings are so disposed [to tranquility], then the prince can well tolerate them. For those who deny the Trinity do not immediately disturb the state. Where, though, such people do disturb the state, then the prince’s duty requires that he expel them from the commonwealth. In fact, in the past I maintained that nothing could be more injurious to the commonwealth than atheism. Now, however, I recognize this to be false. Who then may not be tolerated in the republic? Our Lutherans answer: the papists, because they say publicly that the subject of a prince who belongs to another religion may kill him in good conscience, and that heretics may not defend the faith. These principles are contrary to the state and disturb the commonwealth, as one has seen in France, and should therefore not be

65

In arguing that Thomasius refused to accept the toleration of atheists, Fritsch, Religiöse Toleranz, p. 65, would appear to have overlooked Thomasius’s ﬁnal views on the matter.

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tolerated. I do not want to go into the facts here … but we must nonetheless not impute the principles of the Jesuits to everyone. And if a prince wishes to act as if turmoil could arise from an opinion simply by probable consequence, then he would tolerate no religion, for the Lutheran religion can also give occasion to turmoil by consequence … This then is the wisest counsel: that a prince should tolerate all religions. No turmoil arises from diversity of opinion as such, but arises rather when those who disagree feud. Then the prince must bravely punish them, so that afterwards they will live quite peacefully.66

More generally, we can say that in refusing to view the state in Lockean terms – as a contractual expression of a moral agreement among Christian subjects – Thomasius could go much further than Locke in freeing the state from the need to enforce any kind of morality, religious or otherwise, eventually resulting in a more secularised conception of toleration. As we observed in Chapter 2, Thomasius’s position in this regard was supported by his rejection of the view that good conduct depends on having the right religious or moral ideas, which permitted him to support the Dutch government’s toleration of Spinoza’s atheism in much the same way as Bayle. Paradoxically, it is the prince’s indifference towards religion and morality that best guarantees the freedom of Christians in this regard, even if it lies entirely at the prince’s disposition to determine when the threshold of civil disturbance has been crossed and freedom ceases. It is important, however, not to make too much of this difference in constructions of toleration, as if only one of them held the key to enlightenment and modernity. That, after all, is the ﬂaw in those views of Thomasius that see him stranded at the portals of modernity and Aufklärung. Each construction arose in a particular setting to which it responded from within the limits of the cultural and political resources at hand. Locke’s arguments for the toleration of heresy were those of a dissenting philosopher fearful of the emerging Anglican confessional state. Thomasius’s, however, were those of a jurisconsult advising the multi-confessional absolute state of Brandenburg on how to keep its dominant confession in check. Such are the arguments that the reader will encounter in On the Right of Protestant Princes Regarding Heretics, ﬁnding in them, perhaps, unexpected light being shed on an old problem that is suddenly new again: how to maintain the secularity of politics and law, and conceive religious toleration as an obligation imposed by the state.

66

Christian Thomasius, Vollständige Erläuterung der Kirchenrechts-Gelahrtheit (Frankfurt and Leipzig, 1740), pp. 349–51.

Appendix On the right of Protestant princes regarding heretics Christian Thomasius 11 Nov. 16971

Edited and translated by Ian Hunter2

1st Chapter3: On the prince’s right regarding heretics according to clerical law.

contents §1. In order to treat this matter, it is necessary to know what heresy is. §2. Yet the common deﬁnition is quite obscure. 1

2

3

This was the date on which Latin dissertation, De iure principis circa haereticos, prepared under the direction of Thomasius (as praeses) was defended in the Halle law faculty by his doctoral student Johann Christoph Rube (as respondent). Translated into German as Abhandlung vom Recht Evangelischer Fürsten gegen die Ketzer, it was published in a selection of Thomasius’s works – Auserlesene deutsche Schriften – in 1705. This was the second dissertation that Thomasius had dedicated to the question of the legal and theological status of heresy in that year, his An haeresis sit crimen? having been defended, again by Rube, a few months earlier, on 14 July. In preparing this English translation I have used the German version cross-checked against the Latin, not with a view to producing a critical edition, but with the more modest aim of providing an accurate and accessible version of the text for the modern reader. I have attempted to stay close to Thomasius’s forthright and occasionally sarcastic style, while simplifying his baroque syntax, and replacing his omnibus use of the forward slash with something approximating modern English punctuation. Thomasius’s footnotes are marked by letters in the text, editorial endnotes with arabic numerals. In order to deal with the problem of Thomasius’s typically abbreviated and sometimes cryptic references, I have added a bibliography of the texts that he cites, wherever possible in the editions available to him. All round brackets in the text are Thomasius’s, while editorial interpolations are encased in square ones. Thomasius’s quotations, originally in bold face, are here in italics. A number of friends and colleagues kindly policed my translation. I am particularly indebted to Thomas Ahnert who saved me from several errors, leaving me solely responsible for those that remain. The translation has also beneﬁted by comments from Marianne Ehrhardt, Frank Grunert, Knud Haakonssen, Michael Lattke, David Saunders and an anonymous reviewer for EighteenthCentury Thought. At the end of this text, in the conclusion to the second appendix, Thomasius records his intention to write three chapters: the ﬁrst, which follows, and amounts to an anti-clerical treatment of the clergy’s

168

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§3. What heresy means in the Bible. §4. Common complaints regarding the imperfection of the deﬁnition of heresy. §5–8. Disagreement among our teachers over the meaning of the foundations of faith in the deﬁnition of heresy. §9–14. The deﬁnition of heresy newly posited by a certain author is rejected. §15. On a correct and clear juristic deﬁnition of heresy. §16. Such is to be found in the [ Justinian] Code, On Heretics, lex 2. §17–18. Whose dubious terms will be explained by paraphrasing them. §19. This paraphrase will be presented in clearer words. §20–22. True deﬁnition of the clergy and the laity. §23. Justinian’s deﬁnition of heresy is clearer and more accurate than that of Canon Law.4 §24. When he wants to make someone into a heretic through a syllogism, the clergyman settles both the major premise and also the minor premise. §25–28. In the deﬁnition of heresy, what is the meaning of: vel levi argumento dissentire (to dissent from doctrine even in the slightest thing)? §29–31. But this deﬁnition does not exclude dissent in serious matters, which will be described and explained with examples. §32. How easily an orthodox believer can become a heretic, and a heretic an orthodox believer. §33–34. Properly, heresy originates with the clergy. §35. Brieﬂy put, heresy is dissent from the country’s ruling religion. §36. Conversely, orthodoxy is the ruling religion. §37–38. Clariﬁcation of what the ruling religion is. §39–40. There could also be two ruling religions in a commonwealth, just as in a certain regard a single religion can be both orthodox and heretical. §41. The principal efﬁcient cause of heresy is the clergy; the instrumental cause is the secular magistracy. §42. According to the teaching of clerical law, the prince has no right in relation to heretics other than that which comes to him from the clergy.

4

view of the prince’s right in relation to heretics; a second dealing with the prince’s right from a biblical perspective; and a third from the perspective of legal practice in the Protestant territories. In the event, only the ﬁrst was written, although it contains important elements of the second and third viewpoints. The German translation of 1705 renders the Latin Jus Canonicum as Päbstliche Recht or ‘Papalist law’, indicating that it was intended for a more popular and anti-Catholic readership.

Appendix

170 §43. §44. §45. §46. §47.

Clerical law is either Justinian or Canonical. The Church Councils arose from the desire to hereticate. What a Council is. The Council of Nicaea is the very ﬁrst. The gathering of the apostles (Acts XV) has been falsely represented as a Council. §48–52. What kind of conciliar right was comprehended under the term imperial authority. §53–54. Yet, even outside the Councils, the clergy declared heretics from time to time. §55–56. The punishments for heresy are either ecclesial or civil. §57. Taken as a whole, excommunication is effectually a civil punishment. §58. One should not keep faith with heretics. §59. Heretics shall be excluded from all public ofﬁces. §60. From connubial rights. §61. From the right which otherwise belongs to a father or son; for example, the right of bequeathing. §62. The books of the heretic should be burnt and their readers punished with death. §63. The heretic’s goods will be conﬁscated. §64. Heretics will be excluded from common law and from the beneﬁts of legal process. §65. They will be subjected to various punishments, both while they live and after their death. §66. The arts by which the clergy extort these laws from the secular branch. Firstly, they persuade the prince that the clergy should have special privileges above the laity, and that the clergy alone are the chosen heirs of God: §67. That the clergy are the husband and spiritual father of the Christian church; §68. That the clergy alone understand the secret of the Kingdom of God, while those laity who do not believe the clerics are dogs and swine; §69. That the clergy ought to prescribe norms of faith to the laity; §70. That the laity may not assemble in order to exercise their understanding of the Bible, just as they may not preach; §71. That the laity may not punish the clergy (to which one might say that the clergy are brothers of Bileam’s Ass); §72. That a layperson may not dispute about the religion prescribed by the clerisy; §73. That still less may he involve himself in disputation with heretics.

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§74. Secondly, various doctrines which follow from the prior acceptance that a heretic is every person declared to be such by the clergy: §75. That determining the crime of heresy belongs solely to churchmen, while the glory of the laity is reduced to rendering obedience; §76–79. That clerical excommunication is apostolic, introduced by Christ himself; §80. That the faith and Christianity of the laity consist in the protection and veneration of the clergy; §81. That the ofﬁce of the prince is to instruct the people in accordance with the prescription of the clergy; §82. That, accordingly, in legal judgements the prince can pronounce divine punishment on criminals. §83. Further, the clergy have persuaded the princes into thinking that they could obtain eternal life merely by persecuting heretics; §84. That there is only a single vice, namely, to be a heretic; and a single virtue, namely, to persecute heretics; §85. That no good works, not even a martyr’s death, shall atone for the vice of heresy; §86. That all heretics belong to the Devil, body and soul; §87. (From whence it comes that heretics are burned alive). §88. Fraudulence of the clerics when they ask the authorities not to shed the blood of a heretic. §89–91. Heresy is supposed be the most horrible of all vices. §92. The religious oath is supposed to be a remedy against heresy.

§1. We cannot discuss the right of the prince regarding heretics unless we already know exactly what a heretic is. But we cannot know this if we do not know what heresy is. §2. But the common deﬁnition of heresy – where it is said that heresy is an error against the foundations of faith by someone who is or was a member of the Christian church5 – is very obscure.a §3. In the true Biblical sense, though, the word hæresis, or heresy, is opposed and contrary to today’s meaning of heresy, and would be

5

As discussed in Chapter 5 above, this is the canon-law deﬁnition of heresy that Benedict Carpzov had integrated in Saxon legal practice, in his Practica nova imperialis saxonica rerum criminalium (Frankfurt, 1635), pt. i, qu. xliv, §4.

a

See my disputation, Ob Ketzerey ein straffwürdiges Verbrechen sey? [Is Heresy a Punishable Crime?], §§4, 5, 6, 7.

172

§4.

§5.

§6.

§7.

b c d

e f

Appendix called hereticating.b Or, if heresy is in fact taken to mean error, then it signiﬁes an error that in itself leads man to do the work of the ﬂesh, and therefore directly leads him away from true eternal holiness, blessedness and happiness – that is, from his peace of mind – which consists in a spiritual union with God.c But this meaning is not to the taste of ecclesial jurisprudence. The Fathers of the Church had complained much about the difﬁculty of deﬁning a heretic, and even today the theologians continue to complain about this from time to time. Others have already examined the opinions of Tertullian, Augustine, Irenaeus, Justin Martyr, Hornius and G. Calixt on the characteristics of a heretic, and contend that no matter what these authors say, they have not exactly and completely deﬁned a heretic.d Our [Lutheran] theologians generally say: heresy is an error against the foundations of faith. But the phrase ‘foundations of faith’ suffers from ambiguity, which some have attempted to alleviate by saying: an error against the foundations of faith would amount to an error against the Apostolic Creed.e Considering that heretics are accustomed to hiding their venom under the words of the Holy Scriptures, however, then they will conceal it all the more under this Creed.f Never mind, as others already remarked against this view, that on this basis the Socinians, Arians, Anabaptists, David Georgists, and similar would not be heretics,g which runs counter to the practice of ecclesial jurisprudence. Now, after some took note of this, they replaced the preceding explanation with a new one, in that they say: an error against the Apostolic Creed is an error against its genuine and universal meaning. Since this explanation itself requires a new explanation, however, they have added that the correct and universal meaning of the Apostolic Creed is when it is received and understood according to the formulas and guidance of Nicene and Athanasian Creeds or, again, according to

See, ibid., §8. pp. 256ff. See, Peter II. 1, 3, 12ff ; Jude 3, 8, 10, 11, 13, 16. F. U. Calixt, in the Tractatus von Ketzerey [Treatise on Heresy], §142 [pp. 167ff. ]. [Son of the famous ‘irenic’ Helmstedt theologian, Georg Calixt, Friedrich Ulrich Calixt (1622–1701) published the Tractatus theologicus de hæresi, schismate et hæreticorum poenis in 1690.] F. U. Calixt, in the abovementioned Tractatus, §55ff., pp. 14ff. See Calixt in the Tractatus above, §63, p. 47. g Calixt, ibid., §64, p. 48.

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the opinion of the Synods of Ephesius and Chalcedonia, and in no way according to a different viewpoint.h §8. Doubtless, though, others will object that in this way the Papalists would not be heretics. Just as, following this rule, the Papalists could not hold the Lutherans and Reformed to be heretics. Likewise, nobody who signed up to the Formula of Concord would be a heretic.6 §9. We see, then, that after much labour, the following deﬁnition of a heretic will ﬁnally be arrived at: a heretic is a man who once confessed the Christian religion, who errs against the foundations of faith contained in the Apostolic Confession, denying an article therein and, regardless of all good guidance, and although he is truly admonished and persuaded of his error, still obstinately rebels, wickedly asserting his heresy with an obdurate heart, and persists in it until the end of his life.i §10. Now, setting much else aside, this means that no man could be judged a heretic before his death, because prior to his death it is not possible to say of any man that he remained obstinate until the end of his life, which was cited as a characteristic of a heretic. For, so long as a man is still on the way to heresy, he is yet no heretic, and is therefore to be regarded as a brother, even if he already errs dangerously.j On this account, then, a man could never be excommunicated as a heretic, which is however the punishment for heresy that the author of this account approves and defends.k §11. In fact the author himself has no great faith in his own characterisation, in that he expressly acknowledges that it is not a correct and complete deﬁnition, but more a common description; in fact, simply how others describe a heretic and heresy.l This strongly conﬁrms what I have previously said about the obscurity of the common deﬁnition of heresy.m §12. Likewise, when the common deﬁnition speaks of heresy as a heretic’s error against the foundations of faith, and some explain this in terms 6

h

As discussed in Chapter 1 above, the Formula of Concord (1577) was intended to heal rifts in the Lutheran church and forge a united front against the Calvinists by providing an agreed explication of the church’s deﬁning theological doctrines, as these had been initially proclaimed in the Augsburg Confession (1530).

