Part II, Chapter XXVI, 1

OF CIVIL LAWS

By CIVIL LAWS I mean the laws men are bound to observe because they are members not of this or that particular Common-wealth, but of a Common-wealth. Knowledge of particular laws belongs to those who study the laws of their respective countries; knowledge of civil law in general is open to anyone. The ancient law of Rome was called its civil law from civitas, meaning a Common-wealth. Countries formerly under the Roman Empire and governed by its law that still retain whatever parts of it they think fit call those parts the civil law, to distinguish them from the rest of their own civil laws. But that is not my subject here. I intend to show not what the law is here or there, but what law is, as Plato, Aristotle, Cicero, and various others have done without professing the study of law.

First, it is plain that law in general is not counsel but command; nor is it a command given by just anyone to anyone, but only by someone whose command is addressed to a person already obliged to obey him. Civil law adds only the name of the commanding person: Persona Civitatis, the person of the Common-wealth.

With this in mind, I define civil law thus: “CIVIL LAW is, for every subject, the rules the Common-wealth has commanded him, by word, writing, or another sufficient sign of its will, to use in distinguishing right from wrong—that is, what is contrary to the rule from what is not.”

Nothing in this definition is not evident at first sight. Everyone sees that some laws address all subjects in general, some particular provinces, some particular occupations, and some particular people. They are therefore laws for those to whom the command is addressed, and for no others. Laws are also rules of just and unjust, since nothing is considered unjust that does not violate some law. Likewise, only the Common-wealth can make laws, because we are subject to the Common-wealth alone; and commands must be conveyed by sufficient signs, or a man cannot know how to obey them. Whatever follows necessarily from this definition should therefore be acknowledged as true. I now draw the following conclusions.

1 In every Common-wealth the legislator is the Soveraigne alone, whether one man, as in a monarchy, or one assembly, as in a democracy or aristocracy. The legislator is the maker of law, and the Common-wealth alone prescribes and commands observance of the rules we call laws; therefore the Common-wealth is the legislator. But a Common-wealth is not a person and cannot act except through its representative, the Soveraigne. Thus the Soveraigne alone is the legislator. For the same reason, none but the Soveraigne can repeal an established law, since a law can be repealed only by another law forbidding its enforcement.

2 The Soveraigne of a Common-wealth, whether an assembly or one man, is not subject to civil laws. Having the power to make and repeal laws, he can free himself of that subjection whenever he pleases by repealing troublesome laws and making new ones; consequently, he was free already. Whoever can be free at will is free. Nor can anyone be bound to himself: whoever can bind can also release, so that whoever is bound to himself alone is not bound at all.

3 When long usage acquires the authority of law, the length of time does not confer that authority; the Soveraigne’s will, signified by his silence, does—for silence sometimes indicates consent. It remains law only while the Soveraigne remains silent about it. If a question arises concerning a right of the Soveraigne based not on his present will but on laws made earlier, the passage of time cannot prejudice his right; the question must be judged by equity. Many unjust acts and judgments go unchallenged longer than anyone can remember. Our lawyers count as law only reasonable customs and hold that bad customs should be abolished. But judgment of what is reasonable and what must be abolished belongs to the lawmaker, the Soveraigne assembly or monarch.

4 The Law of Nature and civil law each contain the other and have the same extent. The Laws of Nature, consisting of equity, justice, gratitude, and the other moral virtues dependent on them, are not properly laws in the condition of mere nature, as I said at the end of the 15th Chapter; they are qualities disposing men to peace and obedience. Once a Common-wealth is established, they become actual laws, and not before, because they are then commands of the Common-wealth and therefore civil laws. It is Soveraigne power that obliges men to obey them. To declare what equity, justice, and moral virtue mean in disputes between private persons, and to make them binding, requires ordinances of Soveraigne power and prescribed punishments for violations; these ordinances are therefore part of civil law. Thus the Law of Nature is part of the civil law in every Common-wealth in the world. Conversely, civil law is part of the dictates of nature. Justice—that is, keeping Covenant and giving each man his own—is a dictate of the Law of Nature. But every subject of a Common-wealth has made a Covenant to obey civil law, whether mutually with other subjects when they assemble to form a common representative, or individually with the representative when, overcome by the sword, they promise obedience in order to live. Obedience to civil law is therefore also part of the Law of Nature. Civil and natural law are not different kinds of law but different parts of it: the written part is called civil, the unwritten natural. Yet the Right of Nature, man’s natural liberty, may be curtailed and restrained by civil law; indeed, laws are made for no other purpose than this restraint, without which peace is impossible. Law came into the world for no other reason than to limit each man’s natural liberty so that people might help rather than harm one another, and unite against a common enemy.

