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.

Saturday, January 16, 2010

Girolamo Zanchi on Human Law, Part 3

Girolamo Zanchi

ZANCHI CONCLUDES HIS TREATMENT on the relationship between human or political law and the natural law by addressing the issue of the construction or enforcement of human law, and by pointing out two significant distinctions between human law and the natural law.

With respect to the first issue, Zanchi insists that the natural law has a role in the application of human law in certain situations where the law--if enforced according to the letter--results in injustice. His reasoning as as follows.

Human laws, that is, positive laws of the State, have as their aim the promotion of the common good. On occasion, however, enforcement of the letter of this law may actually result in "the ruin of those people for whose sake it was enacted," thus contradicting its purpose. There are therefore instances where the "letter of the law" should not be followed; rather, the "purpose of the law and the spirit of the law-giver must be examined and followed." This appears to be an application by Zanchi of the legal maxim salus populi suprema lex est, the welfare of the people is the supreme law, a principle as old as the Roman Twelve Tables (Compare Cicero, De Legibus, 3.3.8 ("ollis salus populi suprema lex esto")

As an example of such an instance, Zanchi supposes a human law that provides that no person is allowed to open the city gates if the city is being besieged. Obviously, this law is unobjectionable from a general perspective, and it seeks to protect the citizens and promote the common good when the city is under seige by preventing the city from being occupied by enemy force. Thus, this law would derive from the natural law.

Zanchi then posits the situation where the city is under seige, and the city's army is outside the walls engaged in battle with the opposing army. The city's army retreats and seeks entry into the safety of the very city which they are defending. If the letter of the law is obeyed in this circumstance, the city's army will be slaughtered and without its army the city will ultimately be captured, defeating the law's purpose and the natural law. "[W]ho does not see that in such a case the city gates must be opened despite the letter of the law . . . .?" (345) Clearly, the letter of the law ought not to be followed in such and similar instances, but the purpose of the law, the intent of the legislator, and the natural law override the law's letter.

Justinian's Codex recognized this principle (1.14.5): "There is no doubt that he violates the law, who, adhering to its letter, violates its spirit . . . ." (Non dubium est in legem committere eum, qui verba legis amplexus contra legis nititur voluntatem . . . .). Similarly, this principle is carried forward in the teaching of the Church fathers and ecclesiastics, and applies in the context of divine law as well as human law. "Some law-followers," Zanchi states, "have actually sinned against the will of God" even when externally obeying the letter of the divine law itself because they act against its principle, its spirit. As examples of this, Zanchi cites the various encounters between Jesus and the Pharisees and Scribes related in the Gospel. These are examples where the letter of the law and the spirit of the law conflict. Thus, plucking heads of grain on the Sabbath did not violate the divine injunction to keep the Sabbath day holy (Mark 2:23-28; Matt. 12:1-7), nor did curing a man on the Sabbath (Matt.12:9-14), since they conformed to the purpose of the law, and the enforcement of the letter of the law contradicted its purpose.

Zanchi thus concludes:
Laws are enacted from natural law for the common good and the welfare of human beings, and only for as long as they do so do they have the power to obligate. If, therefore, it should happen that by sticking to the letter of the law, we act against the welfare of human beings, we have acted more against the law than in accordance with it.

(346) However, Zanchi cautions that this principle is not to be used without some restriction. The power to determine in the first instance when enforcement of the letter of the law violates the natural law--and therefore ought not to be obeyed--is with the authorities, assuming that they may coveniently be available. "When, however," the authorities "cannot be easily consulted and there is a danger in delay, and the case of the law is clear to each person," then in such instance "it is appropriate for the person involved, to whom the responsibility falls, or on whom the burden of the State is conferred," when the purpose "of the law is lost, to follow his own interpretation of the law." (346)

Zanchi completes his treatment of human laws by pointing out two fundamental distinctions between the human law and the natural law. The first is that, while human law changes, the natural law does not and cannot. The second difference is that human law only governs external acts, whereas the natural law covers both external and internal acts. He explores those two issues.

First, Zanchi observes that the natural law is unchanging, whereas human law changes depending on the contingencies of time, place, and personality. For this reason, there may be disagreement between human law and natural law. The natural law cannot change for the very simple reason that it "is simply certain, general eternal aspects of God's will, the revelation of the rule for doing and avoiding, written on the hearts of human beings." (347) Human laws, on the other hand, "cannot be eternal and unchangeable because their circumstances," in terms of "place, time, and personality" vary. (347) This distinction between the two is what makes St. Augustine state in his De libero arbitrio (On Free Will) [] that temporary laws may be suspended for a time (Appellemus ergo istam legem, si placet, temporalem, quae quamquam iusta sit, commutari tamen per tempora iuste potest.)