Calixt, ibid., §63, p. 47. See Calixt, as above, §150, pp. 115ff. j Calixt, Von der Straffe der Ketzer [Disputatio theologica de poenis haereticorum (Helmstedt, 1672)], ch. 3, §21, p. 300. k Calixt, ibid., ch. 3, §15ff., pp. 295ff. l Calixt, Von Ketzerey [Treatise on Heresy], §153, p. 117. m See my disputation, Ob Ketzerey ein straffbares Verbrechen sey? [Is Heresy a Punishable Crime?] i

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of an error against the Apostolic Creed, but others in terms of an error against the creeds of the General Councils, so this conﬁrms what we have said in that place:7 that in the deﬁnition of heresy the phrase ‘foundations of faith’ is unclear. §13. Neither is the obscurity of these words alleviated if someone attempts to deﬁne the foundations of faith in the following way: the foundations of faith consist in the doctrine of the mercy of God in Christ as revealed in the Bible, not excluding the mysteries of the divine being, to the extent that they are revealed and can thus be known. For, setting aside much that is dubious about the words not excluding, and so on, it will usually be disputed between heretics and the orthodox whether the mysteries of the divine being are clearly revealed in this or that biblical text, and whether these should be understood in one way or in another. For it is an obscure deﬁnition that does not render an obscure thing clearer. Neither, though, is it made clearer if from the application of the deﬁnition, contradictory things are ascribed to the deﬁniendum. Not to mention here that one must not confuse the foundations of faith in the special article on justiﬁcation with the foundations of faith in all the articles, in so far as faith is taken to mean a formal creed.8 §14. We must not let it pass, though, when error in the foundations of faith is understood as an error in relation to a creed as such, as this treats creeds [symbola]9 rather than the Holy Scriptures as the foundations of faith, which is to papalise or, even more so, to Justinianise. For the Emperor Justiniann explicitly acknowledged that he accepted the doctrines of the four Ecumenical Councils in the same manner as the Holy Scriptures. Without frankly and openly acknowledging Justinian, the hereticators seek to mask their opinion that the foundations of faith consist in the creeds. [They do this] either by making a great protestation that the Bible alone is the norm

7 8

9

n

I.e., in the earlier disputation, ‘Is Heresy a Crime?’. It is likely that here Thomasius is referring to the difference between the particular article in the Formula of Concord that deals with how man is justiﬁed through faith in Christ – article iii, ‘The Righteousness of Faith before God’ – and the notion that all the articles are fundamental for justiﬁcation or salvation. In the ﬁrst instance, the symbols or symbolic books refer to the three ancient creeds adopted at the time of the Formula of Concord to demonstrate Lutheranism’s continuity with the ancient church: the Apostolic Creed, the Nicene Creed and the Athanasian Creed. More broadly, they refer to formal creeds in general. Nov. 131, c. 1. [The Novellae Constitutiones, or later additions to the Justinian legal corpus.]

On the right of Protestant princes regarding heretics

§15.

§16.

§17.

§18.

10

o q s t

175

and foundation of faith, or through obscure and meaningless distinctions between primary and secondary norms, and so on, which cloud the mind of a reader susceptible to the prejudice of authority. But do we want to say nothing about the right of the prince regarding heretics because we do not know what heresy is? In fact we will freely say something about this, but only when we ﬁrst provide a clear and concrete deﬁnition of heresy. But a true deﬁnition of heresy is one that can be sensibly and easily applied to all the cases advanced so far, about which it has been asked what a prince’s right regarding heretics is. Let the theologians and the hereticators feud among themselves for as long as they want over what a heretic is. As this is a juridical matter, we will seek a juridical deﬁnition. The Emperors Gratian, Valentinian and Theodosius say: The name of heretic comprehends as subject to adverse sanctions those who have been discovered to deviate even in the slightest matter from the judgement and path of the Catholic religion.o The intention of these emperors will be clearly understood when we explain each of the words in their deﬁnition.10 The word religion here means the same as faith,p but faith is intended to mean the same as a creed.q Catholic or universal is that which should bind all subjects.r The path is the norm, creed, articles of faith and similar.s But here judgement means the same as path. Considering, though, that the emperors left the ﬁnal judgement in matters of faith to the clergy,t who also determined the articles of faith, it is then easy to see that to deviate from the judgement of the Catholic or universal religion is nothing other than to deviate from the

In Thomasius’s text footnote ‘o’ on this page appears as: L. 2. Cod. von Ketzern, which indicates lex/ law 2 of the ‘title’ (chapter) On Heretics in the Justinian Code. I have modiﬁed Thomasius’s citations in the manner indicated to make them more accessible to non-specialist English readers. Thomasius cites a sixteenth-century version of the Code of Justinian edited by Denis Godefroy (Dionysius Gothofredus), referencing somewhat broadly and relying as here on title or chapter headings. Godefroy’s edition is listed below in the Works Cited by Thomasius, together with Scott’s English translation of the Code, accompanied by page references to the chapters cited by Thomasius. Thomasius’s (i.e., Godefroy’s) section numbers do not always correlate with Scott’s, but English readers can check Thomasius’s citations using the chapter (‘title’) headings, which have been rendered common to both editions and are listed immediately following the Godefroy and Scott entries in the Works Cited. Code [of Justinian], On Heretics, l. 2. p Code, On the Catholic Faith, l. 1 pr; ibid., l. 3 pr. Ibid., On the Catholic Faith, l. 1 pr; l. 7, §4, at the end; ibid., l. 8, §6. r Ibid., l. 1, pr. Code, l. 2, pr; l. 7, §4 & 5, ibid.; Nov. 131, c. 1. Code, On the Exalted Trinity, l. 4; Code, On the Most Sacred Churches, l. 6.

176

§19. §20.

§21.

§22.

11

u

Appendix judgement of the clerics.u Deviation, however, signiﬁes the divergence of those who are on this same path. Heresy, therefore, will be the slightest dissent of those belonging to the same sect of Christians from the judgement of the clergy and the creeds they have confected as norms for the faith of others.v The clergy is a civil status pertaining to the church [status Reipublicae in Ecclesia] which, under the appearance of devotion and worship, affects a special holiness above the other estates,w arrogating to itself direction [Herrschaft] of their conscience.x For this reason, in German, the clergy are called the religious [Geistlichkeit], also the spiritual fathers [Geistliche Väter],y father confessors [Beicht-Väter] and so on. Over against them have been set the laity,z a civil status pertaining to the church which, under a worldly and scarcely Christian life, affects a greater freedom of conduct than the clergy and, in order to obtain this, patiently suffers the clergy’s tyranny of conscience, intolerable as this may be to all true Christians. As a result, in German, the laity is also called: the secular [weltlich] estate, similarly, spiritual sons and daughters,aa or spiritual children [Beicht-Kinder]. Even though Canon Law describes the clergy and laity somewhat differently,ab we have looked more to the matter itself than to the Canons. But experience shows, and none among our [Lutheran theologians] would deny, that the deﬁnition of the clergy and the laity we have just given agrees exactly with the Catholic clergy and laity. In which case we would no more turn to the deﬁnition given in Canon Law than, for example, today’s natural law authors would turn to Tribonian’s11 deﬁnition of the law of nature. For deﬁnitions do not belong to the rights of the legislator.

Tribonian (c. 475–545), was the Roman jurisconsult who directed the compilation of the Corpus Juris Civilis at the behest of Justinian I.

Code, On the Exalted Trinity, l. 1, §1, Gothofredus; add Code, On Heretics, l. 2, cap. 9; Code, On the Exalted Trinity, l. 3, §3; Code, On Heretics, l. 8, pr. & §1. v See Gothofredus, as above. w Can. 1. init. dist. 30. can. 7. caus. 12. qu. 1. [= Canon Law/corpus juris canonici (CJC ), initio 1, distinctio 30, canone 7, causa 12, questio 1. Thomasius cited Canon Law in the sixteenth-century edition of the Perugian canonist, Giovanni Paolo Lancellottus. See below in Works Cited by Thomasius.] x Code, On the Most Exalted Trinity, l. 1; ibid., On Heretics l. 2. y Code, On the Bishops and Clergy, l. 42, §1, l. 48. z CJC, can. 7. caus. 12. qu. 1. aa Code, On the Bishops and the Clergy, l. 42, §1; l. 48. ab (CJC ), d. can. duo sunt genera 7, caus. 18, qu. 1.

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§23. Hence, even though Canon Law deﬁnes heresy and heretic in a somewhat different way,ac yet the emperors are closer to the mark, because in their above-mentioned deﬁnition they look more to the matter itself. This has led to a situation in which the theologians, having more regard to the obscure deﬁnitions of heresy in Canon Law, feud with each other over the characteristics of heresy and their application to actual cases. The jurists, however, follow the clear deﬁnition of the emperors, and can apply this quite easily to all cases. §24. For, just as the clergy prescribe what other people should believe, so they also determine when a man or a community deviates from the faith of the church or the creed. They do this either through Councils or Synods, or through academic tribunals, or through the pronouncement of a powerful cleric (like the pope), or in decrees.ad In other words, when it comes to hereticating syllogisms, the clerics settle not only the major premise, but the minor one as well. They teach not only that someone who contradicts the books of the clergy is a heretic but, when it is doubtful whether someone has actually done this, then the clergy themselves declare that he has. Moreover, this declaration is palpable and strikes the senses. §25. In fact it often comes about that the dissent from the common books of the clergy is so slight that impartial lay-people can scarcely see it. Often the controversy is only over a letter, or a word or term of art, but if the clergy declare that the deviation is a heresy, then it will be held a heresy in Canon Law. In other words, the gravest of crimes arises from something regarded by the laity as a small thing. For this reason, the emperors use the formula: even in the slightest thing. §26. We ﬁnd an example of this in church history, where the Arians and the orthodox quarrelled with each other over the words homousios and homoiusios.12 According to Eusebius,ae Constantine the Great’s letter to Alexander and Arius also pertains here. For Constantine said that both parties shared the same view of religion, so that they could easily reach a settlement and become one. Moreover, he said that the division between 12

Applied to the relation between Jesus and God, homousios means ‘of the same substance or essence’, whereas homoiusios means ‘of a similar substance or essence’. The latter doctrine formed part of the so-called Arian heresy which denied the trinitarian formula that God’s three persons were of a single essence. In tying this momentous deviation to the difference of a single letter or phoneme, Thomasius was driving home his polemical point regarding the clerical magniﬁcation of doctrinal minutiae, irrelevant to the moral condition of ordinary Christians.

ac

(CJC), can. 26, 27, 28, caus. 26, qu. 3. Code, On Heretics, cap. 9, x. ae [Eusebius], The Life of Constantine, bk. 2, ch. 67.

ad

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them is for the sake of a poor little letter in the matter; [that] it is a vain quarrel among idle people about such minutiae; [and that] it is a rash, unworthy and foolish question about a thing few would fuss over. The emperor thus spoke as a lay-person. As a result of the fact that the bishops at the Nicene Council reached a different determination, however, this triviality became a matter of such great moment that whoever wants to be saved must accept their decree as the truth. §27. One could also understand the strife over minor things in this way: that the questions of the wrangling clergy are so contrived that they appear to be theological questions of the greatest moment, whose resolution is esteemed as if it were the word of God. In fact, though, when seen in the light, they signify nothing more than the reckless application of philosophical terms (often taken from pagan philosophy) to the mysteries of the faith – which are mysteries precisely because they cannot be conceived philosophically. Either this, or [they signify] a twisting of the words of Scripture to suit scarcely sane philosophical hypotheses. §28. Some would ﬁnd it paradoxical if I said that from the time of Constantine the Great to the Reformation, all of the controversial questions, which were supposed to belong to the Catholic faith,13 and from which heresies arose, were in fact purely and simply philosophical – metaphysical and logical for the most part; and, therefore, that myriads of men have been butchered and banished not for God’s sake, but for the sake of Aristotle’s or Plato’s metaphysics. Nonetheless, this paradox is only too true. Those who do not believe it need only read the Panarium of Epiphanius, and the history of the Councils.14 Only in them can one tally all of the conﬂicts over the terms essence, persona, hypostasis, substance, property and similar. We can consider here the causes for which anathemas were pronounced on people; for example, on those who supposed the existence of the antipodes, or on those who teach that the earth moves around the sun, and similar things. §29. The emperors did not mean, however, that dissent in minor matters is always a cause of heresy; but that even a slightly dissenting opinion is enough to excite the clergy to declare someone a heretic. All the same,

13 14

The German version uses ‘Christian faith’ [Christlichen Glauben] here. Epiphanius’s Panarium – Contra octoginta haereses opus, Panarium, sive Arcula, aut Capsula Medica appellatum, continens libros tres, & tomos sive sectiones ex toto septem – was a vast catalogue of heresies from the early church. It was translated from Greek into Latin in 1543 by Lutherans seeking to battle heresy inside Protestantism.

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§30.

§31.

§32.

§33.

