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) [1.6.14.48] 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, 1.6.14.45-46)

[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.

Girolamo Zanchi on Human Law, Part 2

Girolamo Zanchi

ZANCHI MAINTAINS THAT ALL HUMAN LAWS originate, at least with regard to their essence, from the natural law. Zanchi distinguishes between the command and the punishment or sanction of the law. The command in a human law is a conclusion derived from a principle of natural law. As an example, Zanchi observes that laws against murder, adultery, perjury, etc. are conclusions based upon the general principle of the natural law that one should not do to another what he does not want done to himself. Thus the essence of human law, with respect to its content or command component, is the natural law.

On the other hand, Zanchi asserts that the punishment or sanction associated with a law's breach is not derived the natural-law, other than perhaps its general principle that someone who sins ought to be punished and the commonly-held notion that murder should be punished by execution. With respect to specific punishments associated with a law's breach, the justice and fairness ought to be applied to match the severity of the crime. "Thus, it is appropriate, according to natural law," Zanchi concludes, "that sin be punished, but should one sin--murder perhaps--be punished by the sword, and another--petty theft perhaps--be punished by a decision of the law-makers" is a matter for human law.

Zanchi maintains as one of his theses that whenever human law conflicts with, or contradicts, the natural law, the human law is overturned and is unworthy of the name of law.

The reason for this is clear. If natural law is indeed the measure for human laws, then it is also the rule for human actions. Therefore, just as every action that does not agree with natural law is sinful, so, too, is every human law . . . .For this reason, Augustine rightly, in his On Free Will, claimed that a law that is not just should not be called so, and it is not just if it does not agree with natural law.

(340 [Note: The ellipses show where I have left off Zanchi's diatribe against the papacy and celibacy, a diatribe which displays an ignorance, or at least a disdain of, the evangelical counsels preached by Christ himself, and so is unworthy of publication in this blog dedicated to the Lord.])

Zanchi adds that because laws are essentially geared to the glory of God and the common good of men, those laws that contradict those aims are essentially unworthy to be called laws. (340) Zanchi endorses the discussion of Gratian's Decretum (4.2) about the qualities of good laws.

Erit autem lex honesta, iusta, possibilis, secundum naturam, secundum consuetudinem patriae, loco temporique conveniens, necessaria, utilis, manifesta quoque, ne aliquid per obscuritatem inconveniens contineat, nullo privato commodo, sed pro communi utilitate civium conscripta.

Good laws, then, should correspond with religion, should be consonant with the Faith, and ought to improve the life and "safety" of men. Conversely, political laws ought not do battle against the right worship of God, good customs, or detract from human safety or the public good.

For this reason, Zanchi believes it obvious that--to the extent that political laws are derived from the natural law--political laws are just and "do not contain less of God's will than do the other laws," that is natural law and divine law. (341) It is this feature that St. Paul recognizes in his epistle to the Romans (13:1): "Let every person be subject to the governing authorities." It is what Christ intended when he taught that we should render to Caesar that which was Caesar's (Matt. 22:21). In a similar vein, St. Peter in his first epistle enjoins the faithful to "accept the authority of every human institution (or ordinances)," "for the Lord's sake." (1 Pet. 2:13)

If this is the will of God that we be subject to our governing authorities, then we cannot resist those things that do not oppose God's will. . . . . So says the apostle Paul . . . in Romans 13, he said first that the magistrates were those who had received the sword from him and he later adds: "Therefore one must be subject, not only because of wrath but also because of conscience." [Rom. 13:2, 5] Why because of conscience? Because the magistrates hold the law over our conscience? Not at all. James 4 reads, "There is, in fact, one lawmaker." No, it is because the one who orders us to obey our magistrates is the law's authority and conqueror. He holds the law over our conscience.

(341) So Zanchi insists that human or political laws, if not contrary to the natural law or divine law, that is, if they are just, are binding in conscience upon the faithful. They are binding on the faithful through the natural law (and through the fact that they are derived from it), and through the divine law as revealed in the apostolic and the Lord's teaching.