It follows that human laws must change to conform to the natural law. Human law must therefore change in two situations. First, the development in human reason, as a community advances from relative imperfection to relative greater perfection, demands that the human law be adapted to reason's development. Laws ought to reflect the same development one sees in philosophy or other sciences. Second, differences and varieties in people, communities, or States require different laws adapted to their specific situations. As an example of how the state of a people affects laws, Zanchi again refers to St. Augustine. If a people is virtuous, it may be acceptable for them to elect their own magistrates. However, if the people become depraved, then allowing them to elect their own magistrates may result in the election of criminals, and so the law allowing for participatory elections should be changed. (De Libero Arbitrio,

[Zanchi then applies this principle to the Church, and gives as an unfortunate example the selection of ministers; however, here he displays the prejudice of the Reformers which fails to give sufficient deference to the teachings of Christ on Church governance and its constitution.]

How, then, can human laws change, but the natural law not change?

The response to this . . . is quite simple: Anything that human laws retain from natural law cannot be changed, but anything that differs from it because of the particular circumstances and that impedes the public good more than it advances it must be changed. In addition, human laws by their own nature have their own individual circumstances. Thus, because circumstances change, it follows that the [human] law can change entirely too. Still, natural law maintains its general principles without any particular circumstances. Thus, it remains immutable.

(348) The second big difference between the natural law and human law is that the natural law is broader, more extensive than human law. The natural law "prohibits all vices and crimes, in general, both internal and external ones." Thus, the natural law "regulates not only external worship but also internal worship." (348) Likewise, the natural law, in particular the "Golden Rule," prohibits not only external injury to our neighbor, but internal injuries, such as nursing hatred and envy. "Love is commanded," by the natural law, "because we, ourselves, want to be loved."

In contradistinction with the natural law which governs both external and internal fora, human or political laws only relate to "external crimes" and "external duties." (349) Human laws do not reach into the inner part of man. The reason for this is that human laws have limited scope and purpose. Since human or political laws look only toward promoting the common good, they do not look at the private good of an individual except perhaps accidentally.

Moreover, even in externals, human law is limited. There is a prudential aspect in human law that is absent in the natural law. Human laws simply cannot prohibit every external wrong without resulting in greater harm to the common good. Human laws can only prohibit those wrongs that prudently can be prevented. Where something cannot be prevented, either as a result of human nature, custom, or the people's wishes, human law ought not be applied because it would be vain and fruitless or would result in greater harm. Thus Proverbs 30:33: "Pressing the nose produces blood" (qui vehementer emungitur elicit sanguinem). Zanchi suggests that Christ recognized this principle when, as related in Matthew 9:17, he says that if new wine is put into old wineskins, the old wineskins will burst and the wine will be lost. The new wine represents "harsher and stronger ideas," and if people are not ready for them "the people will fall from bad to worse and become more corrupt" by trying to hoist these ideas upon them. Thus, human or political law requires prudent and wise application. This element of human laws gives rise to one of the more important principles of human legislation: "It is essential that the laws be possible. By possible I mean, in accordance with both nature and the customs of the people." (349).

In conclusion, Zanchi's treatment of the natural law is substantially more traditional and classical than Calvin's treatment, though it appears more influenced by the Protestant Reformers' ideas than Vermigli, whose doctrines were reviewed in earlier posts on this blog. Zanchi's treatment, however, is much more complete and methodical than Calvin's and Vermigli's treatment of the natural law. Zanchi, nevertheless, does provide some basis for a Protestant tradition of the natural law, a tradition that, as we discussed in earlier blogs, Karl Barth vehemently, and perhaps--applying strictly the underlying principles of the Reformer's theology--logically rejected.

Doctrines of the natural law will invariably be affected by one's theological or philosophical presuppositions. Theological error will often find outlet in a false view of the natural law. Thus, for example, Calvin's theological error with respect to the depravity of man marred his view of natural law. A fortiori, Barth's theological error entirely blinded him to the continuing validity of the natural law. Similarly, one's philosophical presuppositions can affect one's doctrine of the natural law. Thus, someone with a nominalist or materialist, mechanistic philosophy (as distinguished from someone with a realist philosophy or a philosophy open to the existence of God) will be seriously hampered in his ability to grasp the possibilty eternal or natural law. Theological and philosophical traditions, in addition to our own culture's customs and our own internal passions and vices, can render our vision astigmatic, myopic, hyperopic . . . indeed, can make us even blind to the fullness of the eternal and the natural law, just as it can blind us to the Gospel.

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