NATURAL LAW REQUIRES THAT GOVERNMENTS BE INSTITUTED AMONG MEN, but it does not require any particular form of government; the natural law "leaves the choice as a thing arbitrary." I.10.5, 100. It is possible that the first such governments allowed great flexibility to their rulers to rule, as it were, on an ad hoc basis, "all permitted unto their wisdom and discretion." I.10.5, 100. Experience, however, soon found this to be an inconvenience, to such a degree that the remedy became worse than the evil sought to be remedied. Men "saw that to live by one man's will, became the cause of all men's misery." I.10.5, 100. This provided the impetus for the development of human or positive law. Law allowed men to "see their duties before hand, and know the penalties of transgressing them." I.10.5, 100. (It is, as Blackstone would call it, "artificial reason," which helps guide the otherwise arbitrary will of the ruler.)
From a theoretical vantage point, law is not required where "things be simple good or evil, and withal universally so acknowledged." These things were commonly held among men and govern their acts. Yet in practice things are not so simple. So it is that human law was found needful in various areas. The first such area was where wrongs against the natural law existed, but these violations constituted violations of norms or precepts that were more implicit than explicit ("more secret than that it can be discerned by every man's present conceit"), and so not readily seen "without some deeper discourse and judgment." To remove all doubt, to remove the risk of error in judgment, to assure than men would not be ignorant of their duties, both explicit and implicit under the natural moral law, and to remove any excuse arising out of such ignorance, real or feigned: for all these reasons, human laws were passed.
More than declaratory human laws were required, however. Human laws that provided for reward or deterrence, that is, desert and punishment, were also found to be necessary because of man's disposition to prefer his private good above the common good and to prefer sensual goods before divine goods. This disposition or bias endemic in man arises from the fact that doing good requires effort, whereas doing the contrary often involves pleasure. This "doth make men for the most part slower to the one and more prone to the other than that duty prescribed them by law can prevail sufficiently with them." Therefore laws were found needful that "add rewards which may more allure unto good than any hardness [i.e., difficulty] deters from it." Similarly, "punishments which may more deter from evil than any sweetness thereto allures" were considered warranted. I.10.6, 101. Consequently, though the natural law generally provides that virtue is ought to be rewarded and vice ought to be punished, "the particular determination of the reward or punishment belongs unto them by whom laws are made." I.10.6, 101. As an example:
Hooker observes that there is a significant distinction between the natural law and positive law, one arising from their bindingness. "In laws, that which is natural binds universally, that which is positive not so." I.10.7, 101. The reason why positive law does not universally bind arises from the consideration behind positive law. Hooker therefore explores the area where positive law and the natural law overlap. Positive law is found where an individual vows unto God an obligation (thus positive law would cover, say, a monk's vows which are a law unto him) as well as where there are contracts or promises among men, whether as a result of individual contract, or the greater social contract found in governance of a civil or political society. Hooker focuses on the positive law that govern the political or civil society.
From a theoretical vantage point, law is not required where "things be simple good or evil, and withal universally so acknowledged." These things were commonly held among men and govern their acts. Yet in practice things are not so simple. So it is that human law was found needful in various areas. The first such area was where wrongs against the natural law existed, but these violations constituted violations of norms or precepts that were more implicit than explicit ("more secret than that it can be discerned by every man's present conceit"), and so not readily seen "without some deeper discourse and judgment." To remove all doubt, to remove the risk of error in judgment, to assure than men would not be ignorant of their duties, both explicit and implicit under the natural moral law, and to remove any excuse arising out of such ignorance, real or feigned: for all these reasons, human laws were passed.
More than declaratory human laws were required, however. Human laws that provided for reward or deterrence, that is, desert and punishment, were also found to be necessary because of man's disposition to prefer his private good above the common good and to prefer sensual goods before divine goods. This disposition or bias endemic in man arises from the fact that doing good requires effort, whereas doing the contrary often involves pleasure. This "doth make men for the most part slower to the one and more prone to the other than that duty prescribed them by law can prevail sufficiently with them." Therefore laws were found needful that "add rewards which may more allure unto good than any hardness [i.e., difficulty] deters from it." Similarly, "punishments which may more deter from evil than any sweetness thereto allures" were considered warranted. I.10.6, 101. Consequently, though the natural law generally provides that virtue is ought to be rewarded and vice ought to be punished, "the particular determination of the reward or punishment belongs unto them by whom laws are made." I.10.6, 101. As an example:
Theft is naturally punishable, but the kind of punishment is positive, and such lawful as men shall think with discretion convenient by law to appoint.I.10.6, 101.
Hooker observes that there is a significant distinction between the natural law and positive law, one arising from their bindingness. "In laws, that which is natural binds universally, that which is positive not so." I.10.7, 101. The reason why positive law does not universally bind arises from the consideration behind positive law. Hooker therefore explores the area where positive law and the natural law overlap. Positive law is found where an individual vows unto God an obligation (thus positive law would cover, say, a monk's vows which are a law unto him) as well as where there are contracts or promises among men, whether as a result of individual contract, or the greater social contract found in governance of a civil or political society. Hooker focuses on the positive law that govern the political or civil society.
Title Page of Of the Lawes of Ecclesiastical Politie All law governing the polity has certain features. Law is a rule aimed toward the good, and therefore has a pedagogical feature. Yet law is more than merely hortatory or expository; it is more than a teacher. Law also should "enjoin" the good, and therefore should have a "certain constraining force." I.10.7, 102. The constraint or force behind law, however, is not toward inconvenience, as that "does seem unreasonable." I.10.7, 102.