Human laws can be unjust in two ways. First, laws are unjust if the one promulgating the law has no authority. (342) But even if the law is issued by one in authority, if it is ordered against the common good, and for the ruler's good or pleasure, then it remains unjust. A law that demands what is impossible is equally unjust. Laws are unjust if they fail in these things even if they do not go against an express injunction of divine law or contradict God's glory. The second way a law can be unjust is if the law opposes God or his divine law. "Whichever way they become unjust," Zanchi teaches, "unjust laws do not obligate our consciences, because God does not bind our conscience to unjust laws." (342) Zanchi properly observes that laws that may be unjust under the first category (but do not contradict divine law), and therefore do not bind in conscience, may still be obeyed at the discretion of the subject, provided that following it "does not keep us from loving our neighbor or avoiding all crimes." This is suggested by Matthew 5:41, where Christ teaches that if someone forces you to go one mile, go also a second mile.

If laws are unjust because they contradict divine law, however, they can be in no wise be obeyed. Since such laws "force us to do something contrary to God's glory," or something "that opposes his law," the proper response is to resist them. (342) This is the meaning of St. Peter as reflected in Acts 5:29: "We must obey God rather than men." It is likewise the teaching of St. Thomas, who states in his Summa (IaIIae, art. 96, 5):

If laws are unjust through their contradiction to the divine good as are the law of tyrants in leading people to idolatry or to anything else that is contrary to divine law, it is right to resist such laws in any way because this was said in Acts 5: It is better to obey God than man.

All this gives rise to two ways that one may sin with regard to law. First, by failing to obey the just laws of the magistrates. Second, by failing to refrain from obeying unjust laws that contradict God's law.

Zanchi then asks the question forced upon him by his Protestant sola gratia concept that suggests that a Christian is freed from law. "But, how should, or even could, every heart be subject to human laws," Zanchi queries, "when the just have been freed from the law and the law is not profitable for the just?" (343) In responding to this quandary, Zanchi suggests that the law has two functions. First, it has a pedagogical role in teaching what is to be done, and what is to be avoided. Second, the law is a "rule for actions" which obliges and urges those subject to the law to obedience. This bifurcated function of the law results in a two-fold subjection to the law, depending upon whether one is wicked or one is just. The wicked are subject to the law "by compulsion through force and obligation." The just or good, on the other hand, are subject to the law "voluntarily through the training and regulation of one's own actions." Those who "love the law" and "run to it by themselves" therefore do so not by force, but by their own accord and desire for obedience. The law, according to 1 Timothy 1:9, "is laid down not for the innocent but the the lawless." The innocent do not need the law because they "do what is included in the law" since "they have it written in their hearts." (343)

Zanchi then addresses the issue of why people should be bound by the law if the king is not subject to his own law. Zanchi acknowledges that kings are not subject to their own laws by means of compulsion, but neither do they have greater power than God, who ultimately judges them. But they are not really greater than their own laws, though they can alter or enact law by decision, because the purpose of the law is to benefit the State. The king, in any event, cannot be said to be entirely released from the rule of law:

[S]ince the law is the rule for good actions, princes are not released from their own laws as far as the public good is concerned. Instead, they must subject themselves to them by their own decision, and good princes ought to subject themselves willingly to them.

The greater king, one who is virtuous, is the king who subjects himself to the law. This is suggested by both Justinian in his Codex (1.14.4) ["for a sovereign to submit himself to the laws, is in fact a greater thing than imperial power" (Et re vera maius imperio est submittere legibus principatum.)] and by Gratian in his Decretum (9.2) [(Principes tenentur et ipsi vivere legibus suis . . . . Iusta est enim vocis eorum auctoritas, siquod populis prohibent, sibi licere non patiantur")] But this is all relative to the political or human law. The king has no such liberty or right to voluntarily compliance with respect to natural or divine law:

It is also certain that princes, as far as God's judgment is concerned, are not released from just laws that are derived from natural law and ordained for the public good whether from a higher power or from the princes themselves, becuas they ought to promote the public good themselves.

(344) "Therefore," Zanchi concludes this section, "after our first examination of all good laws with God as their source, we are bound by conscience to obey just political laws."

In the next blog post we will wrap up our review of Zanchi's analysis of human or political law and its relationship to natural law and divine law.

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

Girolamo Zanchi on the Natural Law, Part 4

ZANCHI PROPOUNDS THREE additional theses regarding the natural law as he closes his discussion of the topic. His first thesis is that, though inscribed on everyone's heart, God inscribes the natural law unequally so that some men are more profoundly and deeply aware of the natural law, whereas others less so. The second thesis is that the law is so inscribed that it cannot be altered or altogether erased from the human heart. The final thesis as regards natural law relates to its role of convicting humanity of its sin.

