Girolamo ZanchiZANCHI MAINTAINS THAT ALL HUMAN LAWS originate, at least with regard to their essence, from the natural law. Zanchi distinguishes between the command and the punishment or sanction of the law. The command in a human law is a conclusion derived from a principle of natural law. As an example, Zanchi observes that laws against murder, adultery, perjury, etc. are conclusions based upon the general principle of the natural law that one should not do to another what he does not want done to himself. Thus the essence of human law, with respect to its content or command component, is the natural law.
On the other hand, Zanchi asserts that the punishment or sanction associated with a law's breach is not derived the natural-law, other than perhaps its general principle that someone who sins ought to be punished and the commonly-held notion that murder should be punished by execution. With respect to specific punishments associated with a law's breach, the justice and fairness ought to be applied to match the severity of the crime. "Thus, it is appropriate, according to natural law," Zanchi concludes, "that sin be punished, but should one sin--murder perhaps--be punished by the sword, and another--petty theft perhaps--be punished by a decision of the law-makers" is a matter for human law.
Zanchi maintains as one of his theses that whenever human law conflicts with, or contradicts, the natural law, the human law is overturned and is unworthy of the name of law.
The reason for this is clear. If natural law is indeed the measure for human laws, then it is also the rule for human actions. Therefore, just as every action that does not agree with natural law is sinful, so, too, is every human law . . . .For this reason, Augustine rightly, in his On Free Will, claimed that a law that is not just should not be called so, and it is not just if it does not agree with natural law.
(340 [Note: The ellipses show where I have left off Zanchi's diatribe against the papacy and celibacy, a diatribe which displays an ignorance, or at least a disdain of, the evangelical counsels preached by Christ himself, and so is unworthy of publication in this blog dedicated to the Lord.])
Zanchi adds that because laws are essentially geared to the glory of God and the common good of men, those laws that contradict those aims are essentially unworthy to be called laws. (340) Zanchi endorses the discussion of Gratian's Decretum (4.2) about the qualities of good laws.
Erit autem lex honesta, iusta, possibilis, secundum naturam, secundum consuetudinem patriae, loco temporique conveniens, necessaria, utilis, manifesta quoque, ne aliquid per obscuritatem inconveniens contineat, nullo privato commodo, sed pro communi utilitate civium conscripta.
Good laws, then, should correspond with religion, should be consonant with the Faith, and ought to improve the life and "safety" of men. Conversely, political laws ought not do battle against the right worship of God, good customs, or detract from human safety or the public good.
For this reason, Zanchi believes it obvious that--to the extent that political laws are derived from the natural law--political laws are just and "do not contain less of God's will than do the other laws," that is natural law and divine law. (341) It is this feature that St. Paul recognizes in his epistle to the Romans (13:1): "Let every person be subject to the governing authorities." It is what Christ intended when he taught that we should render to Caesar that which was Caesar's (Matt. 22:21). In a similar vein, St. Peter in his first epistle enjoins the faithful to "accept the authority of every human institution (or ordinances)," "for the Lord's sake." (1 Pet. 2:13)
If this is the will of God that we be subject to our governing authorities, then we cannot resist those things that do not oppose God's will. . . . . So says the apostle Paul . . . in Romans 13, he said first that the magistrates were those who had received the sword from him and he later adds: "Therefore one must be subject, not only because of wrath but also because of conscience." [Rom. 13:2, 5] Why because of conscience? Because the magistrates hold the law over our conscience? Not at all. James 4 reads, "There is, in fact, one lawmaker." No, it is because the one who orders us to obey our magistrates is the law's authority and conqueror. He holds the law over our conscience.
(341) So Zanchi insists that human or political laws, if not contrary to the natural law or divine law, that is, if they are just, are binding in conscience upon the faithful. They are binding on the faithful through the natural law (and through the fact that they are derived from it), and through the divine law as revealed in the apostolic and the Lord's teaching.