The design of laws, therefore, requires great judgment and prudence. Laws ought to be passed by the wise, those men with more than common capacity and judgment. The wisdom and judiciousness required behind the passing of law is exceedingly important, as it touches upon the area of obedience to law and man's natural recalcitrance at being told what to do by another."Let a man though never so justly oppose himself unto them that are disordered in their ways," Hooker notes, "and what one among them commonly does not stomach at such contradiction, storm at reproof, and hate such as would reform them?" I.10.7, 102. Hooker insists that even though man natural bristles at being told what to do, perhaps most of all when he is in the wrong, being told what to do is a reasonable proposition in regard to law, and most men will recognize it. The reason for this is because law is seen as an objective, neutral, and reasonable ordinance:
They presume that the law does speak with all indifference, that the law has no side respect to their persons, that the law is as it were an oracle proceeded from wisdom and understanding.I.10.7, 102. Laws, however, do not bind because they are neutral, or objective, or reasonable, or passed by the wise and knowledgeable. It is not the quality of the law that imposes the obligation of obedience. In fact, what is true for the need of government in general is true for positive law passed by that government. The authority of law is obtained either as a result of being directly received from God or as a result of consent to be bound by those laws.
Laws they are not therefore which public approbation has not made so. But approbation not only they give who personally declare their assent by voice, sign, or act, but also when others do it in their name by right originally at the least derived from them. As in parliaments, councils, and the like assemblies, although we be not personally ourselves present, notwithstanding our assent is be reason of others, [who are] agents there in our behalf.I.10.8, 102. This consent, Hooker observes, need not be express consent, but may be implied even as a matter of established custom. Consent is, in any event, the essential underpinning of why laws bind. "Laws therefore human of what kind soever are available by consent." I.10.8, 103.
Of this point therefore we are to note, that since men naturally have no full and perfect power to command whole political multitudes of men; therefore utterly without consent we could in such sort be at no man's commandment living. And to be commanded we do consent, when that society whereof we are part has at any time before consented, without revoking the same after by the like universal agreement. Wherefore as any man's past deed is good as long as [he] himself continues: so the act of public society of men done five hundred year's since stands as theirs, who presently are of the same societies, because corporations are immortal: we were then alive in our predecessors, and they in their successors do live still.I.10.8, 103.
If consent is the touchstone of all law, then what explains the variance of laws among men? Hooker finds the explanation of the variety of laws among men in the "sundry particular ends whereunto the different dispositions of that subject or matter, for which laws are provided." The particular circumstances behind law leads to the particularism in laws, even though they are all binding by consent. Hooker then gives some examples of this principle.
It is particularism in circumstance that explains that law mentioned by Aristotle as existing among the Greeks having been passed by Pittacus. The Greeks thought reasonable a law that punished more severely an injury caused by one drunk, than one sober. Reason would normally have it that the drunk man is less in control of his faculties than a sober one, so the sober man ought to have more responsibility for his act than the drunk. Accordingly, it would follow that the sober man should be more severely punished. But the particularity, even perhaps the apparent unreasonableness, of this law was explained by the social problem associated with increased drunkenness that confronted the lawmakers, and it was this circumstance that justified the law that otherwise would appear unreasonable.
Similarly, though it would appear unreasonable to distribute offices by lot, in some cases it may be justified to distribute lower, or common offices by lot. First, since these offices are available to a large number of men and are within the competency of most, the harm associated with random appointment and the risk thereby of appointing an incompetent is reduced. Moreover, there are benefits associated with the distribution by lot, as it tends to reduce strife and division that would be caused by competition for those offices if not assigned by lot, and the discontentment that would arise among the large number of persons who were not successful in obtaining such offices. These negative aspects would be wholly mitigated by random assignment.
The exact opposite situation would apply in regard to the higher offices of state. These are naturally more properly the subject of popular election. In this way, the common person who does not have the requisite capacity for such office will not be begrudged by another's assumption of it, since it is he that granted it through his vote. Conversely, these offices will be attractive to the most competent citizens, "knowing they shall not lose their labor by growing in fame and estimation among the people." I.10.9, 104.
Finally, "if the helm of chief government be in the hands of a few of the wealthiest," i.e., in an aristocracy, laws may be needed that "make the punishment of contumely and wrong offered unto any of the common sort sharp and grievous." In other words, the rich ruler must be subject to being reproved for improper behavior toward the commoner. The reason for this is to prevent the evil whereby the "rich are most likely to bring themselves into hatred with the people," since the people will be prevented from such offices. I.10.9, 104. This would allow a proper check or outlet for the common people against their aristocratic rulers.
In summary, both the end of the law in conjunction with circumstances are what should determine the particularity of the law, even though the central feature of law is common consent. This aspect of law--that its end should be considered in light of the particular circumstances of time and place confronting the lawmaker--is, as it were, a law itself. "To this appertain those known laws of making laws," that is: that "lawmakers must have an eye to the place where," as well as to the "the men amongst whom," they rule. So it is because the lawgiver must have an eye to the "place where," and the men "amongst whom," they rule, "one kind of law cannot serve for all kinds of regiment." I.10.9, 104.
Portrait of Richard Hooker
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