With respect to his first thesis, Zanchi offers at proof the variegated worship of God in pagan history. Although no race's culture is so barbaric, or its philosophy so primitive so as to bar entirely the thought that God exists, Zanchi insists that in the area of worship peoples have historically show great divergence, from external offering of idols to a God viewed as corporeal to a true internal, spiritual worship recognizing that God is spirit. Even within a people there is diversity, thus Cicero "came closer to the truth than many other Romans" in advocating an internal, pure, and integral worship of God in his book On the Nature of the Gods (De natura deorum). Similarly, great divergence is seen within a people's history. Thus the Romans "had also been taught by natural law that because God is spirit, he must not be represented or worshipped with idols, a belief that was continued for one hundred seventy years from the founding of Rome." This purity in worship was lost, and thus the "natural law failed their descendants in part," when they incorporated idols in the worship of God. This corruption is discussed by Augustine in his City of God (6.4) and by Plutarch in his Life of Numa Pompilius. Another example of this corruption in morals is in the matter of oaths. At first, the Romans shunned swearing of oaths on the grounds that God's name was holy, but barbarians had no similar piety.

The divergence, corruption, or lack of integrity in the natural law is not limited to the notion of God and his worship. It is also seen in the area of social life. There have been countries where "deception, thievery, and robbery" are not considered evil. (334) Historical examples that may be adduced are the Spartans, who advanced thievery as good. Though Romans punished false witness harshly by throwing perjurers off the Tarpaeian Rock, not all cultures have been severe with lying, and some nations have praised lying. Though the Romans had rigorous view of marriage and incest, the Canaanites might be pointed to as a culture that violated the natural law in the area of marriage and sexual relations, allowing incestuous marriage as a matter of course. Indeed, so pristine were the Roman laws on marriage that "their laws about unlawful marriages were always honored very reverently by Christians so that whatever was lewd to the Romans had to be lewd to them, while whatever was not lewd to the Romans also was not condemned by the Christians as lewd." (335)

The natural law is even seen where there is a variety of customs. The Greeks, for example, considered it unseemly for a man to grow his hair long, and for a woman to keep it short. The Persians, however, did not share this custom. Yet through both cultures, the natural law that "good and proper behavior should be maintained" persisted, though its content was modified by the cultural norms. (335)

All this establishes the validity of Zanchi's thesis that "natural law has not been inscribed equally on the hearts of all people nor is it today, though in the hearts of the elect, of course, it is always more fully and more effectively written as the Lord promised in Jeremiah." (335, referring to Jer. 31:31-34) "From this it is clear that natural law is one and the same among all nations if we look at its presuppositions, not at its conclusions or applications." (335)

Zanchi's penultimate thesis on the natural law is that the law "is so impressed upon the human heart that it cannot be altered by anyone or completely blotted out from the heart." (336) Zanchi explains that God wants all men judged by the same standard, and so the "same law" must "exist inside all people." (336) The law sets forth those standards by which they are convicted as well as those for which they are forgiven if they act justly. It is this feature that St. Augustine in his Confessions refers to when he says: "Your law [has been] written on men's hearts, which iniquity itself cannot blot out" (et lex scripta in cordibus hominum, quam ne ipsa quidem delet iniquitas). Conf., ii.4. For Zanchi, the principles are never blotted out, and they remain there to "prick the human conscience," and thus "convicts human beings of sin." (336) However, the conclusions that come from the fundamental principles of natural law may be "blotted from human hearts when they are handed over to their sins, as Romans 1 proves." (336)

Zanchi completes his analysis of the natural law by equating its content with the Decalogue. "[B]ecause the Decalogue defines and describes the same things that are called natural law," Zanchi states, "the Ten Commandments themselves are often called "natural law." (337) Before going into his discussion of human laws, which "are derived from natural law through human reason," Zanchi closes his treatment of the natural with this gem:

[I]t must be mentioned that just as Christ is the fulfillment of the entire Mosaic law, so, too, is he the fulfillment of the natural law because, as human beings are convicted of sin through the law, they flee to Christ for forgiveness . . . .

(337)

There is one statement which appears odd: "Remember that because of Adam's sin, natural law had been destroyed and became an offense but that it is not one now." (336) It is unclear to me exactly what Zanchi intended to communicate by this cryptic statement.

This terminates our discussion on Zanchi's treatment of the natural law, though his treatment on human law, ecclesiastical law, custom and title, divine law, and the law of the spirit, Mosaic law, the law of the Jewish State, and ceremonial laws warrant review. These will be handled in subsequent posts.