179

there are frequently serious causes for dissent, as when prior to the Reformation many witnesses of truth testiﬁed to the Papalist tyranny, also to the ambition and greed of the clerics, and were thus counted among the heretics.15 These reasons for dissent even underlie Luther’s Reformation. On the part of the witnesses of truth, there was a serious cause for dissent, because the truths which they defended as necessary for restoring the welfare of the people were being undermined by the clerical tyranny of conscience. On the part of the clergy, there was a contrary and no less serious cause for disagreement and hereticating, in that these truths attacked the fat bellies, fractious heads and full purses of the clerics, threatening their livelihood. But because it was inconvenient for the clergy to reveal the true exact causes for anathematising the laity so, in their Councils and hereticating writings, they condemned slight metaphysical disagreements and the like, under the pretext that these were serious causes. Similarly, in their so-called manifestoes, secular kings rarely set down the true causes of war, but pretend something different for the sake of appearance. Although the clerics always cried that there must be only one faith, one religion, and therefore also only one creed, yet history shows that the faith of the clerisy and their creeds have changed in innumerable ways. Thus, if I am right, Hilarius wrote that: In antiquity the Christians had one faith (and proved that faith), but now, because they have no faith, they do nothing but write about faith. In this regard it should be noted that the names of heresy and heretic change in so far as there are different creeds. And thus it can easily happen that an orthodox believer can become a heretic and a heretic an orthodox believer, not because he changes but because the creed alters. The disagreements from which heresy arises thus originate with the clergy itself.af Afterwards, though, through the promise of remission of their sins, or through hope of temporal reward, the laity were persuaded that the secular branch should support and execute the

15

The topos of the ‘witnesses of truth’ was an important one for Protestant historiography. Through it many pre-Reformation ﬁgures deemed to be heretics by the Catholic church – including Johann Tauler, John Wyclif and Jan Hus – were reinterpreted as anticipating key imperatives of the Reformation, thereby being retrospectively conscripted to the Protestant cause.

af

One ﬁnds a charming text in [Code], Of the Bishops and Clergy, l. 15, where the gloss explains the word clericos; on this, or on heretics, also see: CJC, can. 33, caus. 26, qu. 3.

Appendix

180

§34.

§35. §36.

§37.

ag

decisions of the clerics. Through such execution, however, heresy was not eliminated, only repressed for a while, afterwards getting all the more out of hand, [as] the passions are wont to break out all the worse when they have been restrained through external force. For the other party of clerics, who have been declared heretics, neither forget nor forgive, readying themselves so that after the prince’s death, or even during his life, they can bring the court over to their side and, in this way, overthrow the prior edict through a contrary edict and new heretiﬁcation. This is illuminated by, amongst other things, the example and history of Arianism, and of the Nicene Council and those following it. For it was easy for the clerics siding with Arius, just as for those adhering to Alexander, each to declare the other party heretics. After this, now one, now the other party was in favour with the emperor. And the Life of Constantine shows that this prince was so pitifully led around by the nose through clerical cunning that there is good reason to think that he himself had no idea what religion he was, even though the Catholics still commonly vaunt that he sided with them. The clergy in both camps had so dreadfully obscured Christian teaching with metaphysical subtleties that the laity could not understand this stuff. Rather than inquiring into Christianity and the meaning of the Holy Scriptures, one sought the true meaning of the Nicene Creed, which had become the norm of the Holy Scriptures. If we now wish to summarise what we have said regarding the juridical deﬁnition of heresy, then we could not do better than to say: Heresy is dissent from the ruling religion. And because opposed things also have opposed natures, and heresy as everyone understands is opposed to orthodoxyag and the Catholic religion, so at the same time in this light one could provide no better juridical deﬁnition of orthodoxy than to say: Orthodoxy is the ruling religion.ah Nothing is left then but to correctly explain the phrase ruling religion, so that no ambiguity remains. The ruling religion is not that adhered to by the prince or the majority of the population in a country. It is possible for the prince or the majority population to adhere to a religion without the subjects or minority population having to relinquish their freedom of understanding; and, if things stand thus, then neither of the

Code, On Heretics, l. 10.

ah

Code, On the Most Exalted Trinity, l. 1, §1.

On the right of Protestant princes regarding heretics

§38.

§39.

§40.

§41. §42.

§43.

ai

aj

181

two religions is the ruling one, just as neither is heretical or orthodox in the juridical sense. For there to be a ruling religion, it is necessary that the clergy arrogate to itself lordship over conscience, and have the secular authorities at their disposal, so that either the country’s prince or the majority of the population will help them. In other words, so that they not only have the intention but also the power to rule. It can thus come about that there are two or more ruling religions in a single commonwealth: namely, when there are several different congregations, and the clergy of each party wants to rule the consciences of the other, and are supported by the secular authorities. And here one should not be surprised that from different viewpoints each of these religions is orthodox and heterodox at the same time. Religions are orthodox to the extent that they rule and persecute another religion; they are heretical in so far as there are different opinions among them and one is oppressed by the others. At the same time, this situation need not give rise to great tumult in the commonwealth if, that is, the laity stipulate mutual toleration through a compact of peace – regardless that the clergy murmur against it – such that each religion is held to be orthodox from the juridical viewpoint. From the clerical viewpoint, though, each religion will be orthodox to itself, but heretical to the clergy of the others. From this it can be clearly understood that the clergy are the principal cause of heresy, while the secular branch or temporal authority is nothing more than the instrumental cause.ai According to the principles of clerical law, the prince thus enjoys no more right in relation to heretics than is conceded to him by the clergy. So, in this chapter we must only look at what the clerics want to do with heretics in accordance with their right, through which they rob the prince of his right in religious matters. I call clerical law that which strengthens the clergy in their tyranny over consciences, supporting them with decrees and laws. Such law, as we will show, is of two kinds: namely, Justinian Law and Canon Law. For the Justinian Law of the emperors is thoroughly Papalist in ecclesiastical matters.aj

See Code, On the Most Exalted Trinity, l. 7 & 8; Nov[ellae Constitutiones] 42, 6, 17, ut inquisitionis de haeret., head and end of ch. See Cornelius à Rynthelen, Iuristam Romano-Catholicum per integr.

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§44. We have said that a heretic is one who dissents from the judgement of the clergy, and from their books.ak If one of the laity or a member of the minor clergy does this, and they have no followers, then everything is alright. If, however, a signiﬁcant number of clergy dissent from the others, and it is necessary to determine what the country’s ruling religion will be, and which party has the superior number of people, then a public decision must be made, which is referred to a Council or Synod. Now here we have the origin of the Councils. §45. For a Council is an assembly of clerics, established by decree of the prince, either directly or under some pretext, for the purpose of declaring dissenters to be heretics and coercing them through the power of the secular branch. This deﬁnition will be proved through application to particular councils. §46. All subsequent councils had their origin in the time of Constantine the Great, who was the ﬁrst to give the clerics the freedom to declare heretics, for which they laid down a famous test at the Council of Nicaea.al §47. The assembly of the apostlesam cannot be properly called the ﬁrst Council, or be counted among the Councils,an because: (i) it did not deal with the things one should believe but with those one should do; (ii) in it one acted through the accommodation of both parties; (iii) unanimously, rather than following majority vote or the decision of the clergy; (iv) without one party coercing the other, and so on. Neither are the assemblies of bishops before Constantine’s time properly called councils,ao because they were not instituted by imperial command and lacked enforcement by the secular authorities, except for the case where the disgruntled clergy had to beg Emperor Aurelius for help against Paul of Samosata after the fact.ap §48. Regarding the meaning of imperial authority, under which heretics were declared in Councils, I understand it to mean that the emperors assented to the convocation of councils under their name, in a word,

ak al

am an ao ap

See above, §18. (CJC ), can. 1 in pr., dist. 15; Lancellotti, Instit. Iur. Canon., l. 1, tit. 3, §2; opposed by Ziegler. [Caspar Ziegler (1621–90) was a Protestant jurist whose critical commentary on Lancellottus’s edition of canon law was used by Thomasius. See below, in Works Cited by Thomasius.] Acts of the Apostles, xv. See Grotius, De imperio summarum potestatum circa sacra, c. 7. n. 2. Against this is Ziegler, at the abovementioned place. Eusebius, Ecclesiastical History, bk. 7, ch. 24.

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183

that they executed the will of the clergy. Neither does Canon Law deny that the legitimate power to call a Council lies with the Apostolic Seat,aq or with the clergy,ar in which regard it is not much opposed by Justinian Law.as §49. Neither is much to be gained from imperial law, despite the claims of the clergy who [through it] try to show that councils are convoked through decrees of the emperors.at Such decrees mean nothing more than that the clergy usurped the name of the emperor in order to strike fear into the opposing party. And so one must look not at the name under which a convocation takes place,au but at who is hiding behind this name. §50. An action16 is not to be imputed to someone who was compelled to act by force, who was incapable of resisting, or who has acted frankly from fear. An honest man can be subject to various kinds of fear. This includes fear of imprisonment, so why not also the fear of hell, the fear of excommunication and the fear of rebellion? §51. Even though a prince has the right to call a Council, this will not help him much if he lacks the right to decide something in the Council. For when it does not include the right to issue decrees and judgements, the right to call a Council is more a service than a right. And the emperors have indeed left inquiry and deﬁnition to the clergy alone, while worshipping their decretals as if they had been delivered by oracles.av §52. And this to such an extent that no one, neither clergy nor laity, was permitted even to grumble about the decrees of the Councils, or to publicly investigate their truth, in speech or writing. The judgements of the revered Councils would thus not suffer dishonour, [as they would] if someone examined anew something already resolved and formally decreed, wishing to make it disputable.aw In other words, no one could thus cast the slightest doubt on the infallibility of the clergy or their Councils. §53. Yet it must not be said that the clergy always created heretics in Councils. They did this only when it seemed opportune, and when 16

In this case, the emperors’ action in convoking councils at the behest of the clergy.

aq

[CJC], dist. 17 as a whole; also, can. 1 & following. Dist. Lancellotti, l. 1, tit. 3, §2. Lancellotti, ibid., §5 & 6. as Nov[ellae Constitutiones], 123, c. 10. Code, On the Most Exalted Trinity, l. 4. Regarding which Lancelotti is opposed by Ziegler at bk. 1, tit. 3, §2, p. 14. Code, On the Bishops and Clergy, l. 14; Nov[ellae Constitutiones], 42 & 123, c. 10. Code, On the Most Exalted Trinity, l. 4.

ar at au av aw

184

§54.

§55.

§56.

§57.

ax ay az

Appendix they had good hope of carrying the majority of votes. When they did not have this hope, the clerics wreaked their animus against dissenters outside the Council, by relying on the rabble or the emperor. Thus we know that before the Council of Nicaea, and even before it was thought of, Alexander unilaterally removed Arius from his ofﬁce and drove him from the city.ax We also know Nestor’s words to the Emperor Theodosius, when Nestor was still an orthodox believer and a great scourge of heretics: If your Imperial Majesty gives me the earth so that it can be puriﬁed of heretics, then I will give your Imperial Majesty heaven in return. If your Imperial Majesty will come to my aid in driving out the heretics, then I will come to the aid of your Imperial Majesty in driving out the Persians.ay The more clearly one sees that the clergy concern themselves with nothing so much as how to preserve their authority and infallibility, the more one realises that it is not easy to ﬁnd a ﬂagrant vice subject to such severe and various punishments as the many and varied punishments for heresy outlined in the laws. When it comes to the judicial punishment of delicts, it is as if there could be no more enormous crime in the world than heresy. The punishments of heretics have commonly been divided into ecclesial and civil punishments. Such a division might be tolerated as long as one does not mean by ecclesial punishments the use of spiritual weapons by the church to produce a spiritual effect on heretics, but those punishments directly pronounced and imposed by the clergy and then immediately supported by the civil laws and authority of the secular branch. For, if one has regard to their effect, then all ecclesial punishments are civil punishments. Given this mixing, it should not be thought too ill of us if we do not exactly respect this division in our account of these punishments. Now, among such punishments the pre-eminent is excommunication, which does not remain within the limits of exclusion from the community of the church, but is an exclusion from all of civil society.az Here we have the example of John the Evangelist’s

[Anon.] Histoire du Concile du Nicée, p. 15. Socrates [Scholasticus], in his historia Ecclesiastica, bk. 7, ch. 29. Albaspinaeus, Observationes Ecclesiasticae, n. 2; Can. Apost. ii [Apostolic Canons]; Conc. Laodic. can. 33 [Synod of Laodicea, 4th cent.]; Carthag. iv. can. 73 [Council of Carthage, ad 491]; Arelat. ii. can. 30 [Council of Arles, 5th cent.]; Avern. can. 6. & 11 [Synod of Auvergne, ad 535]; Epaun. can. 15 [Council of Epaon, ad 517].

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185

[excommunication of ] Cerinthus,ba which was accomplished and reinforced by cruel ceremoniesbb and horrible curses – extended to all places and actions, all bodily members and all of the senses – besides execrable adjurations,bc thereby introduced into Christianity from Judaism.bd Such excommunication was also extended to those who sheltered, supported and protected heretics.be §58. Now since it inﬂicts the greatest of infamies,bf it could not be otherwise than that the other things and effects concomitant with infamy will attach to those who have been excommunicated, and, since excommunication is the worst kind of infamy, it must have even worse concomitants: namely, that one may not keep faith with heretics,bg indeed, that subjects may no longer obey their ruler but are absolved from obedience to him.bh §59. As heretics are permitted no dignities or public ofﬁce,bi for this reason a heretic may not become emperor.bj Further, the children of heretics are disqualiﬁed from public ofﬁce and and from ecclesial beneﬁce up to the second degree of the paternal line and the ﬁrst degree of the maternal.bk §60. On account of heresy, a betrothal and even a consummated marriage will be dissolved.bl Just as heretical women lose their right to a dowry,bm and a wife who knowingly marries a heretic loses her dowry, which is paid to the public purse.bn §61. Heretics forfeit their paternal authority.bo Further, heresy is among the causes by which someone can be disinherited, with regard to both the father and the son.bp In fact, generally speaking a heretic cannot inherit,

ba

Eusebius, Ecclesiastical History, bk. 3, ch. 28 [for Thomasius’s ch. 22]. [CJC ], dist. 1, can. 11, qu. 3. bc See the examples from the Council of Aquisgranensi [Council of Aachen] ad 826, excerpted by Boxhorn in his Historia universalis, and cited from here by Ægidius Strauch in his disputation Priscae ecclesia in censendis haereticis aequitas, §19. bd Strauch, ibid., §20. be Code, On Heretics, cap. 8, x. bf Code, On the Most Exalted Trinity, l. 1, §1. bg In the Decrees of the Council of Constance, ad 1414. bh Code, On Heretics, as last, x. bi Nov. 37, Nov. 45, pref.; Code, On Heretics, l. 18; Code, On Litigation, last section. bj [CJC ], Venerabilem 34. X. de Elect. & El. Pot. [Cap. 34 in the decretals of Gregory IX, regarding the creation of emperors, de Electione & Electi potestate, and referred to as the Venerabilem.] bk [Code], On Heretics, cap. 15. bl [Code], On the Bishops and Clergy, l. 16; also, Code, On Betrothals, l. 5; [Code], On Divorce, cap. 6. x. bm Nov. 109, c. 1. bn [Code], On Heretics, l. 6, §14. bo [Code], On Heretics, l. 6, §2. bp Nov. 115. c. 3, §14; & c. 4, §8. bb

186

§62. §63. §64.