5 If one Common-wealth’s Soveraigne subdues a people formerly governed by other written laws and then governs them under those same laws, they are nonetheless the civil laws of the victor, not of the conquered Common-wealth. The legislator is not the one whose authority first made the laws, but the one whose authority maintains them as laws now. Thus, where a Common-wealth’s dominion contains several provinces with different laws, commonly called the customs of the respective provinces, we must not suppose those customs derive their force merely from long usage. They were once written laws, or otherwise made known as the ordinances and statutes of their Soveraignes, and are now laws by virtue not of the passage of time but of their present Soveraignes’ ordinances. But if an unwritten law is generally observed in every province of a dominion and no injustice appears in its use, it can only be a Law of Nature, binding all humankind equally.

6 Since every law, written or unwritten, derives its authority and force from the will of the Common-wealth—that is, of its representative, the monarch in a monarchy and the Soveraigne assembly in other Common-wealths—one may wonder how opinions have arisen in the writings of eminent lawyers in various Common-wealths that, directly or by implication, make legislative power depend on private men or subordinate judges. For example: “The common law has no controller but Parliament.” This is true only where Parliament holds Soveraigne power and cannot be assembled or dissolved except at its own discretion. For if anyone else has the right to dissolve it, that person also has the right to control it, and consequently to control its acts of control. If no one else has that right, the controller of the laws is not Parlamentum, but Rex In Parlamento. And where a Parliament is Soveraigne, however many wise men it assembles from the countries under its rule, and for whatever purpose, no one will believe that the resulting assembly has thereby gained legislative power. Again, it is said that the two arms of a Common-wealth are force and justice, the first held by the king and the second placed in the hands of Parliament—as if a Common-wealth could exist with force in hands that justice lacks the authority to command and govern.

7 Our lawyers agree that law can never be against reason, and that the law is not the letter—that is, every possible interpretation of it—but the interpretation consistent with the legislator’s intention. This is true; the question is whose reason is to be accepted as law. It cannot be the private reason of any individual, for then the laws would be as contradictory as the schools. Nor can it be, as Sr. Ed, Coke calls it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b), an artificial perfection of reason gained through long study, observation, and experience, as his was. Long study can increase and entrench mistaken judgments; when men build on false foundations, the more they build, the greater the ruin. And those who study and observe with equal diligence for equal lengths of time do and must still differ in their reasons and conclusions. The law is made, then, not by that Juris Prudentia, or wisdom of subordinate judges, but by the reason and command of our artificial man, the Common-wealth. Since the Common-wealth is one person in its representative, contradictions between laws do not readily arise; and when they do, the same reason can remove them by interpretation or alteration. In every court of justice it is the Soveraigne, the person of the Common-wealth, who judges. A subordinate judge must attend to the reason that moved his Soveraigne to make the law, so that his sentence accords with it and is thus his Soveraigne’s sentence; otherwise it is his own, and unjust.

8 Since law is a command, and a command consists in declaring or manifesting the commander’s will by voice, writing, or some other sufficient indication, we can see that the Common-wealth’s command is law only for those who have means to learn of it. There is no law over those naturally incapable of understanding, children, or the insane, any more than over animals. Nor are they capable of being called just or unjust, since they have never had the power to make a Covenant or understand its consequences, and therefore have never undertaken to authorize a Soveraigne’s actions, as those who form a Common-wealth must do. Just as those deprived by nature or accident of all knowledge of law in general are excused, so too anyone who, through an accident not caused by his own fault, lacks the means to learn of a particular law is excused for not observing it. Strictly speaking, that law is no law for him. We must therefore consider here what indications and signs suffice for knowledge of what the law is—that is, the Soveraigne’s will—in monarchies and other forms of government alike.

