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.

Wednesday, January 6, 2010

Girolamo Zanchi on Human Law, Part 1

Girolamo Zanchi

ZANCHI CONTINUES HIS TREATMENT on the law in general by proceeding from his analysis of the natural law to human laws. Zanchi defines "human laws" as those both "conceived" and "promulgated" through and by humans and human ingenuity. So human laws include those where man is the source of the law, as well as those where man is but the conduit by which such law is made or enforced. Thus, the source of human law may be divine law, natural law, or law "conceived from . . . [men's] own heads." (337).

Zanchi divides human laws into those that are "right and just," and those that are "tyrannical." (337). For laws to be "right and just," they must be conceived by proper authority, and must derived either from divine law or the natural law. Additionally, these laws must exist for "the good and well-being of the State or the church." Zanchi groups good and right customs with "right and just laws" because customs have the force of law.

Laws may be tyrannical as a result of various defects. They may be enacted by someone without authority to legislate. Though promulgated by someone in authority, laws may still be tyrannical. This is the result if, for example, laws are not passed by properly constituted authority for the common good, but for self or private interests. "These laws," Zanchi insists invoking Aristotle, "are unworthy of the word law." (337) Sinful traditions and customs are equally tyrannical, and Zanchi groups these along with tyrannical laws.

Human laws are useful, indeed, necessary, and reliance on the natural law alone is not either practical or even possible. Laws that govern men within a polity, what Zanchi calls "political laws" are a necessity. These are intended to keep the populace from evil and promote the good, promote the common good, and protect the state. (338, Thesis 1). The need for human laws to supplement natural law arises for two reasons. First, because the natural law relates to "general principles," and not all people are able to make proper conclusions from the general principles. "Therefore," Zanchi concludes, "there is a need that wise and thoughtful people be stirred by God even within the nations themselves, who clearly explain their laws from natural law for the well-being and protection of their State." (338)

The second reason is built upon the reality that men, at least in the fallen state, need to be prompted to do good and avoid evil. Thus, if love of virtue or hatred of vice is not sufficient to motivate all men, the "fear of punishment" will motivate the remainder. Since the natural law has no "external punishments" (but only "teaches, inclines, and accuses" men in the internal forum), and since the natural law "has not been so effectively written on the hearts" of men (so as to render it sufficiently "effective to protect people from evil or to push them to do good"), Zanchi concludes that human laws are both expedient and needful. This is true even in Christian states, for though Zanchi suggests that the natural law's effectiveness is "retained . . . only in the born-again elect," that is true "only in part." (338) Zanchi finds scriptural warrant for these views, in Paul's letter to the Romans: "The authority . . . bears the sword . . . to execute wrath on the wrong-doer" (Rom. 13:4) and in Paul's first letter to his disciple Timothy: "The law is laid down not for the innocent but for the lawless and disobedient, et cetera" (1 Tim. 1:9). The Pauline teaching finds expression in Isidore who is cited by Gratian in his Decretum (4.1): "Laws, however, have been made so that human audacity might be restrained by the fear of them and so that there might be a safe innocence among human beings and that among the wicked themselves, their audacity and facility for doing harm might be curbed by a powerful punishment." (Factae sunt autem leges, ut earum metu humana coherceatur audacia, tutaque sit inter improbos inocentia, etin ipsis improbis formidato supplicio refrenetur nocendi facultas.)

Zanchi concludes: "Thus, the practice of political laws is necessary for keeping people from evil, or else human society could not be saved." (338) Laws are meant to prevent us from becoming beasts, as Aristotle observes in his Politics. Men who flee from law and justice, under the notion of corruptio optimi pessima, are "the worst of all beasts." (339) All political laws, therefore, that have been ordained to promote virtue, discourage vice, and punish the evil doer "agree with the Holy Scripture, the prophets, Christ, and the apostles in Romans 13 and 1 Peter 2[13-17]." (339)

In the next post, we will review Zanchi's continuing analysis of the relationship between the natural law and political laws, including whether human laws that contradict the natural law are in fact laws at all, the bindingness of political laws upon us, the difference between the natural law and political laws, and the construction or interpretation of human laws.

Gratian's Decretum

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