§65.

§66.

bq br bs bt bu bv by ca cc ce

Appendix neither in the absence of a will nor through a will,bq and thus cannot obtain a bequest or entrusted goods,br even if these are bequeathed to him through a military legacy.bs Their books will be banned and burnt under command. In fact even those who read them will be subject to corporal and capital punishment.bt If they are lay persons, the possessions and goods of heretics will be conﬁscated, even after their death. If they are clergy, though, then their goods will go to the church which provided their living.bu No lawyer or notary is permitted to assist them.bv Even excommunicants will be permitted to testify against them. In fact it will not even be necessary to inform them of the names of the witnesses and complainants.bw Testimony in a heresy case is permitted even if it is perjured, as proved by contrary testimony.bx Heretics, though, are not themselves permitted to testify against the orthodox.by If a heretic has received a public beneﬁt or rescript, then it will be invalid.bz Those sitting in the government, even those having only de facto rather than de jure jurisdiction, may execute justice against heretics.ca For heretics are permitted no defence or appeal.cb Heretics can be granted the punishment of exile.cc But heretics can also be damned to perpetual imprisonment.cd In fact they can be punished with the most horrible of executions,ce and ﬁnally be denied an honourable burial.cf Further, the clerics have persuaded the emperors of all manner of things, advanced in their own interest, and which not only fail to prevent the clergy’s tyranny of conscience, but actually assist them in this. First, they have laid this down: The clergy alone were to be the chosen inheritors of God. They were to be kings who rule themselves and others in virtue, and must thus have a kingdom in God, which would be signiﬁed by the crown or tonsure on their heads. Lay or secular persons, however, were to be a second class of

Code, On Heretics, l. 19. Code, ibid.; Nov. 144, c. 1, which repeals Nov. 129. Code, as last; Code, On the Will of a Soldier, l. 5. [See also, Scott, Code, On Heretics, l. 12, p. 71]. Code, On the Most Exalted Trinity, l. 3, §1; Code, On Heretics, l. 6, §1, & l. 8, §5; Nov. 42. c. 1, §2. [Code], c. 13, § damnati de haeret; c. 8, § penult. de Haeret. in 6; as last, de praescript. in 6. bw [Code], c. 11, de haeret. Ibid., c. 5; ibid., last c. in 6. bx Ibid., c. 8. Code, On Heretics, lex penult. bz Code, ibid., l. 5 at the end. [Code], On Heretics, c. 6. cb [Code], On Heretics, c. 17, in 6; c. 13, x, ibid. [Code], On Heretics, l. 5; l. 8, §2, ibid. cd [Code], On Heretics, c. 15. Ibid., l. 5, §1; l. 8, at the end; l. 11, 12 pr, 16. cf [Code], On Heretics, c. 8.

On the right of Protestant princes regarding heretics

§67.

§68.

§69.

§70.

§71.

187

Christian: they can become blessed if they avoid vice through good deeds, lay their offering on the altar, and pay their tithes.cg Among the clergy, the bishops were to be the husbands of the holy churches, and must be as devoted to the churches as if the churches were their wives. They were to be spiritual fathers of all the faithful, or have all Christian and orthodox people – that is, all the laity – as their children.ch For this reason the clergy alone were to know the secret of the Kingdom of God, while the laity [were to know this] only through parables. The laity though were supposed to be simple and uneducated people who should not imagine that they could fathom the high things of the Scriptures. On account of which, the mysterious sacraments of the faith must [not] be explained to them, because one must not present the sacred to dogs, or cast pearls before swine. Yet those who gratefully accepted the pearls – that is, the doctrines and parables of the clergy – would not be swine or dogs.ci Now, just as corporeal fathers tell their children what they should do, and instruct them, so it follows from what we have said above that the clerics had to tell the laity what they should believe. From this a formula-faith has arisen.cj Because this formula-faith was supposed to be legally valid, though, the laity were forbidden to gather together in accordance with their desire to understand the Bible, and to edify each other from it. In fact such assemblies were regarded instead as clandestine conventicles, infringing Christ’s preaching ofﬁce, which belonged to the clergy alone.ck Whoever contravened this was held to be a heretic.cl As a result, no lay-person was permitted to remonstrate with a clergyman, no matter what he might do. Neither was the excuse acceptable that a donkey had punished a prophet, or that it was Christ who said: Who among you can accuse me of a sin? For the clerics said that one had to distinguish between the punishment of a brother – to which pertained the example of the donkey who punished Bileam – and the public punishment of a holy father.17 Unless a prelate, certain of his

17

According to the parable, the prophet Bileam (Balaam) was punished by his donkey, whom God had gifted with human language. Thomasius mocks the clergy’s claim that the parable applies only to punishment among brothers, that is, within the clergy.

cg

[CJC ], can. 7, duo sunt genera, caus. 12, qu. 1. Code, On the Bishops and Clergy, l. 42, §1; l. 48; [CJC ], can. 7, caus. 12, qu. 1. [Code], On Heretics, cap. 12, in scholium below 1, 2. Code, On the Exalted Trinity, l. 1, 2, 5, 6. ck [Code], On Heretics, cap. 12 & 14. [Code], On Heretics, arg. rubr. d. t; add, [CJC ], can. 35. caus. 24. qu. 3.

ch ci cj cl

188

§72.

§73. §74.

§75.

§76.

§77.

cm cn co cq cs ct

Appendix own innocence, voluntarily exposes himself to the accusations of his subjects, as in the example of Christ.cm It was held to be an even greater mortal sin if someone who previously has been conﬁrmed in the articles of faith either falls into doubt or wants to dispute them, whether in public or private, and regardless of whether he is a cleric or a layperson.cn From this it follows automatically that no one is permitted to argue about the articles of faith with heretics,co nor therefore listen to them, nor defend them.cp Nonetheless, heresy was to be the stubbornness and foolishness of an obstinate heart,cq and he was a heretic whom the Roman church – or individual bishops with reports from the clergy – had declared to be a heretic.cr From this it also followed that the crime of heresy was a purely ecclesiastical crime, so it was in no way allowed to be something about which the laity to some degree could know and judge. The inquisitorial ofﬁce in cases of heresy thus belonged to the clergy alone, so that the civil magistrates were not competent to rescue a captive heretic from the power of the inquisitors or to free him from prison; nor [could they] refuse to execute the injunction of the inquisitor or they would themselves face the punishment of excommunication and, after a year under the ban, the punishment of heresy itself.cs And in fact the clergy have themselves defended excommunication with the example of the apostles, pretending that from here they had learned to consign to Satan the spirits of those who erred and led others into error, so that such people would cease from sinning.ct In fact they have taught: We must keep to the Gospel commandment, where the truth itself prescribes that if our eye or foot or our right hand offends us, we should hack off the hand; for it were better to do without this member of the church than to join him in eternal damnation.cu

[Code], On Heretics, cap. 12. Code, On the Most Exalted Trinity, l. 4; On the Bishops and Clergy, l. 15; On Heretics, c. 2, in 6. [CJC], can. 36, caus. 24, qu. 3. cp [Code], On Heretics, cap. 11. Code, On the Most Exalted Trinity, l. 2. cr [Code], On Heretics, cap. 9. [Code], On Heretics, cap. 17 in 6; add, cap. 8, 11, 12 ibid., & Clem, l. 2, ibid. Apostolic Canons 13, caus. 24, qu. 3. cu Ibid., can. 34, caus. 16, qu. 3.

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189

§78. It is well known that everyone who wants to defend excommunication or exile, continually mouths the saying of the apostle: Avoid a heretical man when he has been admonished one or two times.cv §79. If such people are reproached for acting against the biblical parable in which Christ commands that one should not weed out the tares,18 then they answer thus: Yet Christ has elsewhere expressly commanded excommunication, and said: If your brother sins against you and pays the community no heed, then regard him as a pagan and publican.19 From this [they argue] it can be clearly seen that excommunication and weeding-out are different things, because excommunication is a discipline.cw §80. Concerning the secular punishments that the laity – that is, the emperors and secular authorities – must execute, the clerics have taught: the power of the church must be reinforced by the power of imperial authority.cx It would be the most splendid, and noble evidence of the faith and love of the secular princes, were they to preserve the respect and reputation of the clergy, to whom all must be subject.cy Framed by the clergy on this basis, the principal and fundamental article of faith of the secular princes was that they should ﬁrmly believe [the following]: That the purity and honour of the clergy, together with their burning love of Christ and their unstinting prayer, bring the commonwealth great favour and increment; and the more the clergy are honoured and decorated, the more the commonwealth would come to receive.cz §81. In order to keep the princes from realising that this made them into the subjects of the clergy, however, the clerics merged their teaching ofﬁce with the ofﬁce of the prince.20 And in order to arrogate secular rule [imperium], the clergy permitted the princes – who had become their 18

19 20

cv cw cy

Christ’s parable of the tares (Matthew 13: 24–30) – in which a farmer refuses to uproot the weeds in his wheat ﬁeld for fear of harming the wheat – was widely interpreted as a warning against attempting to extirpate heretics prior to the day of judgement. As Thomasius points out, however, some clergy found ways around this obstacle to persecution. Matthew 18: 17. In this and the paragraphs immediately following, Thomasius is drawing on Pufendorf ’s doctrine of the mutually exclusive ofﬁces (or moral personae) of the ruler and the teacher. As outlined in his De habitu religionis christianae ad vitam civilem (On the Nature of Religion in Relation to Civil Life) of 1687, Pufendorf ’s doctrine constructed the ofﬁce of ruler in terms of the coercive preservation of social peace, and the ofﬁce of teacher or preacher in terms of the loving transmission of divine truths, thereby building a wall between civil security and religious salvation. Ibid., can. 29. Ibid., note 37. cx [Code], On Heretics, c. 9, scholium 1 below. Code, On the Most Exalted Trinity, l. 8. cz Code, On the Bishops and Clergy, ﬁnal section.

190

§82.

§83.

§84.

§85.

§86.

da db dc

dd de dg

Appendix lickspittles – to pursue the teaching ofﬁce through their laws, passed to impose religion on their subjects. Thus it was said that the princes would acquire the more grace from Christ the more they strove to use their power for this purpose, and instructed their subjects in these matters.da It is thus quite common in imperial laws for the emperors to pronounce divine punishment on those who infringe them,db even if pronouncing divine punishment on the unrepentant in fact belongs to the teaching ofﬁce. And occasionally such threats of divine punishment occurred in the manner of a blasphemy (so to speak), as if God were the emperor’s vassal, who would be obliged to descend from heaven to punish people at the emperor’s pleasure.dc And, so that the princes would be all the more obedient to the clerics in this regard, the clergy in return allowed them to live as they wished, promising them forgiveness of their sins and eternal blessedness, if only they would bravely persecute and extirpate the heretics.dd From this a single virtue was made, namely, the persecution of heretics, and a single vice, namely, to be a heretic; that is, to disagree with the clerics. In virtue of this, the clerics preached that the heretics were like the publican who mixed water with his wine, and gave the people poison to drink in the golden chalice of Babylon; for, in the words of the Apostle, they had the appearance of piety, but completely lacked its inward power.de It further came to be taught that all those who did not hold to the unity of the Catholic church – that is, who erred in a particular article of faith or in one of the church’s sacraments – could ﬁnd no aid to salvation in either baptism or alms-giving (even if they gave to excess), or in their willingness to suffer death in the name of Christ.df The clergy taught: One must devoutly believe and have no doubt that all heretics and schismatics had gone over to the devil, his angels and eternal hellﬁre, if they did not reconcile themselves to the Catholic church before their end.dg

Code, On the Most Exalted Trinity, l. 3. Code, On the Bishops and Clergy, l. 47, §1; l. 48, §8, and at several places throughout. Code, On the Bishops and Clergy, ﬁnal section, ending with the words: we desire this of heaven [ex cælo volumus]. [Code], On the Catholic Faith, cap. 13; On Heretics. df Ibid., cap. 10, in scholium below. Ibid., cap. 3, from Augustine; add, cap. 8 in 6. c. 3. Ibid., cap. 3, from Augustine.

On the right of Protestant princes regarding heretics

191

§87. From this arose the custom of punishing heretics by burning them, though other doctors reckon that this punishment is based in the Gospels. For [they argue] the Gospels teachdh that whoever does not remain in me will be cast aside and dried like a vine-cutting, which one gathers and throws into the ﬁre, and must burn.di §88. Today, however, the spilling of human blood sits badly with the gentleness of the clergy, so, when they commit a heretic for punishment, the inquisitors plead to high heaven with the authorities not to spill his blood, but only to burn him alive.dj §89. Further, they have taught that heresy is a worse crime than incest, or defrauding the tax collector.dk §90. And the clerics had long ago persuaded the emperors into believing that heresy was a crime against the country and people. Reason: because something done contrary to religion – that is, following what we have advanced above, contrary to the formulas of the clerics – does harm to all men.dl §91. And since they had persuaded the emperors that the words of the emperor are the same as God’s words, it follows automatically that the crime of heresy must be graver than the crime of the violation of majesty [crimen læsae Majestatis], or at least equal to this.dm In fact, it is the most terrible of sacrileges.dn §92. Finally, after the clergy had swayed the minds of the laity, so that they believed everything desired, it was not hard for them to also convince the princes that no one should be admitted to public ofﬁce who had not already sworn a religious oath. And, as a result, while this at the beginning was no more than an oath of conformity [juramentum confessionis],do it soon became an oath of public declaration [juramentum professionis] or of promising [ promissionis].dp This, however, is contrary to both the common nature of oaths, and to the principles of the Gospels, as will be shown in the following chapter.21

21 dh

Presumably a reference to the unwritten second chapter, as no such discussion follows.