First, if a law obliges all subjects without exception but has neither been written nor otherwise published where they can learn of it, it is a Law of Nature. For whatever men must recognize as law, not on another’s word but each through his own reason, must accord with the reason of all; only the Law of Nature can do so. The Laws of Nature need no publication or proclamation, being contained in this single saying approved throughout the world: “Do not do to another what you think it unreasonable for another to do to you.”

Second, if a law obliges only people of a certain condition, or a particular person, and is neither written nor announced by word, it too is a Law of Nature, known by the same arguments and signs that distinguish people of that condition from other subjects. Any law not written or otherwise published by its maker can be known only through the reason of the person who must obey it; it is therefore natural as well as civil law. For example, if the Soveraigne employs a public minister without written instructions, the minister must take the dictates of reason as his instructions. If he appoints a judge, the judge must recognize that his sentence should accord with his Soveraigne’s reason; that reason being always understood as equity, the Law of Nature binds him to it. If he appoints an ambassador, the ambassador must take as his instruction, in everything his written instructions do not cover, whatever reason dictates as most conducive to his Soveraigne’s interests; the same applies to every other minister of Soveraigne power, public or private. All these instructions of natural reason may be gathered under the name fidelity, a branch of natural justice.

Except for the Law of Nature, it is essential to every law that it be made known to everyone obliged to obey it, by word, writing, or some other act known to proceed from Soveraigne authority. For another’s will can be understood only from his own words or acts, or from an inference about his aim and purpose; and the purpose of the person of the Common-wealth is always presumed to accord with equity and reason. In ancient times, before writing was commonly used, laws were often put into verse so that ordinary people, taking pleasure in singing or reciting them, might remember them more readily. For the same reason Solomon advises a man to bind the ten commandments (Prov. 7. 3) on his ten fingers. As for the law Moses gave the people of Israel when renewing the Covenant, he commands them (Deut. 11. 19) to teach it to their children by talking of it at home and on the road, when going to bed and when rising, and to write it on the posts and doors of their houses; and (Deut. 31. 12) to gather the people, men, women, and children, to hear it read.

On civil laws

By civil laws, I mean the laws people must obey because they are members of a commonwealth, not because they belong to one particular commonwealth. Knowing a particular country's laws is the business of those who study that country's law professionally. But anyone can understand civil law in general. The ancient law of Rome was called its civil law from civitas, meaning a commonwealth. Countries once governed by the Roman Empire and its law still call the parts they have kept “civil law,” to distinguish them from the rest of their own civil laws. That is not what I mean here. My aim is not to show what the law is in this or that place, but what law itself is. Plato, Aristotle, Cicero, and several others have pursued this question without claiming to practice or study a country's laws professionally.

First, it is clear that law in general is not advice but a command. It is not a command from just anyone to anyone else. It is a command addressed by someone to a person already obliged to obey them. Civil law adds only the identity of the commander: persona civitatis, the person of the commonwealth.

With that in mind, I define civil law this way: “For each subject, civil law consists of the rules the commonwealth has commanded that subject, through speech, writing, or another sufficient sign of its will, to use in distinguishing right from wrong—that is, what is and is not against the rule.”

Every part of this definition is clear at first sight. Some laws address all subjects, some particular provinces, some particular occupations, and some particular people. They are laws for the people they address and no one else. Laws also set the rules for what is just or unjust: nothing counts as unjust unless it breaks some law. Only the commonwealth can make laws, since we owe obedience only to the commonwealth. Commands must also be communicated through adequate signs, or people would not know how to obey them. We should therefore accept whatever follows necessarily from this definition. Here are the conclusions I draw from it.

