The concept of "secularization" natural law of Chr. Tomasia
Significant efforts to separate the theory of natural law from medieval scholasticism were made by the German philosopher of law Christian Tomasius (1655-1728) - one of the outstanding representatives of the early Enlightenment in Germany.
Born in Leipzig, in the family of the famous theologian professor Jakob Tomasia - a subtle and intelligent critic of scholasticism, the teacher of Leibniz. He studied philosophy and jurisprudence under the guidance of his father. At first he worked as a lawyer, but he had no success in this field. Since 1687 he lectured at the University of Leipzig. Chr. Thomas the first of the German philosophers began to deliver lectures in German, and not in Latin, as was customary, thereby laying the foundations of German philosophical terminology. The main motive that prompted Tomasia to this deviation from the generally accepted order was the desire to make science available to the widest circles of society. For that time, this step was a challenge, a profanation of science, a shock of the foundations. Leipzig censors were not allowed to print his works. Sharp attacks of Tomasia on the old authorities, uncompromising struggle with medieval survivals were initiated against him by the conservative public of Leipzig. Under the fear of criminal prosecution, he was forced to move to Halle in 1690, where he spent the rest of his life. Promoted the founding of the University of Halle; in 1694 he became a professor, and then rector of this university.
Chr. Tomazi is the author of numerous works that had a great influence on contemporaries. W. Windelband calls him prophet and "fearless preacher of philosophy"; for N. G. Chernyshevsky, Tomasius is the "truly great figure of the German Enlightenment".
Among the most significant works of the thinker is the treatise "Fundamentals of the nature of the natural and international" (1705).
Tomasius was a rationalist, he believed in the power of the human mind and believed that the strength of the proof is only that which is consistent with the mind. His main task was to purify philosophy from religion and exercise, the so-called "secularization" natural law.
Tomazi in his political and legal doctrine breaks with medieval scholasticism, based on the thesis about the sinful nature of man. Since man is a rational being, the fundamental principles of natural law are derived from the mind of man.
By nature, people always strive for happiness, for personal good and life in peaceful communication with others. To achieve this goal, people create norms of human community (natural law) and a state designed to enforce these universal rules.
The best form of the state, which can ensure the conditions for people to achieve happiness, Tomasiy considered an absolute monarchy. The source of power of the monarch, in his opinion, is the consent of the subjects. The ruler and subjects are bound by mutual obligations: the subjects are obliged to fulfill the imperious orders of the ruler, and the monarch - to guarantee the rights and welfare of citizens. In the case of the encroachment of the monarch on natural rights, manifestations of arbitrariness and injustice towards the subjects, the latter are not obliged to obey him. However, Tomazy does not call for resistance either. A protest can only be passive. It would seem that such an approach contradicts the natural-legal doctrine, but in order to understand the position of Tomasia, one should keep in mind the political chaos that occurred in Germany after the Thirty Years' War - the boundless arbitrariness of petty princes and monarchs. The way out of this situation was seen by Tomazy in the centralized power of a strong prince, who in his opinion is able to provide a sufficiently wide range of rights and freedoms of subjects.
State power, having as its main task the maintenance of order, in the opinion of the thinker, should provide freedom for the subjects. Freedom as an inseparable quality of a person stands in the philosophy of law, Tomasia primarily as freedom of thought and conscience. The latter was especially relevant for Germany at that time, since in the XVII century. as a political principle, according to which "the prince's faith is the faith of his subjects". Moreover, until the middle of the XVIII century. The trials of witches continued. Tomasius believed that people of different faiths can successfully live in peace among themselves; If, however, there are religious disputes, the best means for resolving them is mutual tolerance of the citizens and religious tolerance of the sovereign himself, whose authority not only should not, but can not extend to the inner world of the person (subjects). Strictly speaking, princes in general should not interfere in theological disputes. Only if the dissident violates the law in force as a general external order, he can be expelled or punished (if it is a criminal offense), since all are equal in this respect before the law and the will of the prince.
Freedom of religion is not separable from Tomasia from freedom of thought, first of all, freedom of scientific research and protection of one's scientific convictions are meant.
In order to establish a fair order in the political community of free and reasonable people, Tomazi emphasizes the relationship between law and morality, politics and morality as mechanisms for regulating people's behavior.
The main historical merit of Tomasia is the recognition of his differentiation of law and morality. The source of morality is the inner consciousness of a person, not dependent on the dictates of power; in the moral field the only instrument of influence is the council. Legal norms regulate external duties and only them; in this sphere the state can use orders. Thus, in the interpretation of Tomasia, the law took the form of an independent legal category, the specific characteristics of which are intersubjectivity (ie, the focus of the right to more than one subject) and external coercion.
He saw the cause of the conflicts emerging in the society in the discrepancy between internal motives and external behavior.
Internal demands to refrain from evil actions formulate norms of morality on the basis of ideas about good and evil. The action of moral norms is based on the belief in their justice. They affect the inner world of man, setting a system of meanings, values and ideals that are not formally fixed anywhere.
The rules of law regulate the external behavior of people, their interaction with other people. The operation of legal norms is based on state coercion; legal norms are generally binding and represent the power orders of public authorities, fixed in official acts.
As for the essence of law, here Chr. Thomas is very categorical. In his opinion, a positive right is created by the will of the prince, which in turn is limited only by the divine will. Only when there is no law, a treaty or custom can act as a source of law - in this case it is the will of the parties. A change in the current positive law is permissible only in the order established by the law.
In contrast to N. Machiavelli, who shared, bred in different directions, politics and morality, Tomazi introduces moral criteria into politics, that is, the requirement to the powers that be, to refrain from doing bad things to the subjects.
This idea, with particular force, he holds in his doctrine of the rules of behavior: moral - honest ( honestum ); social - decent ( decomm ) and legitimate - just (justum ). The first one, which is leading, reads as follows: "Do as others should;"; the second rule states: "Do unto others what you want them to do to you;"; finally, the third is formulated by Tomasius: "What you do not want others to do to you, then do not do it to you." The rule of honest behavior refers to morality, worthy of - to politics, and legitimate - to the law itself.
The Communist ideal is not alien to Thomas. He believes in the possibility of achieving universal happiness through: the constant moral improvement of people, their strict observance of the norms of law and the abolition of private property. Tomazi believes that property and the state are not in a necessary connection, since the property, in his opinion, arose before the state and there is no reason to say that the state can not do without it. Similarly, for Tomasia, private property is not the net foundation of freedom. Freedom and private property, in his opinion, are not only not tied together, but, to a certain extent, they confront each other. In this issue, Tomazi significantly disagreed with such supporters of the idea of natural law as Grotius or Locke. The ideas of utopian socialism of Tomasia were painted in religious colors. Christian love for the neighbor, he believed, should lead to a community of property, which is the guarantee of universal prosperity. At the same time, Tomasius believed that the construction of communism is a matter of a distant future, because such a change in institutions can only be approached after a change in the moral image of a person. First, it is necessary that the mutual relations of people are imbued with the beginning of love, and only then it will be possible to replace private property by common property.
The desire of Tomasia to bring science closer to life and free it from church-scholastic shackles, belief in the power of the human mind, the demand for religious tolerance, the idea of differentiation of law and morality, anticipated a number of ideas by Kant and Fichte, and despite the fact that his contribution to development teachings about the law and the state is not so significant, it is unquestionable and deserves recognition.
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