John 15. di Ant. Perez., in Code, On Heretics, n. 3. See [Charles Dellon], L’Histoire de l’inquisition de Goa. dk [Code], On Heretics, cap. 19 in 6. dl [Code], On Heretics, l. 4, §1. dm Ibid., l. 4, §4. dn Ibid., l. 8, §5. do Code, On the Bishops and Clergy, l. 19 jubemus, l. 20 nemo militet. dp Ibid., auth. statuimus. dj

192

Appendix coroll aries

1. Regarding those places in our disputation where we have spoken of the practices and persons of the clergy, in order that no one should have the opportunity to make the malicious claim that we view the preaching ofﬁce as bad and dishonourable, we should note that there is a greater difference between the clerisy and the ministry of the church than there is between a thief or murderer and a good shepherd. 2. For the ministry of the church is an ecclesiastical estate [status Ecclesiae] responsible for teaching in the commonwealth, properly chosen and charged for this purpose by the Christian community, so that they can publicly preach God’s word and administer the sacraments in the name and at the command of the church, in accordance with the adiaphoristic ceremonies prescribed by the prince. 3. The clergy or clerisy arrogate to themselves rule over the consciences of the other members of the church. A minister of church though, seeks his honour in being a servant of the other members of the church. (Matthew 23, v. 11.1; Corinthians 3, vers. 5.) 4. The division of the church into spiritual and secular, or clergy and laity, has already been rejected by many Protestant theologians and jurisconsults in public writings. But the distinction between teachers (such are the ministers) and auditors is based in Holy Scripture. 5. Now, wherever there are teachers then – so far as they are indeed regarded as teachers – there must also be auditors. So far as the teachers are ministers they will be thus distinguished from the Lord Christ, the head of the invisible church,22 and from the other members of the church, to whom they are brothers rather than spiritual fathers. (Matthew 23, v. 9.) 6. So far as the church is in the commonwealth, however, then the ministers of the church will be no less subjects of the prince than the auditors. 7. When it issues from private revenge, a civil suit (initiated against someone by oath), no matter what its nature, is against Christianity. 8. If the clergy in Protestant churches want to institute a process of religious inquisition against someone, he is not obliged to tell them of his thoughts regarding religious and ecclesial matters; for this is contrary to all law. If the clergy attempt to use a prince’s power for 22

Emending the German text here – which has ‘the visible head of the church’ – from the Latin version: caput Ecclesia invisibile.

On the right of Protestant princes regarding heretics

9.

10.

11.

12.

193

this, then the defendant can with perfect right petition the prince to spare him such proceedings. Someone who has denounced a delict, and is prepared to prove his denunciation, is exempt from civil suits by the person he has denounced; even if the civil magistrate has refused to institute a proceeding, whether on lawful or unlawful grounds. No matter what a heretic might be, yet he is a man, and for this reason one is obliged to treat him in accordance with the common law of nature. One should neither injure nor humiliate him. And one should keep one’s promises to him, and thus pay him all the respect that one man is obliged to pay to another. To tolerate a heretic in a commonwealth is nothing less than a duty of humanity. Thus, who denies this to a heretic, refusing to tolerate him, he is indeed inhuman and cruel. The spirit of gentleness and friendship, though, cannot dwell in someone inhuman and cruel. If he is innocent, then no one should be oppressed as a heretic, and he should on no account be humiliated for the sake of religion. (arg. 1. Nullus 14. C. de Iudæis & Coelicolis.)

christian thomasius, jurisconsult, councillor to the elector of brandenburg, and presently dean of the facult y of l aw, offers his greetings and service to the reader. 2 3 Although it is commonly taught that one should take care in matters of church government not to stray too far to the right or the left, so that on one side we can avoid introducing caesaropapism and, on the other, papocaesarism (as it is called), yet until now I have not been able to discover anyone who has taught how to clearly distinguish these two vices. How, though, can these be guarded against, if one has no understanding or experience of what they are? What good is it if everyone prattles that one should guard against these things, when many commit both or one of them all the more certainly because, on account of common ignorance, no one wants to admit that he perpetrates the same thing that he has damned with his own words? 23

It was common for the praeses or supervisor to append such short texts to the disputations defended by the respondent or student, in part to show his responsibility for the arguments contained in the disputation, and in part to further clarify these arguments and defend them against opponents.

194

Appendix

I know full well that these vices are commonly distinguished in accordance with the external and internal aspects of ecclesial authority; but I also know that this distinction means nothing. They say: The prince is entitled to power in external religious matters, the clergy though in internal. And a caesaropapism arises if a prince interferes in internal religious matters, and a papocaesarism if the clergy enact edicts in external matters or in other things that do not concern the church. That would be all very well if only the external and internal affairs of the church were so clearly differentiated that one need not bother that even teachers confuse them on a daily basis, and if only in this way obscure things were not explained by things even more obscure. For this reason we have already rejected this distinction elsewhere.24 And even though our rejection of this has displeased many, especially those who insist that the laity have no insight into the doctrines of church law, nonetheless, what has been said will only be clariﬁed on the basis of the present material by us. When it comes to an example of papocaesarism, everyone looks only to Catholicism, as if Protestant communities were free of this – such is the common fable, but a fable it is, and nothing more. For in many places, do not the preachers have one foot in the town halls? To say nothing of the Consistories, which will certainly not handle internal church matters, but evidently deal with external ones. If one still wants to say that this example is inappropriate for papocaesarism, that would not be wicked or forbidden, yet it would tell us little. If this is all that I gain, then by virtue of this neither I nor anyone else can learn what papocaesarism is supposed to be from the common teaching. As they have been rare in all times, so today one will ﬁnd few examples of caesaropapism, except for the fact the clergy invoke it to oppose the princes when the latter want to exercise their right in external matters. For this leads the clergy to complain as if the princes were thereby arrogating the internal matters entrusted to the clergy, attempting thus to introduce a caesaropapism. The obscurity of this doctrine means that it rarely helps the princes, but often helps the clerics. Under its guise they pretend to a divine and holy zeal which, seen in the light of day, is nothing other than a papocaesarism. In this way, they injure the princes and their rights, and when the princes oppose them, they accuse the princes of caesaropapism.

24

This is a reference to Thomasius’s Das Recht evangelischer Fürsten in theologischen Streitigkeiten, published in 1696. This treatise’s criticism of the division of church affairs into internal and external is discussed in Chapter 4 above.

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195

A prince has no right in matters commanded or forbidden by God. That is good. A prince thus either has no remaining right, or he has it only in matters that God neither commands nor prohibits. What are these latter things though if not, to speak brieﬂy, indifferent things? [Mitteldinge, adiaphora].25 But is it not the case that the princes’ right in indifferent things is absolutely denied by our clergy? Do they not accuse the princes of the vice of caesaropapism if they exercise this right? Among external things, though, what could be a more external matter than place and time? And yet the clergy also make this right of the princes controversial. Neither does enduring and continuous possession deter the adversaries. We will choose an example of this issue which ﬁrst comes to mind. There is not a religious ordinance in the territories of the Protestant princes in which rules do not occur pertaining to the time and place of church services. And yet when someone is required not to preach for longer than prescribed in the church ordinance, some claim that the ordinance infringes on internal religious matters, because Paul says: Quench not the spirit.26 On this account, for the secular authorities to limit the time of preaching, would be to contravene this divine command. They say further: they would be bad Christians who complained about the length of sermons; rather they should know to thank the priests for being so generous. Priests preach at length from the impulse of the Holy Spirit, which preachers neither could nor should resist. The preaching ofﬁce is an ofﬁce of the Holy Spirit [heiligen Geistes] and, for this reason, in the German language priests are simply called the religious [die Geistlichen], ahead of others. The pulpit is the workplace of the Holy Spirit. One should not condemn long sermons because they are based on the Bible, where Paul and Christ himself preached at length. On this account, one should listen to long sermons with respect and attentiveness, and the prince himself should do likewise, following the example of Constantine the Great. (Vit. Const. 1. c. 13. etc.). Poor as they are, these reasons still make such an impression that pious people occasionally allow themselves to be seduced by them, as we have noted. Many things are mixed in here which do not belong together. It is true, those who ﬁnd God’s word tedious are hardly Christians, so too, therefore, those who are affected by nausea when they hear the sermons of 25 26

See the discussion of Thomasius’s disputation on adiaphora in Chapter 4 above. 1 Thessalonians 5: 19.

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those who speak from impulse of the Holy Spirit. But that is not the question. In harshly demanding a debt from a fellow slave, the slave in the Gospel did wrong, even if there was no exception on the basis of legal incompetence. So too those listeners do wrong who ﬁnd God’s word tedious; yet a preacher is not on this account freed from his duty to the prince and the Christian community. It will thus not be asked here whether long sermons are wrong and reprehensible in themselves. For who has ever said such? For this reason, the examples of Christ’s and Paul’s sermons do not apply here. And they apply the less the more the sermons of Christ and the Apostle differ from our sermonising of today, which one learns as a human art in homiletic colleges. Moreover, neither Christ nor Paul had bound himself to a church ordinance, either with or without an oath. Beyond this, one encounters some things which are clearly Papalist, such as: the name of the ‘religious’ [Geistlichen], which is also given to our [Lutheran] preachers; and that our princes must be modelled on the example of Constantine, as told by Eusebius; and that the pulpit is the workplace of the Holy Spirit – which is thereby not so much made into a workplace, as into a place where reﬂection on God’s word has become a trade. In this regard, the whole conﬂict arises from the saying of Paul, where he writes: Quench not the spirit. We will let it pass that the saying is to be understood as coming from the Holy Spirit, even though there would be much to dispute about here. Let us also say that preachers are impelled by the spirit of God, as if this could never be claimed by godless preachers. Pious preachers, however, are to remember not to confuse their good feelings or ‘angelic inspiration’ with the impulse of the Holy Spirit and divine inspiration; and to distinguish in their sermons between what the Lord says and what they say themselves. We will, I say, allow all of this, and ask only: whether a man can say dispassionately that the Spirit is stiﬂed or repressed by a religious ordinance in which the length of sermons is prescribed? If the Holy Spirit is not stiﬂed by a professor of theology when he restricts his lecture to an hour, then how can it be stiﬂed by a preacher? If the Spirit is not stiﬂed when it allows secular ordinances to tie it to explanations of the Epistles and Gospels prescribed by men, why should it be stiﬂed if a certain time is prescribed to it regarding the duration of a sermon? Incidentally, although we grant that it would not be terribly Christian to compel preachers sharply to the observance of such an ordinance – because it is easy to excuse a preacher who lacks the gift of preaching succinctly – it is unacceptable that someone who might use this excuse should turn it around with a view to

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challenging the right of the secular authorities. So too we do not regard something which is difﬁcult for someone as if it were impossible, especially if the difﬁculty arises from a pretence. I would never believe it if someone said it were impossible for him to conclude his sermon in the time stipulated by the religious ordinance, although I could readily believe that he says this sincerely. And I am assured that any rational man, not to mention a Christian, could learn and teach this art quite easily and without great expense. The love of those who have gone astray has dictated this digression and required giving an example of how subtle the vice of papocaesarism is, and how it surreptitiously stalks those people who most eagerly strive to attain the true and only good, and to prove this to others. Now it will be helpful to characterise papocaesarism somewhat more clearly, and to show wherein it differs from caesaropapism. Without attempting to impose it on others, my opinion is this: that the ofﬁces of a ruler and a teacher, Moses and Christ, are quite different and not to be mixed up, as has been shown fully by others and elsewhere.27 Civil rule [Herrschaft] cannot exist without coercion. Teaching though, as a loving relation and act of goodness, tolerates not the slightest coercion. If these two ofﬁces are mixed, then there arises one of the two oft-mentioned vices. A papocaesarism occurs when the teachers wish to rule, a caesaropapism, though, when rulers want to impose teachings on the people by the sword. But if rulers wish to teach without using public coercion, I would not count this as the vice of caesaropapism, nor illustrate it with the example of Uzziah from the Old Testament.28 For in the Old Testament the priesthood of the Levites was independent, and Uzziah trespassed on an alien ofﬁce against God’s prohibition. In the New Testament, however, all Christians are spiritual priests, and so too, therefore, are kings. I will not now answer the question whether priests and servants of the church are the same thing. Princes are entrusted with worldly weapons to subdue worldly enemies and to constrain those who disturb the external peace. Teachers though must have spiritual weapons, and their spirit is of quite

27

28

This is probably a reference to Pufendorf ’s separation of the ofﬁces of prince and teacher in his De habitu religionis christianae ad vitam civilem (see note 20). Thomasius’s use of this separation in the Recht in Streitigkeiten disputation is discussed above, in Chapter 4, pp. 132–5. The Old Testament records Uzziah as one of the ancient kings of Judah who attempted to perform the functions of the priesthood, being inﬂicted with leprosy for his trouble. 2 Chronicles 26: 1–23. In his attack on Thomasius’s disputation on the adiaphora, Johann Benedict Carpzov used the story of Uzziah as a warning against the prince interfering in the internal affairs of the church. See above, Chapter 4, p. 131.

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another kind than the spirit of Elijah.29 Rulers having the gift of teaching do no wrong if the government permits them to teach. Yet, conversely, preachers would do wrong were they to attempt to govern instead of teach; [for] human domination is so much the less able to be reconciled with teaching. You shall not act thus, said Christ. Moses might well lay down his ofﬁce and make way for Christ; but Christ does not aspire to Moses’s government, nor does he need Moses’s help or Mosaic miracles. In fact, when they hide behind the secular authorities and call on them for help, the preachers show themselves to be carnal and bereft of spiritual weapons. At that time when his spirit was ﬁlled with heroic courage, Luther did not speak wrongly in saying that the Gospel did not need the protection of the electoral princes, but the Gospel rather protected the lands of the electoral princes. Now, no matter how clear this is made, and no matter how much everyone complains about the evils of caesaropapism and papocaesarism, everyone knows regardless that even in the territories of the Protestant princes nothing is more common than these vices, even though both are clearly explained. We need only consider how thoroughly most princes have been persuaded by the clergy that those who differ from us in religious matters should not be tolerated; that heresy is a punishable crime; that heretics must be persecuted by the authorities, and so on. Unfortunately, we have discovered among us more than enough examples – more than the Spanish Inquisition and all the things in the two kinds of clerical law, Justinian and Papal – to demonstrate caesaropapism and papocaesarism, as detailed at length in the preceding disputation. Just as in Catholicism, we laypersons are viewed as dogs and swine if we refuse to worship the books of the [Protestant] clerics and lick their spittle. This is said, and quite openly; but what need is there of many words when the thing itself is glaring. We have shown elsewhere, and will show on other occasions to the disbelievers who refuse to see with open eyes – even from the Foreword of the Formula of Concord – how ﬂagrantly blind faith is established; [further], how clearly all the laity – that is, princes, court and military ofﬁcials, scholars, nobles and commoners, jurists, physicians, philosophers, students, merchants, tradesmen, farmers and women – are in general held to be no better than clods and blockheads. But truth causes disfavour, and this truth caused the greatest hatred and disfavour in the world, for whose lifting Philipp [Melanchthon] was specially wont to plead. [This was] a 29

Elijah was the Old Testament prophet who slaughtered the priests of Jehovah’s rival, Baal, thereby confusing the ofﬁces of ruler and teacher in Thomasius’s view. 1 Kings 18: 36–46.