Girolamo Zanchi on the Natural Law, Part 3

THE PROTESTANT THEOLOGIAN Zanchi distinguishes three functions of the natural law. Its first function is to teach what is good, just, and upright, and distinguish it from what is evil, unjust, and shameful. By doing this, the natural defines what should be pursued, and what should be avoided. Therefore, the natural law not only has an instructive role, it also "obligates and pushes us to do good, and it protects us from evil." (330) Finally, it serves the function of convicting and condemning those who ignore its injunctions, as well as defending those who abide by it. In its condemnatory role, the natural law is found in the "heart" or in the "conscience." "Indeed, sinning against our conscience is sinning against the God who teaches and advises us from within." (331) The conscience is thus like a thousand witnesses.

Zanchi also distinguishes between "natural instinct" and "natural law." Since the Fall, our natural instinct inclines toward evil, but the natural law "teaches only what is good and prods us toward those things." The war between "natural instinct" and the "natural law" is what St. Paul references in Romans 7:23, when he speaks of the "law of members."

Zanchi also distinguishes two purposes of the natural law, a feature it shares with all law: the glory of God and the good of human beings, both in their private and public lives. (331) Zanchi elaborates further on the purpose of law as a human good. He notes that Aristotle characterized laws as making people virtuous, by both guiding and inspiring persons to attain the good. Though, as pointed out by Aristotle and St. Paul (in Romans 7:10), the law has an accidental negative--by informing one of the good it also distinguishes the evil. (332) The three highest goods to which the natural law urges (in increasing dignity) are: (1) to protect and save ourselves by adopting healthy lifestyles over unhealthy ones; (2) to encourage us to propagate by having and rearing children and attending to domestic matters; and (3) to have us know and worship God. The natural law good of knowing and worship of God is divided into two headings, analogous to those two "tables" of the Ten Commandments. "The first concerns the knowledge and worship of God, and the other concerns loving our neighbor." (332) Thus, the natural law follows revealed law.

Independent of revelation, Zanchi teaches that God is known through nature. Though Zanchi appears to maintain, consonant with Romans 1:20, that God can be known by man through his natural powers (i.e., reason) by the things that are made, he seems to take away with one hand what he concedes with the other. He insists that the knowledge of God cannot be known by man naturally through his own efforts, but is immediately imparted by God into man's heart. Here again, the Calvinistic strain drowns out the Catholic teaching that God can be known, at least in theory, by reason unaided by supernatural grace (though in practice it may be difficult or rare). Zanchi is more consistent in advancing Calvin's doctrine of total depravity, than in reconciling with Pauline teaching.

The second "table" of the natural law is essentially the "Golden Rule." "Maintain fellowship and good will among human beings; that is, do not do to another what you do not want done to you and vice versa." (333) "Christ himself," Zanchi observes, "confirmed this heading of natural law first when he reduced commands of the second tablet to the love of one's neighbor and then when he said, 'Do, therefore, to others whatever yo wish that people would do to you.'" (333) That the "Golden Rule" found in the Ten Commandments and taught by Christ also wended its way into the Gentiles is evidenced by the words of the Roman emperor Severus: "'Do not do to another what you do not wish to be done to you.'"

Zanchi is likely referencing the Historia Augusta, specifically that portion written by Aelius Lampridius, though it suggests that Emperor Severus's knowledge of the "Golden Rule" may have been derived from Jewish or Christian sources, and not from reason independent of Judaeo-Christian sources. Nevertheless, Severus considered it a fine summation of natural right, in that he appeared to have lived by it, and written it in his palace and on public buildings. The Roman historian Lampridius states that Emperor Severus, "used often to exclaim what he had heard from someone, either a Jew or a Christian, and always remembered, and he also had it announced by a herald whenever he was disciplining anyone, 'What you do not wish that a man should do to you, do not do to him.' (Quod tibi fieri non vis, alteri ne feceris.) And so highly did he value this sentiment that he had it written up in the Palace and in public buildings." Hist. Aug., LI.7-8.

From the "Golden Rule" are derived other laws that are also written in the hearts of all men: "Live justly; do not hurt another person. Give to each person his due, stay loyal; and other similar laws that are listed in the works of other secular writers." (333)

Zanchi closes his discussion on the natural law with three more Theses, each followed with discussion. We will discuss these in our next and last posting on the natural law as posited by Girolamo Zanchi.

