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.

Sunday, January 30, 2011

Freedom and Law: Pope Leo XIII's Libertas praestantissimum, Part 3

NATURAL LAW IS NOT ONLY THE FOUNDATION of the moral life of individual man, but also of his social combinations, his societies, in particular, the state. "What has been said of the liberty of individuals is no less applicable when considered as bound together in civil society." LP, 9. So Leo XIII turns from the true notion of individual, moral freedom--doing what one ought--to civil law and notions of civil liberties.

The law of the State, in fact, is nothing but the natural law writ in human law, at least for those kinds of cases where the positive law of the State concern "what is good or bad by its very nature," quod est bonum malumve natura, the so-called malum in se and the bonus in se.
For, what reason and the natural law do for individuals, that human law, promulgated for their good, does for the citizens of States. Of the laws enacted by men, some are concerned with what is good or bad by its very nature; and they command men to follow after what is right and to shun what is wrong, adding at the same time a suitable sanction. But such laws by no means derive their origin from civil society, because, just as civil society did not create human nature, so neither can it be said to be the author of the good which befits human nature, or of the evil which is contrary to it. Laws come before men live together in society, and have their origin in the natural, and consequently in the eternal, law. The precepts, therefore, of the natural law, contained bodily in the laws of men, have not merely the force of human law, but they possess that higher and more august sanction which belongs to the law of nature and the eternal law.

Quae vero de libertate singulorum dicta sunt, ea ad homines civili inter se societate coniunctos facile transferuntur. Nam quod ratio lexque naturalis in hominibus singulis, idem efficit in consociatis lex humana ad bonum commune civium promulgata. --Ex hominum legibus aliae in eo versantur quod est bonum malumve natura, atque alterum sequi praecipiunt, alterum fugere, adiuncta sanctione debita. Sed istiusmodi decreta nequaquam ducunt ab hominum societate principium, quia societas sicut humanam naturam non ipsa genuit, ita pariter nec bonum procreat naturae conveniens, nec malum naturae dissentaneum: sed potius ipsi hominum societati antecedunt, omninoque sunt a lege naturali ac propterea a lege aeterna repetenda. Iuris igitur naturalis praecepta, hominum comprehensa legibus, non vim solum habent legis humanae, sed praecipue illud multo altius multoque augustius complectuntur imperium, quod ab ipsa lege naturae et a lege aeterna proficiscitur.
LP, 9.

Bust of Leo XIII

With respect to these matters that are evil by nature or good by nature--those matters that relate to the laws that exist before men ever gather together as societies, those that have their origin in the natural and consequently the eternal law, e.g., the law against the intentional killing of an innocent life--the civil legislator has a duty before both God and men. The duty of the civil legislator, the charge, the burden, the "munus" on him, is to "keep the community in obedience by the adoption of a common discipline," obedientes facere cives, communi disciplina adhibita. It also has the complementary duty of "putting restraint upon refractory and viciously inclined men, so that, deterred from evil, they may turn to what is good, or at any rate may avoid causing trouble and disturbance to the State."* LP, 9.

There are other areas where the civil authority may pass laws that do not have the direct relationship with the natural or eternal law, but have only a more or less remote relationship to the law of nature, where the law of nature treats the subject matter only in a general and indefinite way. At the extreme, these laws may even involve matters that are morally indifferent. These matters are typically referred to as the area of the mala prohibita where something that is morally indifferent (e.g., driving on the left side of the road in most Western countries) is made wrong by law for purposes of the common good (preventing accidents by maintaining orderly use of the highways). It would also include areas where matters that are not, in themselves wrong in nature, are proscribed for reasons of the common good, the boni prohibita (e.g., laws against gambling, or laws prohibiting hunting during certain seasons). Even these may still be be generally referred to the natural law obligation of each person to contribute to public peace and prosperity and to life in common:
For instance, though nature commands all to contribute to the public peace and prosperity, whatever belongs to the manner, and circumstances, and conditions under which such service is to be rendered must be determined by the wisdom of men and not by nature herself. It is in the constitution of these particular rules of life, suggested by reason and prudence, and put forth by competent authority, that human law, properly so called, consists, binding all citizens to work together for the attainment of the common end proposed to the community, and forbidding them to depart from this end, and, in so far as human law is in conformity with the dictates of nature, leading to what is good, and deterring from evil.
LP, 9. In most cases, even these human laws bind in conscience because of their relationship to the natural, and therefore eternal, law.**

The natural and eternal law, however, places immediate constraints upon personal and communal behavior. It places restraint on the power of the legislator. There are certain matters that are outside the ability of the individual or the State to change. Neither the individual nor the State are autonomous from the natural law or eternal law. They act under, and not outside, the auspices of the natural and eternal law. LP, 10. In support of this notion, Leo XIII invokes the words of St. Augustine:
I think that you can see, at the same time, that there is nothing just and lawful in that temporal law, unless what men have gathered from this eternal law.

Simul etiam te videre arbitror in illa temporali [lege] nihil esse iustum atque legitimum, quod non ex hac aeterna [lege] sibi homines derivaverint.***
LP, 10.

