HOOKER CONTINUES HIS TREATMENT of human law by addressing the distinction between what he calls mixed law and law merely human. He completes that discussion by addressing the issue of the Law of Nations or ius gentium.
Hooker distinguishes between those instances where human law, as it were, overlaps with laws of reason that pre-exist their confirmation by such law. Human laws, therefore, "establish some duty whereunto all men by the law of reason did before stand bound," or "else such as make that a duty now which before was none." I.10.10, 105. The former he calls "mixed," the latter he calls "merely human." This appears to be nothing other than the classic distinction between mala in se and mala prohibita, that is wrongs in themselves, prohibited whether there was human law or not, and wrongs because they are prohibited by law. Mixed laws are essentially confirmations or ratifications by human law of natural law. These laws are called mixed "because the matter whereunto it binds is the same which reason necessarily does require at our hands, and from the law of reason it differs in the manner of binding only." I.10.10, 106.
Frequently, mixed laws are the result of an effort by human lawgivers to correct some wrongful behavior that by "special accident" has been accepted through a corrupt custom. In these latter cases, the custom may be so accepted that the prohibition of the natural law before human law addresses it is not perceived. In other cases, human laws are required to reinforce the natural law because "the common sort" (hoi polloi) are led by the sway of their sensual desires. The mass of men "do more shun sin for the sensible evils which follow it among men, than for any kind of sentence which reason does pronounce against it." I.10.10, 105. Either of these instances justifies the use of human law to reinforce or prescribe what is already required by natural law.
Hooker thus concludes his treatment of human law as it is expressed in political societies:
Before Hooker addresses the issue of divine law, he cursorily addresses the issue of the Law of Nations, "a third kind of law which touches all such several bodies politic, so far forth as one of them has public commerce with another." I.10.12, 106-07. Hooker observes that social communion among men is natural, and that such interaction is both desired and desirable not only within a particular civil society, but among several civil societies.
Hooker distinguishes between "Primary" and "Secondary" laws of nations. The former involve "sincere" nature, whereas the latter involve "depraved nature." I.10.13, 108.
Title Page of Of the Lawes of Ecclesiastical Politie
Hooker does not intend to address the specifics of the Law of Nations, but notes that nations are limited in their interaction with other nations.
The same principles that apply among relations between nations ought to apply, mutatis mutandis, to the Christian churches and the maintenance of communion, a matter of which Hooker addresses at some depth, but which will not be addressed here.
With this, Hooker completes his treatment of human law. He turns his attention into those laws that God has made known to men by Revelation. That will be the subject matter of the next few blogs as we complete our treatment of Hooker's Of Laws of Ecclesiastical Polity.
Portrait of Richard Hooker
Hooker distinguishes between those instances where human law, as it were, overlaps with laws of reason that pre-exist their confirmation by such law. Human laws, therefore, "establish some duty whereunto all men by the law of reason did before stand bound," or "else such as make that a duty now which before was none." I.10.10, 105. The former he calls "mixed," the latter he calls "merely human." This appears to be nothing other than the classic distinction between mala in se and mala prohibita, that is wrongs in themselves, prohibited whether there was human law or not, and wrongs because they are prohibited by law. Mixed laws are essentially confirmations or ratifications by human law of natural law. These laws are called mixed "because the matter whereunto it binds is the same which reason necessarily does require at our hands, and from the law of reason it differs in the manner of binding only." I.10.10, 106.
For whereas men before stood bound in conscience to do as the law of reason teaches, they are now by virtue of human law become constrainable, and if they outwardly transgress, punishable.I.10.10, 106. Merely human laws do not contradict reason, but involve matters "which raeson does but probably teach to be fit and convenient," so that, before addressed by human law, "of it self it binds no man." I.10.10, 106. Hooker gives as examples of mixed laws, human laws that prohibit incest ("confusion of blood in marriage") or laws that prohibit polygamy ("the liberty of having many wives at once"). As examples of merely human laws, Hooker cites the laws of descent. Whereas in some countries descent is through primogeniture, in others descent is partible among all heirs. Whatever system of descent is chosen "there is no law of reason transgressed; because there is probable reason why either may be expedient, and for either of them more than probable reason there is not to be found." I.10.10, 106.