Girolamo Zanchi on the Natural Law, Part 2

IN AMPLIFYING ON HIS DEFINITION OF THE NATURAL LAW following his definitional Thesis, Zanchi focuses on the will of God as law and as the basis of justice, though he is quick to add the the "divine will is not separate from divine wisdom." (328) For Zanchi, therefore, the "divine will" and "divine rule for what to do and what not to do" are synonymous. The will behind the Law, and the reason behind the law are, in the final analysis, equivalent.

Zanchi distinguishes the natural law from other laws by several features. First, the natural law is "inscribed in the hearts of all people," though in conformity with his novel theory, he suggests a historical distinction in the natural law. For Zanchi, there was a natural law ante lapsum and a natural law post lapsum. He concedes that the natural law before the fall was "maybe even co-created with Adam," but was entirely corrupted, "almost completely blotted out and extinguished because of sin," by mankind's original sin. Traces of it simply may not be found in what is now the blind and depraved natural spirit of man. Accordingly, the natural law current in the post-lapsarian dispensation "has been inscribed and impressed in our hearts anew by God because of his goodness." (328)

Therefore, it is called "natural law" not so much because it is passed down to us from Adam naturally (we are, indeed, by nature blind and depraved toward true goodness, as I have said earlier) but because God has so impressed it into our very souls by inscribing some general, natural principles of worship, goodness, fairness, and honesty that they seem innate and natural to us.

(328)

Zanchi finds his scriptural warrant in Romans 2:14-15 for his theory that the natural law after the fall is, in fact, not a natural gift or quality in man, a law mediated by nature, but is immediately given by God into men's hearts. He suggests that this is the law that Jeremiah prophesied about in Jeremiah 31:31-33:

31 Behold the days shall come, saith the Lord, and I will make a new covenant with the house of Israel, and with the house of Judah: 32 Not according to the covenant which I made with their fathers, in the day that I took them by the hand to bring them out of the land of Egypt: the covenant which they made void, and I had dominion over them, saith the Lord. 33 But this shall be the covenant that I will make with the house of Israel, after those days, saith the Lord: I will give my law in their bowels, and I will write it in their heart: and I will be their God, and they shall be my people.

How this prophecy--which is clearly anticipatory to the Jew and points to Christ's redemption and his repairing of the Fall's breach--relates back in time to Adam, Zanchi fails to tell us. Zanchi then provides a series of Scriptural string sites that establish man's perversion and sin, including Gen. 8:21, Jer. 17:9, John 3:6, 1 Cor. 2:14, Rom. 7:18. Because these scriptures speak to man's perversity and sinfulness, Zanchi reasons that the source of the natural law "must come from somewhere besides nature; that is, it must . . . come from God" immediately. (329) Zanchi's final argument is based upon the observation that if the natural law was a natural quality, it would "exist equally in all people," and since it is obvious that there are a variety of responses to justice, honesty, and worship of God among men, it follows (at least Zanchi reasons) that the natural law cannot be a natural quality, but must be "God's gift," a gift that is gratuitously (and apparently with divine arbitrariness) given to some men.

If you should read in some misguided treatise that natural law is a relic of the original image of God, know for a fact that it is not a relic passed down through Adam but something restored by God because of his goodness and grafted anew in our hearts, for if the relic of that image were passed down from Adam, either it would be sinful, or it would be an essential part of human nature.

In fact, we do not inherit anything from Adam except those things necessary for the establishment of the human race--and evil; that is, sin and misery, because no matter how great we may be, we are still born the children of wrath.

(330)

The scriptural basis for this novel concept of Zanchi is not convincing. It appears forced upon him by his efforts to reconcile his Calvinistic prejudice--which required him to hold man completely debased after the Fall--and his efforts to preserve what he could of the received teaching of natural law. He would have been better off to shed his pessimistic Calvinistic spectacles, and used his originally-Catholic eyes.

In the next post we will review Zanchi's teaching on the three functions of the natural law, and complete his observations on the natural law.

