Part II, Chapter XXVI, 3

The abilities required of a good interpreter of the Law, that is, a good judge, are not the same as those required of an advocate: namely, the study of the Laws. For just as a judge ought to learn the facts from no one but the witnesses, so he ought to learn the Law from nothing but the statutes and constitutions of the Sovereign cited in the pleadings, or declared to him by persons authorized by the Sovereign Power to declare them. He need not decide beforehand how he will judge: the witnesses will give him what he must say about the facts, and those who show and authoritatively interpret the Law in their pleadings will give him what he must say about the Law there and then. The Lords of Parliament in England were judges and have heard and decided the most difficult cases, yet few were deeply versed in the study of the Laws and fewer still practiced law as a profession. Although they consulted lawyers appointed to be present for that purpose, the Lords alone had authority to pronounce judgment. Likewise, in ordinary trials concerning rights, twelve people from the common people are the judges and pronounce judgment not only on the facts but on the right, simply finding for the complainant or the defendant. Thus they judge both fact and right; and in a criminal case they decide not only whether the act was done, but whether it is murder, homicide, felony, assault, or the like, which are questions of Law. Yet because they are not expected to know the Law on their own, someone with authority informs them of it for the particular case they must decide. If they do not judge as he tells them, however, they incur no penalty unless it is shown that they acted against their consciences or were corrupted by a reward. The qualities that make a good judge or interpreter of the Laws are, first, a sound understanding of the principal Law of Nature called equity. This depends not on reading the writings of others but on the soundness of one's own natural reason and reflection, and is presumed to be greatest in those who have had the most leisure and inclination to reflect upon it. Second, contempt for unnecessary riches and advancement. Third, the ability in judging to divest oneself of all fear, anger, hatred, love, and compassion. Fourth and last, patience in hearing, diligent attention while hearing, and a memory that retains, digests, and applies what it has heard.

Laws have been distinguished and divided in various ways, according to the different methods of those who have written about them. Such divisions depend not on nature but on the writer's purpose, and serve each writer's own method. In Justinian's Institutes we find seven kinds of civil Laws.

1 The edicts, constitutions, and letters of the prince, that is, the emperor, because the whole power of the people lay in him. The proclamations of the kings of England resemble these.

2 The decrees of the whole Roman people, including the Senate, when the Senate put them to a vote. These were Laws at first by virtue of the Sovereign Power residing in the people; and those not repealed by the emperors remained Laws by imperial authority. For any Laws that bind us are understood to be Laws by the authority of the person who has power to repeal them. The Acts of Parliament in England somewhat resemble these Laws.

3 The decrees of the common people, excluding the Senate, when the tribune of the people put them to a vote. Those not repealed by the emperors remained Laws by imperial authority. The orders of the House of Commons in England resembled these.

4 Senatus Consulta, the orders of the Senate. When the people of Rome had grown too numerous to assemble conveniently, the emperor thought it fitting that people should consult the Senate instead of the people. These bear some resemblance to Acts of Council.

5 The edicts of praetors and, in some cases, of aediles, who resemble the chief justices in the courts of England.

6 Responsa Prudentum: the judgments and opinions of lawyers to whom the emperor gave authority to interpret the Law and answer those who sought their advice on legal matters. By the emperor's constitutions, judges were obliged to observe these answers in giving judgment. They would be like reports of decided cases if other judges were bound by the Law of England to observe such reports. For the judges of England's common Law are not properly judges but Juris Consulti, legal advisers whom the actual judges, whether the Lords or twelve people of the country, must consult on questions of Law.

7 Unwritten customs also—which by their nature imitate Law—are true Laws by the tacit consent of the emperor, provided they are not contrary to the Law of Nature.

Another division is between natural and positive Laws. Natural Laws have been Laws from all eternity and are called not only natural but moral Laws; they consist in the moral virtues, such as justice, equity, and all habits of mind conducive to peace and charity. I have already discussed these in the fourteenth and fifteenth chapters.

Positive Laws have not existed from eternity, but have been made Laws by the will of those who have held Sovereign Power over others. They are either written or made known to people by some other sign of the legislator's will.