Human laws can be unjust in two ways. First, laws are unjust if the one promulgating the law has no authority. (342) But even if the law is issued by one in authority, if it is ordered against the common good, and for the ruler's good or pleasure, then it remains unjust. A law that demands what is impossible is equally unjust. Laws are unjust if they fail in these things even if they do not go against an express injunction of divine law or contradict God's glory. The second way a law can be unjust is if the law opposes God or his divine law. "Whichever way they become unjust," Zanchi teaches, "unjust laws do not obligate our consciences, because God does not bind our conscience to unjust laws." (342) Zanchi properly observes that laws that may be unjust under the first category (but do not contradict divine law), and therefore do not bind in conscience, may still be obeyed at the discretion of the subject, provided that following it "does not keep us from loving our neighbor or avoiding all crimes." This is suggested by Matthew 5:41, where Christ teaches that if someone forces you to go one mile, go also a second mile.
If laws are unjust because they contradict divine law, however, they can be in no wise be obeyed. Since such laws "force us to do something contrary to God's glory," or something "that opposes his law," the proper response is to resist them. (342) This is the meaning of St. Peter as reflected in Acts 5:29: "We must obey God rather than men." It is likewise the teaching of St. Thomas, who states in his Summa (IaIIae, art. 96, 5):
If laws are unjust through their contradiction to the divine good as are the law of tyrants in leading people to idolatry or to anything else that is contrary to divine law, it is right to resist such laws in any way because this was said in Acts 5: It is better to obey God than man.
All this gives rise to two ways that one may sin with regard to law. First, by failing to obey the just laws of the magistrates. Second, by failing to refrain from obeying unjust laws that contradict God's law.
Zanchi then asks the question forced upon him by his Protestant sola gratia concept that suggests that a Christian is freed from law. "But, how should, or even could, every heart be subject to human laws," Zanchi queries, "when the just have been freed from the law and the law is not profitable for the just?" (343) In responding to this quandary, Zanchi suggests that the law has two functions. First, it has a pedagogical role in teaching what is to be done, and what is to be avoided. Second, the law is a "rule for actions" which obliges and urges those subject to the law to obedience. This bifurcated function of the law results in a two-fold subjection to the law, depending upon whether one is wicked or one is just. The wicked are subject to the law "by compulsion through force and obligation." The just or good, on the other hand, are subject to the law "voluntarily through the training and regulation of one's own actions." Those who "love the law" and "run to it by themselves" therefore do so not by force, but by their own accord and desire for obedience. The law, according to 1 Timothy 1:9, "is laid down not for the innocent but the the lawless." The innocent do not need the law because they "do what is included in the law" since "they have it written in their hearts." (343)
Zanchi then addresses the issue of why people should be bound by the law if the king is not subject to his own law. Zanchi acknowledges that kings are not subject to their own laws by means of compulsion, but neither do they have greater power than God, who ultimately judges them. But they are not really greater than their own laws, though they can alter or enact law by decision, because the purpose of the law is to benefit the State. The king, in any event, cannot be said to be entirely released from the rule of law:
[S]ince the law is the rule for good actions, princes are not released from their own laws as far as the public good is concerned. Instead, they must subject themselves to them by their own decision, and good princes ought to subject themselves willingly to them.
The greater king, one who is virtuous, is the king who subjects himself to the law. This is suggested by both Justinian in his Codex (1.14.4) ["for a sovereign to submit himself to the laws, is in fact a greater thing than imperial power" (Et re vera maius imperio est submittere legibus principatum.)] and by Gratian in his Decretum (9.2) [(Principes tenentur et ipsi vivere legibus suis . . . . Iusta est enim vocis eorum auctoritas, siquod populis prohibent, sibi licere non patiantur")] But this is all relative to the political or human law. The king has no such liberty or right to voluntarily compliance with respect to natural or divine law:
It is also certain that princes, as far as God's judgment is concerned, are not released from just laws that are derived from natural law and ordained for the public good whether from a higher power or from the princes themselves, becuas they ought to promote the public good themselves.
(344) "Therefore," Zanchi concludes this section, "after our first examination of all good laws with God as their source, we are bound by conscience to obey just political laws."
In the next blog post we will wrap up our review of Zanchi's analysis of human or political law and its relationship to natural law and divine law.
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