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hatred that the haters publicly prayed God would carry out with a hate against dissenters, in a word: a right hellish hate. He who loves the truth, though, does not turn to such hate, for he is secure under the shield of truth itself. He loves his haters and asks God, as the source of all love, that He will ﬁll him with love for these haters, and that He will enlighten them so that they will acknowledge their misery; and that He will forgive them their fury and tyranny, which they do not see as fury and tyranny but as godly zeal. In the mean time, he [who loves truth] condemns their diatribes and libels, even though he thinks nothing of them, pays them no heed, yet without being inattentive. If it is necessary, he brieﬂy demonstrates the nullity of that which he is accused of. Good friends have often reminded me that I wished to respond through the public press to a Danzig cleric who had accused me of perjury and inﬁdelity. But why do such obvious lies need an answer? We need a defence and excuse when reports or conjectures concern something we are guilty of. Am I to be guilty of perjury when, God be praised, I have never sworn on a clerical book? Had I sworn on it through ignorance and honesty, then I would have already defended myself against the slander of perjury with a different proof. At the moment, though, I do not need to. But I don’t know what he [the Danzig cleric] can have been thinking of when he branded me an apostate. I live in the sect [Lutheranism] in which I was born and raised, and have never gone over to another. I know full well that many of the clergy wish I would cross over to another sect. In fact, I could tell a story about this, namely, that a Lutheran cleric (who should have considered it well) proposed to a most respected man of the Reformed religion that he should persuade me to convert to the Reformed religion. But I do not want to make the reader laugh by telling how his impudent wishes were so courteously turned down. For this reason, I would answer this slanderer none other than by warmly wishing him sincere acknowledgement of his impudence, and true repentance for the infamous and enormous crimes which he committed through the publication alone of his notorious travelogue. It might look as if another slanderer, who did not give his name, would be worth a more detailed response. Under the title, Repetition of the Pure Teaching of the Foundations of Faith,30 he musters all his strength to make a 30

This is a reference to the Repetitio doctrinae orthodoxae ad amicos quosdam scriptam de fundamento ﬁdei, occasione cuiusdam diputationis Halensis de quaestione: An haeresis sit crimen?, a counterattack on Thomasius’s ﬁrst heresy disputation, Is Heresy a Punishable Crime? Published anonymously, the author turned out to be a junior member of the theology faculty in Thomasius’s own university,

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series of accusations against me on the basis of the recent disputation Is Heresy a Punishable Crime?, namely: that I deviate from the purity of the faith; that it is as if I want to reform the Holy Spirit; that I have inverted the clear teachings of the Scriptures and preach a different Gospel; that I am obscure and know nothing, but would be a scourge in disputes and verbal wars; that I am intoxicated by my own thoughts and respect nobody; that my opinion – where I say that faith is a kind of love – must be opposed with the same zeal as one rejects the papist opinion that man may be justiﬁed through works; and so on. It does appear in fact that this text is the more in need of a response in that the author assumes a special gentleness and piety (if only his accusations were compatible with gentleness and piety) and that some were of the opinion that a different author was hiding behind the supposed real one. After learning that the author is a man already known only too well from other vain works, and that on other occasions he has laboriously but unsuccessfully attempted to make himself famous through such works, for many reasons I have decided not to accede to the advice of my good friends [to ignore him]. For it turns out that there are principally three slanders with which this pusillanimous adversary attacks me: 1. That I posit a different basis for justiﬁcation than Christ’s merit. 2. That I pretend that faith is a kind love. 3. That, in saying that it speaks only of brain faith [Hirnglauben], I have insulted the Apology of the Augsburg Confession, because I have decided for myself to criticise and reject the Lutheran religion and its symbolic books.31 But what need is there here for many words when sound reason and the disputation itself defend me. For, ﬁrstly, when I said that the foundations of my faith were love of God and disdain for myself, I could not have been speaking of justiﬁcatory faith and the foundations of justiﬁcation, as the context clearly shows. [Instead, I] was clearly speaking of faith in the sense of adherence to a creed or system, whose articles are divided into fundamental and non-fundamental. And the evident meaning of my words is: that in my creed, the central point and guiding principle of all

31

Gustav Philipp Mörl. Mörl, later a theologian and preacher in Nürnberg, was intent on defending Lutheran orthodoxy against Thomasius’s argument that it made no sense to speak of the foundations of faith when these changed with the historical appearance of different sects and religions. The Augsburg Confession, intended as a deﬁnitive declaration of the Lutheran articles of faith, had been presented to Emperor Charles V on behalf of the Protestant princes and cities in January 1530. Published in 1531, the Apology was a defence of and commentary on the initial credal statement, largely prepared by Philipp Melanchthon in response to a refutation launched by Catholic theologians. In his earlier heresy disputation – Is Heresy a Punishable Crime? – Thomasius had criticised the Latin version of the Apology, arguing that its view of faith was too intellectual and insufﬁciently grounded in the heart and will.

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controversies – and thus, as everything there indicates, the ground and purpose too – is love of God and disdain for oneself, so that I view the errors which depart from both or from one of these two principles as fundamental errors of the most dangerous kind. Conversely, I do not regard credal errors as dangerous and fundamental, because they do not lead men away from love of God and do not hinder contempt or renunciation of oneself. In a word, such errors do not turn us away from living knowledge of the secrets of the divine will – even if they are mistaken in some secrets of the divine nature which are inscrutable and beyond all understanding, even an enlightened one. Although I see that all the clergy and the princes misled by them tyrannise over those who make credal errors as over criminals and the wickedest heretics. But hopefully no young beginner in philosophy will expect me to waste my time looking up the innumerable places in lexicons, metaphysics books, and the texts of our theologians where the purpose and guiding principle, and typically every principal proposition of a discipline or system is rightly called a foundation. What would be the point, ﬁnally, of wanting to display all of the sophistries and contradictions that the author [of the Repetition] commits in every line and on every page? Those with understanding will see this already, and it would be of little use to those without, least of all though to the author himself. For I have many reasons to know that he will never better himself, after failing to do so following the ﬁrst admonitions that I gave him in some letters sent on another occasion – which he also should have allowed into print, if he had wanted to honestly tell the story of the other conﬂict that occurred between us. Secondly, that faith is a kind of love (although not every kind of love is faith) is something clearly understood by all those who have put pagan philosophy behind them in order to search their own hearts and Holy Scripture. Those who deny this are urged, above all else, to set aside all the wisdom of this world and to turn to a searching knowledge of themselves, the human race, and to the source of all wisdom. If we do not obtain this from them, then all disputing is for nothing. And in fact this controversy is already an old one, having been disputed in the Reformed sect between Gisbert Voëtius and the Cocceians,32 in public writings in the 76th year of

32

Gisbert Voët (1589–1676) was a Dutch Calvinist theologian, most noted for his Disputationes selectae of 1648. Johannes Cocceius (1603–69), also a Calvinist theologian working in Dutch universities, was well known for his biblical focus and his development of a covenantal theology. Their bitter dispute focused on the status of the sabbath, which Cocceius treated as a Jewish custom inessential for a Christian life.

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this century. In particular, at that time a certain Cephas Pistophilus produced a learned work in which he explained the opinions of theologians old and new regarding the theme of love in faith, which I recommend to my adversary. If my opponent held Paul higher than Augustine, I would pray him to carefully consider the words of Paul: Love believes all, hopes all.33 But because he presumably, like many others, makes more out of Augustine than Paul, so let him listen to what Augustine wrote: To believe in God is to love trustingly, to walk in God and become part of his members. Faith is a kind of knowledge through which we do not ﬂutter seeking hither and thither, but dwell in it lovingly. On this account, perhaps the hereticmonger [i.e., the author of the Repetition] will turn against Augustine and Paul the zeal that he wants to use against the papists. I am surprised though that in my dear fatherland this writer never has the opportunity to prove his zeal against the papists who are present, but always against the absent ones.34 But if zeal is needed against the present [papists], I must take care that this zealot does not become a Gaal.35 Judges IX, 29, 38. I very much fear that he lacks the weaponry one needs against a present enemy, since he comes from a school which teaches in the manner of the papists that one should chase away the adversary before ﬁghting with him. If he has a true zeal, why doesn’t he use it against me in my presence? Why doesn’t he come here and talk to his old friends about how he wants to make me a heretic? Why doesn’t he dispute with me in public, and show that Thomasius is such a great heretic that one must oppose him with the same zeal that the zealous clergy wish to use against the papists? Why doesn’t he take up my often repeated public invitation, in which I have asked him courteously enough? Given that he will not accept these honourable conditions, no one will take it amiss if I condemn the trashy pages of my adversary, like hidden enemies who would rather stalk their opponent covertly, or whine about him in his absence, than ﬁght honourably and defend the truth with a frank tongue. To those who could honestly show me that something I teach disturbs the country’s peace or contradicts the Holy Scriptures, I would be bound as to my best friends. Apart from reason and the Holy Scriptures, though, I adhere to no book, 33 34

35

1 Corinthians 13. Thomasius is mocking his orthodox opponent (Mörl) – whom he mistakes for a resident of his Saxon fatherland (Carpzov?) – for persistently attacking a distant Roman papalism while ignoring the Lutheran version closer to home. As told in Judges 9, Gaal boastfully challenged Abimelech, a usurping king of Israel, only to ﬂee in fear when confronted by Abimelech’s army. Thomasius is ridiculing his adversary by suggesting what would happen if he were ever confronted by the local Lutheran ‘papalists’.

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especially not those written by the clergy and imposed on the conscience of the laity. I exercise the right which Luther exercised, and that no man can deny. In so far as they are the creeds of those who have produced them, I am not aggrieved by confessions and symbolic books. So far as they are supposed to be a pattern for the conscience of other people, however, and are used to judge controversies, then in fact I do not hate them to excess, but they alarm me and I have a detestation of them, which I am ready to maintain by oath if needs be. Thirdly, nobody who has read with care the disputation in question [Is Heresy a Punishable Crime?] could say that I have spoken insultingly of the Apology to the Augsburg Confession. I said that the Latin text does not agree with the German, as the words are dubious and not of the same kind, but altered. [Further], that one cannot tell for certain whether the Apology speaks of brain faith [Hirnglauben] or the faith of the heart, which cannot exist without love. And little or nothing is done to counter this doctrine [of brain faith] when the words to will [wollen] and to accept [annehmen] follow soon after it in the Apology.36 I already looked at this at the time, and have not deceptively omitted it. But that gives me no satisfaction. The clergy have been in the habit of mixing up the understanding and the will for several hundred years. Already in Justinian’s time, regarding those who believed that they could be justiﬁed through clerically prescribed formulas (which is a work of the understanding), it was said that they were ruled by the love of allpowerful God (which is a work of the will). l. 19. C. de hæreticis.37 In my opinion it is not enough for true faith that a man wants to accept [wolle annehmen] what God offers him, but that he must be devoted to God, as Augustine said. What does the Repeater think?38 Do the words wants to contemplate [betrachten wollen] belong more to the understanding or to the will? What does he think? That he wants to contemplate the riches of the bride? Wants to accept the treasures offered by the bride? [Or is it rather] to be captivated by them, and to place his trust and consolation in them? What does he think? He sees that all the things printed here in capital letters [italics in this translation] are works of the will. Now he says: Does all this activity signify a trust and a love for the bride, or a trust and love for riches, or a meanness? In this regard the Repeater may learn that if one wants to present 36

37 38

Thomasius commented on the Apology’s use of these words in his Is Heresy a Punishable Crime?, arguing that whereas ‘brain faith’ can be ‘accepted’ (as if it were a matter of intellectual choice), saving faith involves a transformation of the heart and will. Code [of Justinian], On Heretics, l. 19. I.e., the author of the Repetition of the Pure Teaching of the Foundations of Faith, Gustav Philipp Mörl.

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someone with a scholarly argument, this cannot be accomplished by printing several words in capital letters, but that various other things are required for that. But why should I dwell on this any longer? I believe that I have sufﬁciently answered the slanderer if I do no more than display the reasons why I do not want to answer him. Perhaps, though, this person was moved by paternal authority to publish his dissertation, in order for the Leipzig Pope39 to have a pretext to conﬁscate my disputation, even if all too late and with most of the copies already sold.40 I also thank him publicly for this insult, esteeming it as an honour to me, and beseech him that he would honour this text with conﬁscation, the sooner the better. For the conﬁscations initiated or commanded by him and his faction in this way are public testimony that many useful truths must be contained in such conﬁscated texts, particularly ones that disclose the wickedness of the kingdom of darkness. Among the city authorities whose names were attached to the conﬁscation at the same time, I regard most of them easily excused, except for a few (because there could not be fewer than two); because I am well aware that they have already suffered under this clerics’ yoke for a long time, and sincerely wish that one day they will be able to rid themselves of this, and change their condition, but also improve it. I have advanced this because I think it quite appropriate to my project to show why I have picked up the pen. Following his award of a doctoral licentiate in law by our noble Faculty of Law, the respondent, Mr Johann Christoph Rube, advocate of Salfeld in electoral Saxony, presented to me as the current Dean an inaugural disputation on the punishable crime of heresy. From this, I have only put the ﬁrst question – Is Heresy a Punishable Crime? – into good order, for reasons I gave in the letter that was published with the same disputation. I had initially advised him [Rube] to gather the remaining things still to be said touching this matter into some brief principles on the crime of heresy. I soon changed my mind, though, and advised that all the materials should be brought into a properly written Treatise on the Right of Protestant Princes Regarding Heretics. The whole discourse would thus be contained in three chapters, the ﬁrst of which would deal with the right of princes regarding heretics according to the doctrine of clerical right, outlined on 39

40

Probably a reference to Thomasius’s arch-opponent, the Leipzig professor of theology Johann Benedict Carpzov (1639–99). On 3 December 1697 the Saxon Superior Consistory, sitting in Dresden, issued an edict attacking Thomasius’s writings for spreading indifferentism and libertinism among students, and ordering their conﬁscation. This ban was lifted through a counter-edict, issued on 27 March 1698 by Friedrich August, Elector of Saxony and King of Poland, probably as a result of diplomatic pressure from Brandenburg, where Thomasius was now an inﬂuential ﬁgure.

