Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Thursday, October 14, 2010

Jacques Maritain and Natural Law: Human Positive Law

POSITIVE LAW, OR MERE HUMAN LAW, is the next law that Jacques Maritain addresses in the book Natural Law: Reflections on Theory and Practice. It should be noted that Maritain has not discussed, but "passes over" divine positive law, viz., law as revealed by God in revelation, such as that found in the Ten Commandments, in the Mosaic ceremonial law and temple cult, or in the New Testament in the institution of the Sacraments or the foundation of the Church. The positive law, as Maritain analyzes it, is pure human law, law that is human in both its source or authorship and in its knowledge.

The positive law in force in any particular social group, whether it be a question of customary right or written right, has to do with the rights and duties which are bound up in a contingent, not a necessary, manner with the first principle of the practical intellect: "Do good and avoid evil."

Maritain, 52. The power given to man by God to make law to govern and order the relationship among social groups is truly remarkable. We take this ability, which is clearly related to our freedom and our governance by reason--both a divine gift--, for granted. The ability to make law is something that relates to our being made in the image of God. The power to make law is part of our inheritance as imago Dei. It stands to reason that the power to make law is subordinate to, as it is reliant upon, the orders of natural law (morality) and eternal law (divine ordering). Human law, or positive law, has the power, within its range, to bind and to loose, to define certain things good or permissible, and certain things bad or proscribed.
Human reason intervenes here as a creative factor not only in that which concerns the knowledge of the law--as in the case of the law of nations [the ius gentium]--but in that which concerns the very existence of the law. It has the astounding power of laying it down that certain things will henceforth be good and others bad. . . . There is thus a moral good and a moral evil which depend upon the human reason because it takes into consideration the particular exigencies of the common good in these given given circumstances, in conformity, however, with principles of the Natural Law . . . . But the Natural Law does not itself prescribe the rules in question, it leaves them to the ultimate determination and initiative of the human reason.
Maritain, 52.

This view of positive law, of course, is what makes positive law binding upon men in conscience. The debitum legale or legal obligation that is posited by a human law, in a short of backwash, becomes also a debitum morale or moral obligation. This binding nature of positive law stems from the natural law, and so it follows that a positive law that is contrary to morals, to the natural law, is not, strictly speaking a law at all.

[A]n unjust law is not a law. This follows as a consequence from . . . . the fact that the positive law obliges by virtue of the Natural Law which is a participation in the Eternal Law. It is inconceivable that an unjust law should oblige by virtue of the Natural Law, by virtue of regulations which go back to the Eternal Law and which are in us a participation in that Law. It is essential to a philosophy such as that of Saint Thomas to regard an unjust law as not obligatory. It is the counterpart of this truth that the just law binds in conscience because it binds by virtue of the Natural Law. If we forget the one, we forget the other.

Maritain, 53.

We have forgotten one, and so we are forgetting the other. Our scholars and jurists have virtually banished the natural law from the halls of the law schools and from the pages of their opinions. Is it any wonder that they are flummoxed in the forging a theory of obedience to human law other than mere power or convenience? By severing the positive law's natural link with the natural law and eternal law, the positive law has become orphan. And like an orphan without a protector, without a guardian, he has become abused, ignored, slighted, and sits in the corner of an alley, shivering, hungry, bitter at the world, like a child Hitler, and seething in his anger, planning his revenge against all those who have slighted him. Woe to all men if this unbalanced child, morally unmoored and angry, should grow up and have placed in his hands power over his fellow man. There is no appeal to anyone from the judgments of this cruel and self-indulgent, and wickedly vengeful and overweening, orphaned law.

*The term "positive law" (ius positivum) was coined in medieval philosophical commentary (e.g., Thierry of Chartres, ca. 1135, then Abelard), and was the term applied to law when the focus was on the source of law. The source of positive law was that it was laid down or promulgated by a positive act (positum is Latin ‘laid down’), that it was not intrinsic, natural, but secondary and adjunct. It was an extension of the more basic forms of law, the eternal and natural law, and ius gentium, and thus could not contradict the more fundamental laws, but only extend it or apply it to contingent situations. It was thus subject to change, particularly when human positive law was involved. Even divine positive law was subject to change (e.g., the ceremonial and judicial precepts of the Old Testament).

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