Frequently, mixed laws are the result of an effort by human lawgivers to correct some wrongful behavior that by "special accident" has been accepted through a corrupt custom. In these latter cases, the custom may be so accepted that the prohibition of the natural law before human law addresses it is not perceived. In other cases, human laws are required to reinforce the natural law because "the common sort" (hoi polloi) are led by the sway of their sensual desires. The mass of men "do more shun sin for the sensible evils which follow it among men, than for any kind of sentence which reason does pronounce against it." I.10.10, 105. Either of these instances justifies the use of human law to reinforce or prescribe what is already required by natural law.
Hooker thus concludes his treatment of human law as it is expressed in political societies:
Let it therefore suffice thus far to have touched the force wherewith almighty God has graciously endued our nature, and thereby enable the same to find out both those laws which all men generally are forever bound to observe, and also such as are most fit for their behoove, who lead their lives in any ordered state of government.I.10.11, 106.
Before Hooker addresses the issue of divine law, he cursorily addresses the issue of the Law of Nations, "a third kind of law which touches all such several bodies politic, so far forth as one of them has public commerce with another." I.10.12, 106-07. Hooker observes that social communion among men is natural, and that such interaction is both desired and desirable not only within a particular civil society, but among several civil societies.
Civil society does more content the nature of man than any private kind of solitary living, because in society this good of mutual participation is so much larger than otherwise. Herewith notwithstanding we are not satisfied, but we covet (if it might be [so expressed]) to have a kind of society and fellowship even with all mankind.I.10.12, 107. This desire to commune with peoples other than our own is what led Socrates to call himself a citizen not of any particular commonwealth, but of the world. It is also what drives men to visit foreign countries "to know the affairs and dealings of other people, yeah, to be in league of amity with them." I.10.12, 107. Laws are needed in this area, and for the same reason that they are required in the governance of "polity and regiment." I.10.13, 108. So it is that Laws of Nations have come about.
Hooker distinguishes between "Primary" and "Secondary" laws of nations. The former involve "sincere" nature, whereas the latter involve "depraved nature." I.10.13, 108.
Primary laws of nations are such as concern embassage, such as belong to the courteous entertainment of foreigners and strangers, such as serve for commodious traffic, and the like. Secondary laws in the same kind are such as this present unquiet world is most familiarly acquainted with, I mean laws of arms [war] which yet are much better known than kept.I.10.13, 108.
Title Page of Of the Lawes of Ecclesiastical Politie Hooker does not intend to address the specifics of the Law of Nations, but notes that nations are limited in their interaction with other nations.
The strength and virtue of that law is such that no particular nation can lawfully prejudice the same by any of their several laws and ordinances, more than a man by his private resolutions the law of the whole commonwealth or state wherein he lives. For as civil law being the act of a whole body politic does therefore overrule each several part of the same body: so there is no reason that any one commonwealth of itself should to the prejudice of another annihilate that whereupon the whole world has agreed.I.10.13, 108. On occasion, there are countries that trample on these principles, such as the Lacedaemonians, who prohibited strangers from landing on their coasts. Rogue nations such as these have been justly condemned.
The same principles that apply among relations between nations ought to apply, mutatis mutandis, to the Christian churches and the maintenance of communion, a matter of which Hooker addresses at some depth, but which will not be addressed here.
With this, Hooker completes his treatment of human law. He turns his attention into those laws that God has made known to men by Revelation. That will be the subject matter of the next few blogs as we complete our treatment of Hooker's Of Laws of Ecclesiastical Polity.
Portrait of Richard Hooker
No comments:
Post a Comment