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the basis of the two kinds of clerical law, namely, Imperial and Papal law [Canon Law]; the second [would deal with] the Right of Protestant Princes Regarding Heretics in accordance with God’s word, principally according to the New Testament; and the third with the prince’s right regarding heretics in accordance with the legal practice introduced in the territories of the Protestant princes, as this is found in the authors concerned with legal practice and public decisions. Yet I did not want to require the candidate to elaborate all three chapters, but cautioned him to set down only short principles touching on the ﬁrst part. Otherwise, this would give the heretic-mongers – who cannot suffer the spreading of truth – greater cause and opportunity to hold him up as a heretic. As I am used to the persecution of the clerics, I have reserved the last two chapters for myself, intending to add these in the form of an appendix, as soon as God gives me the strength for that.41 Halle, the 10th of November, 1697.

works cited by thomasius Albaspinaeus, Gabriel, Observationes Ecclesticae, in epitomen redactae et annotatis illustratae a Johanne Georgio Kettembeillio (Helmstedt, 1657). [Anonymous], Histoire du Concile du Nicée (Amsterdam, 1703). Boranowsky, Hierothei, Gerechtfertiger Gewissens-Zwang oder Erweiß daß man die Ketzer zum wahren Glauben zwingen könne und solle (Neyß, 1673). Boxhorn, Marcus Zuerius, Historia universalis sacra et profana a Christo nato ad annum usque MDCL (Frankfurt, 1652). Calixt, Friedrich Ulrich, Disputatio theologica de poenis haereticorum (Helmstedt, 1673). Calixt, Friedrich Ulrich, Tractatus theologicus de haeresi, schismate et haereticorum poenis (Helmstedt, 1690). Dellon, Charles, Relation de l’inquisition de Goa (Leiden, 1687). Eusebius (of Caesarea), De vita Constantini. For a modern translation, see Eusebius, The Life of Constantine, trans. and comm. Averil Cameron and Stuart G. Hall (Oxford: Clarendon Press, 1999). Eusebius (of Caesarea), Historia ecclesiastica. For a modern translation, see Ecclesiastical History, trans. Roy J. Deferrari, 2 vols. (New York: Fathers of the Church, 1953–55). Gothofredus, Dionysius (Denis Godefroy), Corpus iuris civilis quo ius universum Iustinianeum comprehenditur: Pandectis, ad Florentinum archetypum expreßit / Codice, cum optimis quibus editionibus collato (1587–). (= Code). For a modern English translation, based in part on Gothofredus’s version, see Corpus juris 41

Apparently the divine infusion was not forthcoming, as the other two chapters were never written.

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civilis / The Civil Law, ed. S. P. Scott, 17 vols. (New York: AMS Press 1973). Thomasius’s references are to vol. xii, bk. i: tit. 1, pp. 9–15, ‘On the Most Exalted Trinity and the Catholic Faith’; tit. 2, pp. 15–28, ‘On the Most Sacred Churches’; tit. 3, pp. 29–56, ‘On Bishops and other Members of the Clergy’; tit. 5, pp. 63–71, ‘On Heretics’; bk. ii: tit. 6, pp. 185–7, ‘On Litigation’; and, vol. viii, bk. v: tit. 1, pp. 137–9, ‘On Betrothals’; tit. 17, pp. 200–07, ‘On Divorce’ (‘Concerning Repudiation and the Abolition of the Action de Moribus’); bk. vi: tit. 21, pp. 321–5, ‘On the Will of a Soldier’. Grotius, Hugo, De imperio summarum potestatum circa sacra (Amsterdam, 1677). For a modern edition, with English translation, see De imperio summarum potestatum circa sacra / Hugo Grotius, ed. and trans. Harm-Jan van Dam (Leiden: Brill, 2001). Lancellottus, Giovanni Paolo, Institutiones juris canonici, quibus jus pontiﬁcium singulari methodo libris quatuor comprehenditur (Lyon, 1571). (= CJC ). Pomarius, Samuel, Beweisener ungerechtester Gewissens-Zwang: entgegen gesetzet Hierothei Boranowsky Gerechtfertigtem Gewissens-Zwange (Wittenberg, 1674). Rynthelen, Cornelius à, Iurista romano-catholicus: id est, iuridica romanae catholicae ﬁdei confessio (Hemmerden, 1618). Scholasticus, Socrates, Ecclesiastica historia (Basel, 1593). For a modern edition, see Ecclesiastica historia / Socrates Scholasticus, ed. Robert Hussey, 2 vols. (Hildesheim: Georg Olms Verlag, 1992). Strauch, Aegidius, Priscae ecclesiae in censendis haereticis aequitas (Wittenberg, 1663). Ziegler, Caspar, Notis et animadversionibus academicis ad Joh. Pauli Lancelotti jcti Perusini institutiones enucleatum, et quale sit, remoto velamento publicae luci expositum; Praemittitur dissertatio de juris canonici origine et incrementis (Wittenberg, 1669).

Index

adiaphora (matters of moral indifference), 31, 33, 121--9, 164 Ahnert, Thomas, 12, 19--20, 124 (fn. 31) Alberti, Valentin, 9, 12, 19, 34, 45, 58, 60, 85, 93--5, 132 Compendium Juris Naturae, orthodoxae Theologiae conformatum, 88--9, 94 Alsted, Johann, 39 Althusius, Johannes, 39 Amalric of Bena, 64 Amsdorf, Nikolaus von, 122 Arnisaeus, Henning, 43, 87 Doctrina politica in genuinam methodum, 91, 105 Arnold, Gottfried, 49, 61, 77 Unparteyische Kirchen- und Ketzer-Historie, 152 Augsburg, Treaty of, 18, 24, 26, 31, 47, 89, 114, 117--20, 123, 126, 136, 149, 153 and the Peace of Passau, 148 rival interpretations of, 118 Augsburg Confession, 27, 29, 117 Augsburg Interim, 122, 128 and Leipzig Interim, 122 August of Saxony, Elector, 21, 41, 46, 146 Augustine of Hippo, 145, 148 Bacon, Francis, 61 Bayle, Pierre, 73, 144, 167 Various Thoughts on the Occasion of a Comet, 73 Beausobre, Isaac, de 61 Becmann, Johann Christoph, 8, 34, 90--1 Bekker, Balthasar, 69 De betoverde Wereld, 69 Brandenburg, 7, 9, 11, 22, 99, 115 estates of, 26--30, 161 religion and politics in, 25--33, 111, 120, 123, 161 Breithaupt, Justus Joachim, 157

Brenneisen, Enno Rudolph, 122 Brunnemann, Johann, 8, 34 Calixt, Friedrich, 158 Calixt, Georg, 44 Calov, Abraham, 75 Gnostologia, 75 Calvinism, 7, 28, 38; see also universities, , Calvinist Cambridge Platonists, 64 Carpzov, Benedict, 41--2, 122, 130, 146--7, 153 Practica nova imperialis saxonica rerum criminalium, 42, 146--9 Jurisprudentia ecclesiastica seu consistorialis, 119--21, 123 Carpzov, Johann Benedict, 9, 34, 58, 60, 121, 132 De jure decidendi controversias theologicas, 130--1 Carpzov, Samuel Benedict, 9, 130, 132 Caselius, Johannes, 42 Catholicism, 26, 117, 122, 146, 165; see also universities, Catholic Charles V (Holy Roman emperor), 122, 146 church, 116--17 juridical (secular) conception of, 118, 151 ‘invisible’, 123, 144, 153 and state, 2, 113, 116, 122, 124, 129, 131, 133 church law (Staatskirchenrecht), 1, 41, 113--14, 116--21 and the consistory, 88, 89, 120, 136 Dreiständelehre (doctrine of the three estates), 119, 131, 135--6 territorial (secular), 118--19 theocratic, 119--21, 125, 127, 130, 133, 149 Zweipersonenlehre (doctrine of the two persons), 90, 117, 119, 130, 131, 135--7, 148 see also Thomasius and church law Chytraeus, David, 49 confessional state, the, 2--3, 14, 22--4, 31, 39, 87, 90, 99, 120, 121, 142, 143, 148, 167; see also Thomasius and the confessional state

207

208

Index

confessionalisation, 3 Calvinist, 7, 25--30, 32 Catholic, 33 Lutheran, 13, 26, 32 (see also Formula of Concord); see also universities and confessionalisation Conring, Hermann, 18, 24, 34, 43, 87 De origine juris Germanici, 47 Despagne, Jean, 77 disputation(s), 61 academic, 2--3 authorship of, 114 and confessional conflict, 36 in public law, 113--14 Dreitzel, Horst, 143--4 enlightenment (Aufklärung) the, 84, 125, 167 Eriugena, Johann Scotus, 64 estates, 7, 117; see also Brandenburg, , estates of

Joachim II, 26 Johann Georg, 27 Johann Sigismund, 25, 26--8, 32, 33, 35 Princess Maria Amalia, 11 Holy Roman German Empire, 2, 7, 24, 26, 51, 53, 111, 114 religious constitution of, 117--19 (see also Augsburg, Treaty of, and Westphalia, Treaty of ) universities in, 34 humanism, 36, 42, 91 Husserl, Edmund, 58 Jesuit Order (Society of Jesus), 32 universities of, 37, 55 Jonas, Justus, 49 jurisprudence, 57 secular, 117 theocratic, 8, 41--2, 117; see also Thomasius on jurisprudence Kant, Immanuel, 16, 58, 89

faith, 65, 151 foundations of, 30, 31, 148, 153 opposed to knowledge 81, 137, 155 Fecht, Joachim, 34, 157 Flacius Illyricus, Matthias, 122 Fludd, Robert, 69 Formula of Concord, 27, 29--31, 32, 33, 60, 67, 120, 123, 137, 139, 149, 153 and the universities, 40--1 Francke, August Hermann, 10 Gallus, Nikolaus, 122 Gentile, Valentino, 149 George III, prince of Anhalt, 122 Grotius, Hugo, 88 Grunert, Frank, 54 Gutke, Georg, 75 Hammerstein, Notker, 19 Heckel, Martin, 117, 151 Heidegger, Martin, 58 Helmont, Franciscus van, 69 heresy (and heretic), 6, 23, 29, 42, 121 crime of, 145--50, 153, 155, 156 and metaphysics, 41, 46, 58, 64, 159 political conception of, 160--1; see also Thomasius on heresy Hobbes, Thomas, 8, 45, 87 Hofmann, Daniel, 44--5, 49 Hohenzollern dynasty, 7, 9, 27, 38, 123 Friedrich III/I, 35 Friedrich Wilhelm (the ‘Great Elector’), 8, 10, 28--30, 35

de La Mothe-Le-Vayer, François, 79 law, 87 and politics, 114 public (Staatsrecht, jus publicum), 2, 11, 18, 23, 24, 41, 43, 87, 114--15 Romano-canon, 24, 34, 41, 43, 47, 87, 88, 116, 145, 147, 158 Saxon, 41, 147 and theology, 23, 87, 117, 145 Leibniz, Gottfried Wilhelm, 46, 58, 89 Lesieur, Stephen, 26 Lipsius, Justus, 105 Locke, John, 129, 144 and Thomasius, 129--30, 139, 162--7 on toleration, 162--6 Luther, Martin, 48, 116--17 Lutheranism, 7, 11, 26, 28, 122; see also universities, Lutheran Martini, Cornelius, 42 Martini, Jacob, 49 Meier, Georg, 75 Meisner, Balthasar, 40, 43 Collegium Adiaphoristicum, 123 Melanchthon, Philipp, 40, 48 metaphysics (and natural theology), 16, 33, 66, 82, 88 history of, in Lutheran universities, 40, 44 Thomist, 38; see also Thomasius on Moritz, Duke of Saxony, 122 Moritz of Hesse-Kassel, Count, 26 Moritz Wilhelm of Saxon-Zeitz, 11

Index Mörl, Gustav Philipp, 34, 157 Müller, Philipp, 11 natural law, 87, 95 Christian, 9, 12, 15, 20, 43, 45, 85, 87--90 and divine law, 12, 67, 86, 95--6, 101, 130 as political psychology, 105--8, 133, 134 and positive law, 83, 87, 98, 107, 108 secular, 6, 12, 90--2 Osse, Melchior von, 21, 34, 47 D. Melchiors von Osse Testament gegen Hertzog Augusto Churfürsten zu Sachsen, 21--2, 41, 87 Pareus, David, 121 persona, 82, 99 of the jurist, 92, 96, 105 of the philosopher, 17, 73--83, 88, 89 of the prince, 22, 24, 90, 106, 117, 130, 133--5, 148 of the sage, 103--5, 106, 111 of the teacher, 106, 135; see also Pufendorf on moral personae Pfeffinger, Johann, 122 Pfeiffer, Augustin, 9, 90, 132 philosophy, 4 Aristotelian, 36, 38, 48, 55 Cartesian, 80 different conceptions of, 51 eclectic, 60 encyclopaedic, 39, 55 and history 80 historiography of, 15, 49, 51--3, 61--73, 74 and politics, 8, 66, 73 Platonic, 15, 64, 66, 69, 74 Ramist, 42, 55 scholastic (Schulphilosophie), 9, 51, 55, 88 and theology (see metaphysics); see also theology and philosophy Pietists, 9, 10, 17 politics, and morality, 21, 43, 107 science of, 43, 49 and religion, 10--12, 24, 25--30, 73, 87, 92, 111--12, 125 Pufendorf, Samuel von, 5, 8, 9, 34, 45, 87, 89 on moral personae, 132 De habitu religionis christianae ad vitam civilem, 115, 133, 135, 166 De jure naturae et gentium, 5, 91--2, 95, 105 rationalism, 12, 46, 60, 79, 88, 154; see also voluntarism Reinking, Dietrich, 119 religion, 154, 158