Again, some positive Laws are human and some divine; and some human positive Laws are distributive, others penal. Distributive Laws determine the rights of Subjects, declaring how each person acquires and holds property in land or goods, and a right or liberty of action; these address all Subjects. Penal Laws declare what penalty shall be inflicted on those who violate a Law, and address the ministers and officers appointed to enforce it. For although everyone ought to know beforehand the punishments prescribed for transgression, the command is not directed to the offender, who cannot be expected faithfully to punish himself, but to the public ministers appointed to see the penalty carried out. Penal Laws are for the most part written together with distributive Laws, and are sometimes called judgments. For all Laws are general judgments or sentences of the legislator, just as every particular judgment is a Law to the person whose case is judged.

Divine positive Laws—for natural Laws, being eternal and universal, are all divine—are commandments of God that are neither from all eternity nor universally addressed to all humanity, but addressed only to a particular people or particular persons, and declared to be such by those whom God has authorized to declare them. But how can a person's authority to declare these positive Laws of God be known? God may command someone by supernatural means to deliver Laws to others. Yet the person who is to be bound by a Law must be assured of the authority of the person who declares it, and we cannot naturally know that this authority comes from God. How, then, can someone without supernatural revelation be assured of the revelation received by the declarer? And how can he be bound to obey the Laws so declared? As to the first question, it is plainly impossible for someone to be assured of another's revelation without a revelation addressed particularly to himself. He may be induced to believe it by seeing the other person work miracles, or observing the extraordinary holiness of his life, or the extraordinary wisdom or extraordinary success of his actions—all signs of God's extraordinary favor. But none is certain evidence of a special revelation. Miracles are marvelous works, but what is marvelous to one person may not be so to another. Holiness may be feigned, and visible successes in this world are most often God's work through natural and ordinary causes. Thus no one can know infallibly by natural reason that another has received a supernatural revelation of God's will. He can only believe it, with a stronger or weaker belief according as its signs appear greater or lesser.

But the second question, how he can be bound to obey these Laws, is less difficult. If the Law declared is not against the Law of Nature, which is undoubtedly God's Law, and he undertakes to obey it, he is bound by his own act. He is bound, I say, to obey it, but not to believe it: for men's beliefs and inward thoughts are subject not to commands, but only to God's operation, ordinary or extraordinary. Faith in supernatural Law is not its fulfillment but only assent to it; it is not a duty we render to God but a gift God freely gives to whom he pleases. Likewise, unbelief is not a breach of any of his Laws but a rejection of all of them except the natural Laws. What I say will become clearer through examples and testimony concerning this point in holy Scripture. The Covenant God made with Abraham in a supernatural manner was this (Gen. 17. 10): “This is the Covenant you shall observe between Me and You and your Seed after you.” Abraham's Seed had received no such revelation, nor did they yet exist. Nevertheless they were parties to the Covenant, bound to obey what Abraham should declare to them as God's Law; they could be bound only by the obedience they owed their parents, who, if subject to no other earthly power, as Abraham was in this case, have Sovereign power over their children and servants. Again, where God says to Abraham, “In you shall all Nations of the earth be blessed: For I know you will command your children, and your household after you to keep the way of the Lord, and to observe Righteousness and Judgment,” it is clear that the obedience of his family, who had received no revelation, depended on their prior obligation to obey their Sovereign. At Mount Sinai only Moses went up to God; the people were forbidden to approach on pain of death, yet were bound to obey all that Moses declared to them as God's Law. On what grounds, except their own submission: “Speak to us yourself, and we will hear you; but do not let God speak to us, lest we die”? These two passages sufficiently show that, in a Commonwealth, a Subject who has received no certain and assured revelation addressed particularly to himself concerning the will of God must obey the command of the Commonwealth as God's command. For if people were free to take their own dreams and fancies, or those of private persons, for God's commandments, hardly two would agree about what God's commandment was, yet each would despise the commandments of the Commonwealth in its name. I conclude, therefore, that in all matters not contrary to the moral Law, that is, to the Law of Nature, all Subjects are bound to obey as divine Law whatever the Laws of the Commonwealth declare to be such. This too is plain to anyone's reason: whatever is not against the Law of Nature may be made Law in the name of those who hold Sovereign Power, and there is no reason for people to be less bound by it when it is proposed in God's name. Moreover, nowhere in the world are people permitted to claim commandments of God other than those declared to be such by the Commonwealth. Christian states punish those who abandon the Christian religion, and all other states punish those who establish a religion they have forbidden. For in whatever the Commonwealth has not regulated, equity—which is the Law of Nature and thus an eternal Law of God—requires that everyone enjoy his liberty equally.