Girolamo Zanchi on the Natural Law, Part 1

THE THEOLOGIAN GIROLAMO ZANCHI (1516-90) dedicates a substantial portion of his treatment on law to the natural law. At the outset of his treatment on the natural law, Zanchi discusses the meaning of the term natural law, distinguishing the term natural law as used by various authorities, including Justinian, Canon and Civil lawyers, St. Paul, and St. Thomas. In reviewing these various definitions of natural law, Zanchi aims at limiting his use of the natural law to matters pertaining only to human beings, that is matters relating to man's intellect and spiritual soul, thus excluding from within the scope of that part of human life that man shares with the brute creation. "[C]ontrary to Aquinas, Zanchi wants to limit the use of the term natural law to that which pertains to human beings, thereby excluding its extension to the animal kingdom or to things that lack intellect (such as physical regularities in nature)." Grabill, 137.

Justinian's Digest and Institutions defines natural law broadly to include the brute creation in addition to man: "Natural law is what nature teaches to all animals." (323; quoting Digest, 1.1.1.3 and Institutions, 1.2). This includes aspects of human life that would seem beyond the mere intellectual life unique to man. Thus mating, reproduction, and the rearing of young would be part of the natural law under Justinian's broad definitions.

As used by Canon lawyers and theologians, however, the term natural law is restricted to human nature. Quoting Gratian's Decretum, Zanchi defines this concept of law as "law common to all nations and that is obeyed everywhere by natural instinct and not by any statute." (324, quoting Decretum, 1.7). This broad concept of the "law of nations" (ius gentium) includes matters of moral behavior, namely, the notion of God, the duty of worshipping him, and matters relating to piety, such as obedience to one's parents or country, as well as matters of self-defense. This concept found within the ius gentium is what theologians and canon lawyers have called natural law.

St. Paul, on the other hand, puts forth a notion of natural law that pertains to individual human affairs alone, outside of the context of the ius gentium. When St. Paul speaks about the natural law, he refers to it being "written on the hearts" of men, clearly precluding thereby any reference to animals, since this "law" (which is nothing other than Scripture or divine law) cannot be said to be written in the hearts of brute animals. Based upon the Pauline concept, St. Isidore defines natural law as "that which is common for all people." (324) However, Zanchi also notes that St. Paul's notion of natural law also comprehends a more narrow view, in that in 1 Corinthians 11, he refers to the Greek custom that men should have their hair short, while women should have it long, as something taught by "nature itself." Though St. Paul characterizes it thus, it is clear that this natural law was a custom specific to the Greek, and not common to all peoples.

Finally, St. Thomas limits the term nature in "natural law" to human nature, although there is and overlap with animals, since man, in addition to his unique rational nature, shares with the brute animals a certain similarity. St. Thomas's teaching appears consonant with St. Paul's teaching as St. Thomas "in fact, teaches that whatever we find commonly inside the human heart belongs to a part of natural law." (324)

Zanchi distinguishes three levels to the natural law: (i) negatively, the impulse of self-defense or self-protection; (ii) affirmatively, the impulse toward propagation, which includes the procreation and education of children in common with the animals, and includes such matters as marriage, reproduction, and the rearing of children; and (iii) an intellectual or spiritual level, one preeminently human, which recognizes man's inclination to God, to religious worship, to "do good to those with whom they live," and the tendency towards justice, honesty, and life in common. In this last level, St. Thomas included the life of virtue and every virtuous act. "All that is contained in the law and the Gospels; that is, the lifestyle described there, particularly that people should treat their neighbors as they [themselves] want to be treated, belong to the natural law." For this reason, St. Thomas concludes that "all evil and sin is unnatural," that is contrary to the natural law. (325, quoting S.T., IaIIae, art. 94, ad. 3). The natural law thus encompasses the "Golden Rule" that was so central to Jesus' moral teachings.

Unfortunately, it is here that Zanchi betrays his Calvinistic vein. It is manifest that Zanchi has adopted Calvin's pessimistic assessment of mankind, so that man's reason, his nature, since Adam's fall is essentially totally depraved. In its purity, the natural law can only be found before the Fall and after the Fall only by a sort of special grace. In fallen man, there is, in practice, no natural law.

Now, before there was sin in the world, natural law had been perfectly instilled in human beings. Divine will and the precepts for doing some things and avoiding others had been co-created with Adam when the image of God was breathed into him. Thus, before sin, this spark of reason had been perfectly placed inside human beings. After the Fall, however, natural law was almost entirely blotted out as was any law that looks to God and the worship of him or to our neighbours and the just and fair relationship with them. The entire image of God that stands firm in justice and holiness was lost. People became completely blind in their minds, totally depraved in their hearts, and altogether corrupted, especially in those things that human beings share with animals, plants, and other substances. In particular, human beings warped this instinctual natural law: Every living thing knows that it is right and good to protect itself, but that in order to do so, people now rush to any injustice or violence.