209

and philosophy, 5, 12, 13, 33 popular, 33 reform of, 10; see also faith rights, 84, 145 in Locke, 130, 163 in Thomasius, 17--18, 30, 48, 96--8, 107--9, 127, 139--, 163 Roth, Albrecht Christian, 10, 13, 60 Rube, Johann Christoph, 150, 157 Saxony, 2, 7, 22, 99, 115 legal system, 41, 47--8, 146 Scheibler, Christoph, 40, 43 Schilling, Wenzel, 49 Schmalkaldic War, 122 Schneiders, Werner, 15--16 Schobinger, Jean-Pierre, 52 Schubart-Fikentscher, Gertrud, 114 secularisation, 8, 19 of law, 15, 20, 96, 108, 118, 125, 135, 138, 167 political, 116, 124, 144, 158 Servetus, Miguel (Michael), 149 sovereignty, 2, 8, 43, 92, 97, 98, 115, 124, 125 and princely rights, 9, 10, 18, 32, 89, 98, 117, 119, 121, 123, 127, 140 Spinoza, Benedict, 65, 72, 167 Stephani, Joachim, 97 Stephani, Matthias, 119 Strimesius, Samuel, 87 Stryk, Samuel, 8, 10 Sturm, Jacob, 61 theology, Lutheran, 40, 43, 76 and philosophy, 12--14, 43, 44, 56, 95 Thomasius, Christian, 53 as academic 2 Affektenlehre (doctrine of the passions), 101--5 anti-clericalism, 1, 10, 65, 67, 77, 78, 124, 144, 158, 159--61 on atheism, 71--3, 166 biography, 3, 5--11, 132 and Cartesianism, 69 and church law (Staatskirchenrecht), 46, 115, 121--38 and the confessional state, 20, 68, 77, 85, 99, 107, 113, 129, 132, 142, 145, 150 on decorum, 104--5, 109--11 and empiricism, 19, 71, 76, 79, 80 and fideism, 19, 46, 77, 80, 124, 151, 154--5 on Gelehrsamkeit (erudition), 78--9 on heresy, 31, 65, 68, 71, 151--7, 158--61 and the historiography of philosophy, 12, 20, 46, 56--61, 61--73, 85, 150, 151--2, 159 interpretations of his work, 14--20, 54, 84--5, 99--100, 138, 144

210

Index

on jurisprudence, 62, 71, 81, 82, 133 and legal education, 13, 18, 60, 62, 77--82, 85, 102, 109 on metaphysics (natural theology), 46, 49, 56, 57, 59, 65, 66--71, 75, 160 and moral philosophy, 101, 103, 106, 134, 140 on natural law, 16, 67, 71, 84--6, 92--9, 101--8 persona, 4, 14, 132 and philosophy, 4, 13--14, 48--50, 55, 57, 60, 73--83 and polemic, 12, 86, 99, 131 and public law, 18, 45, 109, 143 and Pufendorf, 6, 92, 93, 98, 126, 132 and scholastic philosophy (Schulphilosophie), 48, 54--61, 63, 74, 76, 77, 81, 93, 103, 160 on sovereignty, 126--7, 136 on Spinoza, 71--3 on toleration, 30, 48, 72, 138--40, 141, 142--4, 156, 161, 163--7 on witchcraft, 68 Auserlesene deutsche Schriften, 11 Ausübung der Sittenlehre, 102, 104 Cautelen zur Erlernung der Rechtsgelehrtheit, 62--72, 76--82, 101, 110 De crimine magiae, 68 D. Melchiors von Osse Testament gegen Hertzog Augusto Churfürsten zu Sachsen, 21--5, 46--9 Dreyfache Rettung des Rechts Evangelischer Fürsten in Kirchen-Sachen, 1--4 Diskurs von der Nachahmung der Franzosen, 110 Erklährung und Vertheydigung Seiner Lehre, 11 (fn. 29) Fundamenta juris naturae et gentium/ Grundlehren des Natur- und Völcker-Rechts, 92, 100--12 De felicitate subditorum Brandenburgicorum, 10, 30 An haeresis sit crimen?/ Ob Ketzerei ein strafbares Verbrechen sei?, 150--7 Historia contentionis inter imperium et sacerdotium, 62 Institutiones jurisprudentiae divinae/ Drey Bücher der Göttlichen Rechtsgelahrtheit, 6, 12, 63, 67, 93--9, 120, 137 Introductio ad philosophiam aulicam/ Einleitung zur Hof-Philosophie, 12, 55--61, 62, 65, 94 De jure principis circa adiaphora/ Das Recht evangelischer Fürsten in Mittel-Dingen,

oder Kirchen-Ceremonien, 121--9 De jure principis circa haereticos/ Vom Recht Evangelischer Fürsten gegen die Ketzer, 142, 157--62 Das Recht evangelischer Fürsten in theologischen Streitigkeiten, 131--8, 151, 155 Rechtmäßige Erörterung der Ehe- und Gewissens-Frage, 11 (fn. 30) Summarischer Entwurf der Grundlehren, die einem Studioso Juris zu wissen und auf Universitäten zu lernen nötig sind, 63 Versuch vom Wesen des Geistes, 69--70, 150 Vollständige Erläuterung der Kirchenrechts-Gelahrtheit, 105 ‘Von der Historie des Rechts der Natur bis auf Grotium’, 62 (fn. 32) Thomasius, Jacob, 5, 34, 61 and the historiography of philosophy, 46, 58 Schediasma historicum, 63--5, 150 toleration, 23, 116, 130, 137, 143--4, 162--7; see also Thomasius on toleration Tschirnhaus, Ehrenfried Walther von, 78 universities, 2--3 Catholic, 37--8 Calvinist, 38--40 and confessionalisation, 24, 35--42, 46, 147 curricula and pedagogy, 36--44 Frankfurt on Oder, 6, 8, 35, 39 Giessen, 40 Halle, 1, 9, 17, 24, 164 Helmstedt, 42--5, 51, 55 Herborn Academy, 39 Leipzig, 3, 8, 36, 40, 45, 85, 121 Lutheran, 40--5 reform of, 34, 77 Tübingen, 40 Wittenberg, 36, 40 Veltheim, Valentin, 87 voluntarism, 4, 12, 79, 95, 102; see also rationalism Westphalia, Treaty of (Treaty of Osnabrück), 11, 18, 24, 114, 128, 129, 143, 150 witchcraft, 42 crime of, 145, 146, 149 and metaphysics, 41, 68 Wolff, Christian, 16, 58 Zabarella, Jacopo, 42, 55 Zentgrav, Johann Joachim, 87

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10 wo l f l e pen i e s Between Literature and Science: The Rise of Sociology pb 978 0 521 33810 3 11 ter e nc e b al l , ja m es far r and r u s se l l l . h a ns o n (eds.) Political Innovation and Conceptual Change pb 978 0 521 35978 8 12 g e r d g i g e r e n z e r et al. The Empire of Chance How probability changed science and everyday life pb 978 0 521 39838 1 13 pe te r nov i c k That Noble Dream The ‘objectivity question’ and the American historical profession hb 978 0 521 34328 2 pb: 978 0 521 35745 6 14 d av i d l i e b e r m a n The Province of Legislation Determined Legal theory in eighteenth-century Britain pb 978 0 521 52854 2 15 dan i el pi ck Faces of Degeneration A European disorder, c.1848–c.1918 pb 978 0 521 45753 8 16 ke i th ba k er Inventing the French Revolution Essays on French political culture in the eighteenth century pb 978 0 521 38578 7 17 i an h ack i ng The Taming of Chance hb 978 0 521 38014 0 pb 978 0 521 38884 9 18 g i s e l a b o c k , qu e nti n s k i nn er and m au r i z i o v i ro l i (eds.) Machiavelli and Republicanism pb 978 0 521 43589 5 19 do roth y ro ss The Origins of American Social Science pb 978 0 521 42836 1 20 k l au s ch r i s t i a n ko h n k e The Rise of Neo-Kantianism German Academic Philosophy between Idealism and Positivism hb 978 0 521 37336 4

21 ian m ac lean Interpretation and Meaning in the Renaissance The Case of Law hb 978 0 521 41546 0 pb 978 0 521 02027 5 22 m au r i z i o v i ro l i From Politics to Reason of State The Acquisition and Transformation of the Language of Politics 1250–1600 hb 978 0 521 41493 7 pb 978 0 521 67343 3 23 m arti n van g el de r en The Political Thought of the Dutch Revolt 1555–1590 hb 978 0 521 39204 4 pb 978 0 521 89163 9 24 n i c h o l a s ph i l l i p so n and qu en ti n s ki n ne r (eds.) Political Discourse in Early Modern Britain hb 978 0 521 39242 6 25 j a m e s tu l ly An Approach to Political Philosophy: Locke in Context hb 978 0 521 43060 9 pb 978 0 521 43638 0 26 r i c h ar d tu c k Philosophy and Government 1572–1651 pb 978 0 521 43885 8 27 r i c h ar d r .y e o Deﬁning Science William Whewell, Natural Knowledge and Public Debate in Early Victorian Britain hb 978 0 521 43182 8 pb 978 0 521 54116 9 28 m arti n wa r nk e The Court Artist The Ancestry of the Modern Artist hb 978 0 521 36375 4 29 pet e r n . m i l l e r Deﬁning the Common Good Empire, Religion and Philosophy in Eighteenth-Century Britain hb 978 0 521 44259 6 pb 978 0 521 61712 3 30 c h ri stoph e r j . b er ry The Idea of Luxury A Conceptual and Historical Investigation pb 978 0 521 46691 2 31 e. j. h u n de rt The Enlightenment’s ‘Fable’ Bernard Mandeville and the Discovery of Society hb 978 0 521 46082 8 pb 978 0 521 61942 4

32 ju l i a s ta pl eto n Englishness and the Study of Politics The Social and Political Thought of Ernest Barker hb 978 0 521 46125 2 pb 978 0 521 02444 0 33 k e i t h tr i b e Strategies of Economic Order German Economic Discourse, 1750–1950 hb 978 0 521 46291 4 pb 978 0 521 61943 1 34 sac h i ko k us u k awa The Transformation of Natural Philosophy The Case of Philip Melancthon hb 978 0 521 47347 7 pb 978 0 521 03046 5 35 d av i d a r m i tag e , a r m a n d h i m y and qu en tin s ki nne r (eds.) Milton and Republicanism hb 978 521 55178 6 pb 978 0 521 64648 2 36 m ar k ku pe lto ne n Classical Humanism and Republicanism in English Political Thought 1570–1640 hb 978 0 521 49695 7 pb 978 0 521 61716 1 37 ph i l i p i ro n s i d e The Social and Political Thought of Bertrand Russell The Development of an Aristocratic Liberalism hb 978 0 521 47383 5 pb 978 0 521 02476 1 38 n a n c y c a rt wr i g h t , j o r d i c at , l o l a f l e c k and t h om a s e. u e b el Otto Neurath: Philosophy Between Science and Politics hb 978 0 521 45174 1 39 d o n a l d w i n ch Riches and Poverty An Intellectual History of Political Economy in Britain, 1750–1834 pb 978 0 521 55920 1 40 je nn i f er pl at t A History of Sociological Research Methods in America hb 978 0 521 44173 5 pb 978 0 521 64649 9 41 kn ud haakon sse n (ed.) Enlightenment and Religion Rational Dissent in Eighteenth-Century Britain hb 978 0 521 56060 3 pb 978 0 521 02987 2 42 g . e . r . l l oy d Adversaries and Authorities Investigations into Ancient Greek and Chinese Science hb 978 0 521 55331 5 pb 978 0 521 55695 8

43 ro l f l i n d n e r The Reportage of Urban Culture Robert Park and the Chicago School hb 978 0 521 44052 3 pb 978 0 521 02653 6 44 an na b el b re t t Liberty, Right and Nature Individual Rights in Later Scholastic Thought hb 978 0 521 56239 3 pb 978 0 521 54340 8 45 s tewart j. brown (ed.) William Robertson and the Expansion of Empire hb 978 0 521 57083 1 46 h el e na ro s en bl at t Rousseau and Geneva From the First Discourse to the Social Contract, 1749–1762 hb 978 0 521 57004 6 pb 978 0 521 03395 4 47 dav i d r u nc i m an Pluralism and the Personality of the State hb 978 0 521 55191 5 pb 978 0 521 02263 7 48 a n n a b e l pat t e r s o n Early Modern Liberalism hb 978 0 521 59260 4 pb 978 0 521 02631 4 49 d av i d we i n s t e i n Equal Freedom and Utility Herbert Spencer’s Liberal Utilitarianism hb 978 0 521 62264 6 pb 978 0 521 02686 4 50 y un le e to o and n i a l l l i v i n g s ton e (eds) Pedagogy and Power Rhetorics of Classical Learning hb 978 0 521 59435 6 51 r ev i e l n e t z The Shaping of Deduction in Greek Mathematics A Study in Cognitive History hb 978 0 521 62279 0 pb 978 0 521 54120 6 52 m a ry m o rg a n and m a rg a r e t m o r r i s o n (eds) Models as Mediators hb 978 0 521 65097 7 pb 978 0 521 65571 2 53 j oe l m i c h el l Measurement in Psychology A Critical History of a Methodological Concept hb 978 0 521 62120 5 pb 978 0 521 02151 7

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76 h a n n a h d aw s o n Locke, Language and Early-Modern Philosophy hb 978 0 521 85271 5 77 cona l c on dre n , s t e ph e n g au k ro g e r and i a n h u n t e r (eds.) The Philosopher in Early Modern Europe The Nature of a Contested Identity hb 978 0 521 86646 0 78 ang u s g ow l an d The Worlds of Renaissance Melancholy Robert Burton in Context hb 978 0 521 86768 9 79 pe te r s tac ey Roman Monarchy and the Renaissance Prince hb 978 0 521 86989 8 80 r ho d r i l ew i s Language, Mind and Nature Artiﬁcial Languages in England from Bacon to Locke hb 978 0 521 874750 81 dav i d l e op o l d The Young Karl Marx German Philosophy, Modern Politics, and Human Flourishing hb 978 0 521 87477 9 82 jo n pa rk i n Taming the Leviathan The Reception of the Political and Religious Ideas of Thomas Hobbes in England 1640–1700 hb 978 0 521 87735 0 83 d. w ei n st ei n Utilitarianism and the New Liberalism hb 978 0 521 87528 8 84 lu cy del a p The Feminist Avant-Garde Transatlantic Encounters of the Early Twentieth Century hb 978 0 521 87651 3 85 b o r i s wi s e m a n Lévi-Strauss, Anthropology and Aesthetics hb 978 0 521 87529 5 86 dunca n be ll (ed.) Victorian Visions of Global Order

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