There is also a distinction between fundamental and nonfundamental Laws, though I have never seen an author explain what a fundamental Law means. Nevertheless, one can reasonably distinguish Laws this way.

For in every Commonwealth a fundamental Law is one whose removal causes the Commonwealth to fail and dissolve completely, like a building whose foundation is destroyed. Thus a fundamental Law binds Subjects to uphold every power granted to the Sovereign, whether a monarch or a Sovereign assembly, without which the Commonwealth cannot stand: the power of war and peace, of judging cases, of selecting officers, and of doing whatever the Sovereign deems necessary for the public good. A nonfundamental Law is one whose repeal does not bring about the dissolution of the Commonwealth, such as Laws concerning disputes between one Subject and another. So much for the divisions of Laws.

I find that even the most learned authors use the expressions Lex Civilis and Jus Civile—that is, civil Law and civil right—as though they meant the same thing. But they ought not to. A right is a liberty, namely the liberty that civil Law leaves us; whereas civil Law is an obligation and takes from us the liberty that the Law of Nature gave us. Nature gave everyone the right to secure himself by his own strength, and to invade a neighbor he suspected, as a precaution; but civil Law takes away that liberty wherever one can safely wait for the Law's protection. Lex and Jus therefore differ as obligation differs from liberty.

Laws and charters are likewise used as though they meant the same thing. Yet charters are gifts from the Sovereign, not Laws but exemptions from Law. The language of a Law is Jubeo, Injungo—“I command and enjoin”; that of a charter is Dedi, Concessi—“I have given, I have granted.” What is given or granted to a person is not forced upon him by a Law. A Law may be made to bind all the Subjects of a Commonwealth; a liberty or charter is granted only to one person or some one part of the people. To say that all the people of a Commonwealth have liberty in any particular case is to say that in that case no Law has been made, or that a Law once made has now been repealed.

CHAPTER XXVII. OF CRIMES, EXCUSES, AND EXTENUATIONS

A good interpreter of the law—that is, a good judge—does not need the same skills as a lawyer arguing a case, especially extensive study of the laws. The judge should learn the facts only from the witnesses. Likewise, he should learn the law only from the sovereign’s statutes and enactments cited during the case or explained to him by people whom the sovereign has authorized to do so. He need not decide in advance how to rule. Witnesses will tell him what to say about the facts. The people arguing the case will show him the law and interpret it with authority there and then. The lords of Parliament in England served as judges and heard and decided very difficult cases. Yet few had studied law much, and fewer still practiced it professionally. They consulted lawyers appointed to attend for that purpose, but only the lords had authority to give judgment. Similarly, in ordinary civil trials, twelve ordinary people are judges. They decide not just the facts but also the legal right, giving a simple verdict for the complainant or the defendant. In criminal cases they decide not only whether the act was done but whether it was murder, homicide, felony, assault, or something similar. Those are legal decisions. Because they are not expected to know the law on their own, someone authorized to explain it informs them about the particular case they are judging. Yet if they do not decide as he tells them, they face no penalty unless it is shown that they acted against their consciences or were bribed. A good judge or interpreter of the laws needs, first, a sound understanding of equity, that basic Law of Nature. This comes not from reading other people’s books but from the soundness of one’s own natural reason and reflection. People with the most time and inclination to reflect on it are expected to understand it best. Second, he needs to disregard unnecessary wealth and advancement. Third, he must be able to set aside all fear, anger, hatred, love, and compassion while judging. Fourth and finally, he needs patience in listening, close attention to what he hears, and the memory to retain, think through, and apply it.

Writers have divided and classified laws in different ways according to their different methods. Such divisions do not come from nature. Each writer chooses a division that serves his purpose and method. In Justinian’s Institutes we find seven kinds of civil law.

1 The prince’s edicts, enactments, and letters—that is, the emperor’s—because he held all the power of the people. The proclamations of the kings of England are similar.

2 Decrees of the whole Roman people, including the Senate, when the Senate put a question to them. At first, these were laws because sovereign power lay with the people. Those that the emperors did not repeal remained laws by imperial authority. Any law that still binds people is understood to do so by the authority of whoever has the power to repeal it. England’s Acts of Parliament are somewhat similar.

3 Decrees of the ordinary people, excluding the Senate, when their tribune put a question to them. Those that the emperors did not repeal remained laws by imperial authority. The orders of England’s House of Commons were similar.

4 Senatus consulta, or orders of the Senate. When Rome’s population became too large to assemble conveniently, the emperor thought it best for people to consult the Senate instead. These resemble acts of a council to some extent.