(325-36).

Of the three levels that Zanchi identified, the first two are "extremely corrupt," and the third level "almost entirely destroyed after the Fall." So corrupt is man's post-lapsarian nature that should we "ever see a sliver of this aspect of natural law again in a human being," it must be because "it was written in that person's soul a second time in its entirety by God himself." In other words, without re-inscription, Fallen man has no real aspect of natural law left.

After this discussion, Zanchi elaborates various definitions of the natural law before concluding with a definition of his own. The various definitions that Zanchi puts forth are:

Natural law . . . is a common principle; and therefore, a distinct rule put into the hearts and minds of human beings by God himself, warning them what they should do and what they should avoid. [Zanchi states that in this definition, the term "common" is defined as "human beings' shared knowledge, judgment, and perception by which all people without distinction pondering their actions in their hearts either condemn or absolve themselves. This perception also comes from God when he speaks or inscribes his judgments in the hearts and minds of human beings."]

. . .

Natural law is a light--that underlying spark of reason by which we discern right from wrong.

. . .

Natural law is the shared opinion to which all people together agree and to which God inscribed onto each person's heart in order to establish the most beneficial customs.

Dissatisfied with these definitions, Zanchi proffers one of his own, one that he categorizes as "lengthy but full and complete." It is, in fact, the entirety of this eighth Thesis:

Natural law is the will of God, and, consequently, the divine rule and principle for knowing what to do and what not to do. It is, namely, the knowledge of what is good or bad, fair or unfair, upright or shameful, that was inscribed upon the hearts of all people by God himself also after the Fall. For this reason, we are universally taught what activities should be pursued and what should be avoided; that is, to do one thing and to avoid another, and we know that we are obligated and pushed to act for the glory of God, our own good, and the welfare of our neighbor both in private and in public. In addition, we know that if we do what should be be avoided or avoid what we should do, we are condemned; but if we do the opposite, we are defended and absolved.

(327)

Ostensibly relying on St. Paul's teaching in his epistle to the Romans (specifically, Romans 2:14-15), Zanchi seeks to distance himself from St. Thomas's view that the natural law arises in man despite his fallen state. Contrary to this, Zanchi suggests that the natural law is no longer to be found in man's fallen state, except by the grace of God who has "inscribed it anew in the minds and hearts of human beings after the fall." Grabill, 138-39 (quoting Zanchi). For Zanchi, then, as Grabill summarizes it:

'Natural law' is not so called, then, because it was passed down to us from Adam naturally--for by nature human beings are now blind and depraved--but rather because God has "reinscribed" general, natural principles of worship, goodness, fairness, and honesty into humanity at large. For Zanchi, natural law cannot be identified with either a 'relic of the original image of God' or some 'essential part of human nature' but with the knowledge of morality that has been 'restored by God because of his goodness and grafted anew in our hearts.'

Grabill, at 139.

Girolamo Zanchi: The Eternal Law

GIROLAMO (JEROME) ZANCHI (1516-90), an Italian Reformer, is an important figure in the Protestant natural law tradition. As Grabill summarizes it, "Zanchi's contribution to the development of the Protestant natural-law tradition is immense . . . ." Grabill, 133. Contrary to both Calvin (1509-64) and Vermigli (1499-1562), however, Zanchi provided a more synthetic view of the natural law, and its relationship to the eternal law, divine law, and human law. His most exhaustive treatment of law is found in Chapter 10 of the fourth volume of his Operum theologicum, called "On the Law in General." Zanchi's exhaustive and synthetic treatment of the natural law within the scope of his Protestant "Summa," and his reliance upon Thomistic methodology and philosophy in crafting it, is what made Patrick Donnelly, S.J., refer to him as "Calvinist Thomist." Grabill, 134 (citing "Calvinist Thomism," Viator: Medieval and Renaissance Studies 7 (1976), 444).

Thankfully, Zanchi's "On the Law in General" has been translated Jeffrey J. Veenstra, and is readily available from the Acton Institute. Quotes from Zanchi's "On the Law in General" will be from this translation found in Volume 6, No. 1 (Spring 2003) 305-98 of the Acton's Institute's Journal of Markets & Morality. Zanchi's work is organized in a series of Theses, which are supported or amplified by discussion.