1 In every commonwealth, the only legislator is the sovereign, whether that is one person in a monarchy or an assembly in a democracy or aristocracy. The legislator is the one who makes the law. Only the commonwealth sets and commands obedience to the rules called laws. So the commonwealth is the legislator. But the commonwealth is not itself a person and can act only through its representative, the sovereign. The sovereign is therefore the sole legislator. For the same reason, only the sovereign can repeal a law: a law can be repealed only by another law forbidding its enforcement.

2 The sovereign of a commonwealth, whether an assembly or an individual, is not subject to civil laws. The sovereign can make and repeal laws, and can therefore escape any law that becomes troublesome by repealing it and making a new one. This means the sovereign was free of that law already, since anyone who can free themselves whenever they wish is free. Nor can a person be bound to themselves. Whoever can impose an obligation can release it, so someone bound only to themselves is not bound.

3 When long practice takes on the authority of law, that authority does not come from the passage of time. It comes from the sovereign's will, expressed through silence, which can sometimes show consent. The practice remains law only while the sovereign stays silent about it. If a question arises about the sovereign's rights under earlier laws rather than the sovereign's present will, the passage of time cannot weaken those rights. The question must be judged by fairness. Many unjust actions and judgments have gone unchallenged longer than anyone can remember. Our lawyers say only reasonable customs count as law and bad customs must be abolished. But deciding what is reasonable and what must be abolished belongs to the lawmaker, the sovereign assembly or monarch.

4 The Law of Nature and civil law each include the other and have the same scope. The Laws of Nature include fairness, justice, gratitude, and the other moral virtues depending on these. In the state of mere nature, as I said at the end of the 15th Chapter, they are not strictly laws. They are qualities that dispose people toward peace and obedience. Only when a commonwealth is established do they become actual laws, because they then become commands of the commonwealth and therefore civil laws. Sovereign power makes them binding. To settle disagreements between private people about what fairness, justice, or moral virtue requires, and to make these requirements binding, the sovereign must issue rules and establish penalties for breaking them. Those rules are part of civil law. Thus the Law of Nature is part of civil law in every commonwealth. Conversely, civil law is part of what nature commands. Justice means keeping a Covenant and giving each person what is their own, and it is commanded by the Law of Nature. Every subject has made a Covenant to obey civil law: either subjects agree among themselves to appoint a common representative, or those conquered by force individually promise obedience to the representative in return for their lives. So obedience to civil law is also part of the Law of Nature. Civil law and natural law are not different kinds of law but different parts of law. The written part is called civil; the unwritten part, natural. But civil law can limit the Right of Nature, a person's natural freedom. Indeed, the whole purpose of making laws is to limit that freedom. Without such limits there can be no peace. Law was introduced for no other reason than to limit individuals' natural freedom so they would help rather than hurt one another, and would unite against a common enemy.

5 Suppose one commonwealth's sovereign conquers a people who have lived under different written laws, then continues to govern them under those same laws. Those laws are now the civil laws of the victorious commonwealth, not the defeated one. The legislator is not the person whose authority first created the laws, but the person whose authority now keeps them in force. So when a commonwealth rules several provinces with different laws, often called each province's customs, we should not think those customs have force simply because they are old. In the past, they were written laws or otherwise announced as the rules and statutes of earlier sovereigns. Now they are laws not because time gives them a claim to authority, but because their present sovereigns have adopted them. But if an unwritten law is generally followed in every province of a dominion, and no unfairness appears in its use, it can only be a Law of Nature, binding everyone equally.

6 All laws, written or unwritten, get their authority and force from the will of the commonwealth's representative. That representative is the monarch in a monarchy and the sovereign assembly in other commonwealths. It is therefore surprising that prominent lawyers in various commonwealths write things that directly or indirectly place legislative power in the hands of private people or lower-ranking judges. For example, some say, “Nothing can overrule the common law except Parliament.” This is true only where Parliament has sovereign power and no one but Parliament itself can call or dissolve it. If someone else has the right to dissolve it, that person also has the right to overrule it, including its own rulings. If no one else has that right, the law's ultimate authority is not Parliament alone, but the king in Parliament, Rex In Parlamento. And if a Parliament is sovereign, its decision to call together people from the territories it rules, however numerous or wise they are and whatever its purpose, would not make anyone believe that this new assembly had gained legislative power. Another claim is that a commonwealth has two arms: force, held by the king, and justice, placed in Parliament's hands. But how could a commonwealth exist if justice lacked authority to command and govern whoever held force?