The intrinsic limit on civil authorities (which is nothing other than the awareness that the State is not divine, but under God) translates to the principle that laws that contradict the natural law or eternal law have no force and effect. They are nullities:
If, then, by anyone in authority, something be sanctioned out of conformity with the principles of right reason, and consequently hurtful to the commonwealth, such an enactment can have no binding force of law, as being no rule of justice, but certain to lead men away from that good which is the very end of civil society.

Si quid igitur ab aliqua potestate sanciatur, quod a principiis rectae rationis dissideat, sitque reipublicae perniciosum, vim legis nullam haberet, quia nec regula iustitiae esset, et homines a bono cui nata societas est, abduceret.
LP, 10.

Later in his encyclical, Leo XIII reiterates the principle, with greater clarity and fervor:
But where the power to command is wanting, or where a law is enacted contrary to reason, or to the eternal law, or to some ordinance of God, obedience is unlawful, lest, while obeying man, we become disobedient to God. Thus, an effectual barrier being opposed to tyranny, the authority in the State will not have all its own way, but the interests and rights of all will be safeguarded - the rights of individuals, of domestic society, and of all the members of the commonwealth; all being free to live according to law and right reason; and this, as we have shown, true liberty consists.

Verum ubi imperandi ius abest, vel si quidquam praecipiatur rationi, legi aeternae, imperio Dei contrarium, rectum est non parere, scilicet hominibus, ut Deo pareatur. Sic praecluso ad tyrannidem aditu, non omnia pertrahet ad se principatus: sua sunt salva iura singulis civibus, sua societati domesticae, cunctisque reipublicae membris, data omnibus verae copia libertatis, quae in eo est, quemadmodum demonstravimus, ut quisque possit secundum leges rectamque rationem vivere.
LP, 13.

Pope Leo XIII concludes this portion of his encyclical thus:
Therefore, the nature of human liberty, however it be considered, whether in individuals or in society, whether in those who command or in those who obey, supposes the necessity of obedience to some supreme and eternal law, which is no other than the authority of God, commanding good and forbidding evil. And, so far from this most just authority of God over men diminishing, or even destroying their liberty, it protects and perfects it, for the real perfection of all creatures is found in the prosecution and attainment of their respective ends; but the supreme end to which human liberty must aspire is God.

Natura igitur libertatis humanae, quocumque in genere consideretur, tam in personis singulis quam in consociatis, nec minus in iis qui imperant quam in iis qui parent, necessitatem complectitur obtemperandi summae cuidam aeternaeque rationi, quae nihil est aliud nisi auctoritas iubentis, vetantis Dei. Atque hoc iustissimum in homines imperium Dei tantum abest ut libertatem tollat aut ullo modo diminuat, ut potius tueatur ac perflciat. Suum quippe finem consectari et assequi, omnium naturarum est vera perfectio: supremus autem finis, quo libertas aspirare debet humana, Deus est.
LP, 11.

There were those in Leo XIII's day (and there are those in our day) that resist this sort of notion: that liberty, both individual and communal, is circumscribed by, indeed, defined with reference to the natural law or eternal law. They err both by excess and defect. One group errs by excess in individual liberty, subscribing a false notion of individual liberty wherein the individual is by nature free to do what he pleases, instead of doing what he ought. These err by defect in arguing that the state, therefore, has no business "legislating morality." These are the liberals. Another group errs by ascribing to the State powers it does not have (for example, powers to take private property), thereby adopting a defective notion of the natural law as it relates to the individual. Therein we may place communists or socialists. It is to the first group--the liberals--and specifically their erroneous theories of law and society, that Pope Leo XIII next turns. And in doing so tramples on the conventional shibboleths of modern society often supported, not by reason, but by propaganda, and often held, not for reasons of conscience, but as rationalizations, as cover, for inordinate desires.

*It is apparent that with respect to certain acts against the natural law, such as abortion, homosexuality, and laws pertaining to marriage, the modern State has wholly lapsed in its duty. The abandonment of its fundamental duties raises the question of whether the modern State, as a result of such abandonment, is legitimate, and, if legitimate, brutally oblivious to injustice and in serious state of disrepair. If a legislator has a duty to pass laws that uphold fundamental moral norms derived from the natural and eternal law, and the executive the duty to enforce them, it follows that we have a right, by natural justice, to insist that they comply with those duties.
**To go further into this are of whether human civil laws bind in conscience, one gets into the area of gradations or distinctions in civil laws, and into the controversial areas of, for example, whether a human law, though unjust ought to be obeyed for purposes of the common good, whether a human law may be disobeyed or not enforced for prudential reasons, whether a law is being enforced or has fallen into desuetude and so we are not under an obligation to follow it, whether we are dealing with purely penal laws (leges pure poenales) in which case they do not obligate in conscience with respect to the act prohibited or proscribed, but obligated in conscience in the matter of the payment of penalty, and so forth. Pope Leo XIII is therefore speaking generally.
***The quote is from St. Augustine's dialogue De libero arbitrio (On Free Will), I.6.15.

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