In the next series of blog postings, we will discuss Zanchi's view on the eternal law, and its expressions in the natural law, divine law, and human law.

At the outset of his treatment on law, Zanchi, following St. Paul's teaching in Romans 3:20, observes that law has different functions, and that, in addition to providing for desert and punishment, it has the "chief and essential function" of "teaching what should be done or what should be avoided, and commanding and obligating that these things are done or avoided." (318) These purposes of the law--to teach and to obligate--are suggested by the very terms for law in Hebrew and in Italian. In Hebrew, the law is torah, which means teaching. In Italian, the word for law is áligando, which means something which binds or obligates.

At its most basic, law aims toward justice which, following Justinian's Digest, is the constant and consistent desire to give fairly to all what they deserve. This includes God first, and then our neighbors. This was Christ's teaching. (319) Any act or omission that does not result in justice to God or neighbor is sin. The principal end of law, like that of all human acts or institutions, is to glorify God. (319-20) The second end of law is to further our good, the good of our neighbor, and the common good of the church and all men. (320). For Zanchi, then, "the primary goal of all good laws , which is first and foremost the glory of God, and then secondarily the good of one's neighbor understood both privately and publicly." Grabill, 135.

Quoting St. Augustine's On the Free Will (1.1, 2.93.3), and observing that the pagan Cicero concluded likewise, Zanchi maintains: "All laws have flowed from the eternal law of God." (320) A good law is one that reveals God will, is promulgated by magistrates with authority from God, and one that conforms to "reason and common sense" and "wisdom," which are likewise gifts from God. (320-21) Zanchi therefore teaches that "all good laws must ultimately participate in the divine wisdom, even though their moral content may be proximately derived from right reason." Grabill, 136. Because the ultimate authority and content of a good law is from God, St. James is correct: "'There is one lawgiver . . . who is able to save and to destroy.' (James 4:12) All other lawgivers derive from this one; thus every law has its origin in God." (321) So to Zanchi, "God must be seen as the primary (but not necessarily proximate) origin and source of good laws." Grabill, 135.

This is also the conclusion that is reached from the notion that the world is governed by Divine Providence:

Augustine, and later, Aquinas, concluded that at first and eternal law dwelt in God who is the most perfect embodiment of reason, and by this reason, God rules the world and thus is the reason for all things that happen. They, they argue, this reason was imparted to human beings and by it we rule our own activities, and from it flow out our laws.

(321) In keeping with his philosophical realism, and contrary to many of the reformers such as Luther and Calvin, Zanchi maintains the existence of an eternal law, something "in step with the Augustinian via antiqua tradition," Grabill, 136: "Law was established as the eternal will and rule for what must be done or avoided for God's glory and for the good of each individual privately and of the entire human race . . . ." (321) "From this analysis," Grabill observes, "it should be clear that Zanchi accepts the metaphysical and epistemological parameters of the realist natural-law tradition . . . ." Grabill, 136.

The eternal law of God is revealed in various ways. "He . . . inscribe[s] his will on the hearts of all people in his own way," the publishes it verbally to Adam, the patriarchs, the prophets, the apostles, on occasion through angels or miracles, even through "ordinary persons." (322) God spoke in written form in Moses, the prophets, and the apostles. Even to nations outside of the Jews, God has spoken, through a sort of divine inspiration, or through scholars and teachers and lawgivers such as Solon, Lycurgus, Romulus, and Numa.* It is through the various ways that God's eternal law has been made manifest that allows for the division of the eternal law into natural law, divine law, and human law. It is usually through a combination of divine law, natural law, and human law that God's eternal law is made known. "Even if, in fact, all just laws come from God, and have been established by the eternal reason of his will and even if in this respect, they are all divine, still because of the variety of people and of methods by which they have been revealed and spread, they occur in three types: natural law, human laws, and divine laws." (323 (Thesis 7)). "It is important," Grabill reminds us, "to keep in mind the differences between people to whom God's will was revealed and the methods God used to reveal his will," Grabill, 137, as these differences are what Zanchi relies on in coming to his further distinctions.

In our next blog posting, we will review Zanchi's view on the natural law.

*Solon (638 BC–558 BC) was the famed lawgiver of the Athenians. Lycurgus (ca. 800-730 BC) played an analogous role with the Spartans. Romulus (traditionally c. 771 - c. 717 BC) and Numa Pomplius (753-673 BC) were the first and second kings of Rome, respectively.