7 Our lawyers agree that law can never conflict with reason. They also agree that the law is not its bare wording, open to every possible reading, but the meaning that fits the legislator's intention. That is true. The question is whose reason counts as law. It cannot be any individual's reason, or laws would contain as many disagreements as the schools do. Nor can it be, as Sr. Ed, Coke puts it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b), “an artificial perfection of reason gained through long study, observation, and experience,” like his own. Long study can strengthen mistaken judgments. When people start from false assumptions, the more they build on them, the greater the collapse. Even people who study and observe for equal lengths of time and with equal care reach conflicting arguments and decisions, and will continue to do so. Law therefore comes not from the jurisprudence or wisdom of lower-ranking judges, but from the reason and command of our artificial person, the commonwealth. The commonwealth is one person through its representative, so its laws are unlikely to conflict. When they do, that same reason can resolve the conflict by interpreting or changing them. In every court, the sovereign, the person of the commonwealth, is the true judge. A lower-ranking judge must consider why the sovereign made a law and decide accordingly. The resulting judgment is the sovereign's; otherwise it is the judge's own, and unjust.

8 A law is a command, and a command expresses the commander's will through speech, writing, or another adequate sign. It follows that the commonwealth's command is law only for people who can learn about it. People naturally unable to understand, children, and people suffering madness are no more subject to law than animals are. They cannot be called just or unjust, because they have never been able to make a Covenant or understand its consequences. So they have never undertaken to authorize a sovereign's actions, as people who establish a commonwealth must do. If nature or accident has deprived someone of the ability to know about laws generally, that person is exempt. The same holds for anyone who, through no fault of their own, is prevented by accident from learning of a particular law. That person is excused for not obeying it. Strictly speaking, it is not a law for them. We must therefore consider what evidence and signs adequately reveal what the law is, meaning what the sovereign wills, in monarchies and other forms of government alike.

First, if a law binds every subject without exception but has not been written down or otherwise published where they can learn of it, it is a Law of Nature. When people must recognize something as law through their own reasoning, not through what others say, it must agree with everyone's reason. Only the Law of Nature can do that. Laws of Nature therefore need no publication or proclamation. They are summed up in one statement accepted throughout the world: “Do not do to another what you think it would be unreasonable for another to do to you.”

Second, suppose a law binds only people in a certain position, or a single person, but has not been written or publicly spoken. It too is a Law of Nature. It is known through the same evidence and signs that distinguish those people from other subjects. Any law not written or otherwise announced by its maker can be known only through the reason of the person who must obey it. So it is a natural as well as a civil law. For example, if the sovereign appoints a public official without written instructions, that official must follow what reason directs. If the sovereign appoints a judge, that judge must understand that the judgment must fit the sovereign's reason. Since this is always understood to be fair, the Law of Nature binds the judge to fairness. An ambassador, in all matters not covered by written instructions, must follow reason in choosing what best serves the sovereign's interests. The same goes for all other public and private officials serving the sovereign. All these instructions of natural reason can be called fidelity, which is a part of natural justice.

Apart from the Law of Nature, every law must be made known to everyone who is obliged to obey it. This must happen through speech, writing, or another act known to come from sovereign authority. We can understand another person's will only from their words or actions, or by inferring it from their aim and purpose. In the commonwealth's case, that purpose is always assumed to agree with fairness and reason. In ancient times, before writing was widely used, laws were often put into verse. People who were not educated could enjoy singing or reciting them and remember them more easily. For the same reason, Solomon advises a person to bind the ten Commandments (Prov. 7. 3) on their ten fingers. Concerning the law Moses gave the people of Israel when the Covenant was renewed (Deut. 11. 19), Moses tells them to teach it to their children. They should talk about it at home and while traveling, at bedtime and when getting up, and write it on their house's posts and doors. He also tells them (Deut. 31. 12) to gather men, women, and children to hear it read.