5 Edicts of praetors and, in some cases, aediles, officials like the chief justices in England’s courts.

6 Responsa prudentum: the rulings and opinions of lawyers whom the emperor authorized to interpret the law and answer legal questions. Imperial enactments required judges to follow those answers in giving judgment. These would be like reports of decided cases if the law of England required other judges to follow those reports. Judges of England’s common law are not, strictly speaking, judges but juris consulti, legal advisers. The actual judges, whether lords or twelve local people, ask them for legal advice.

7 Unwritten customs too, which by their nature imitate law, become real laws by the emperor’s tacit consent, provided they do not conflict with the Law of Nature.

Another division separates natural laws from positive laws. Natural laws have been laws from all eternity. They are called not only natural but also moral laws. They consist of moral virtues such as justice, equity, and all dispositions that promote peace and charity. I have already discussed these in Chapters fourteen and fifteen.

Positive laws have not been laws for all eternity. They were made laws by the will of people holding sovereign power over others. They are either written down or made known through some other sign of the legislator’s will.

Positive laws, in turn, are either human or divine. Human positive laws are either distributive or penal. Distributive laws define subjects’ rights. They tell each person how he acquires and holds ownership of land or goods, and what right or freedom of action he has. They address all subjects. Penal laws specify the penalties imposed on those who break laws. They address the officials appointed to enforce them. Everyone should know beforehand the penalties for breaking laws, but the command to inflict punishment is not directed at the offender, who cannot be expected to punish himself faithfully. It is directed at public officials appointed to carry out the penalty. Penal laws are usually written alongside distributive laws and are sometimes called judgments. Every law is a general judgment or ruling by the legislator. Likewise, each judgment in a particular case is law for the person whose case is judged.

Divine positive laws are God’s commands that have not existed from all eternity or been addressed to everyone, but have been addressed only to particular people or persons. Natural laws, being eternal and universal, are all divine too. Divine positive laws are declared to be God’s commands by people whom God has authorized to declare them. But how can we know that someone has this authority to declare God’s positive laws? God may supernaturally command someone to deliver laws to others. Yet a law binds someone only if he can be sure of the authority of the person declaring it. We cannot know naturally that this authority comes from God. How, then, can someone without supernatural revelation be sure of a revelation received by the person making the declaration? And how can he be bound to obey it? The answer to the first question is that, without receiving a revelation of his own, he plainly cannot be sure of another person’s revelation. Miracles he sees that person perform might make him believe it. So might that person’s unusually holy life, exceptional wisdom, or extraordinary success in what he does. All these are signs of God’s special favor, but none is certain evidence of a particular revelation. Miracles are amazing deeds, but what amazes one person may not amaze another. Holiness can be faked. Even unusual worldly success is usually produced by God through natural, ordinary causes. No one can know infallibly by natural reason that another person has received a supernatural revelation of God’s will. He can only believe it, more or less firmly according to how strong its signs appear to him.

The second question, how he can be bound to obey those laws, is easier. If the declared law does not contradict the Law of Nature, which is certainly God’s law, and he commits himself to obey it, his own act binds him. He is bound to obey, I say, but not to believe. People’s beliefs and inner thoughts are not subject to commands. They are subject only to God’s action, ordinary or extraordinary. Faith in supernatural law is assent to it, not fulfillment of it. It is not a duty we perform for God but a gift God freely gives to whomever he wishes. Likewise, unbelief does not break any particular law of his. Rather, it rejects all his laws except the natural laws. What I mean will be clearer from examples and evidence in Holy Scripture. God made a covenant with Abraham supernaturally, saying (Gen. 17. 10), “This is the covenant you shall observe between me and you and your descendants after you.” Abraham’s descendants had received no revelation and did not yet exist. Nevertheless they were parties to the covenant and were bound to obey whatever Abraham told them was God’s law. This could only be because they already owed obedience to their parents. Parents, if subject to no other earthly power, as Abraham was in this case, hold sovereign power over their children and servants. Again, God says to Abraham, “In you all nations of the earth shall be blessed: for I know you will command your children and your household after you to keep the way of the Lord and to observe righteousness and judgment.” Clearly the obedience of his household, which had no revelation, rested on their prior duty to obey their sovereign. At Mount Sinai only Moses went up to God. The people were forbidden to approach on pain of death. Yet they had to obey everything Moses declared to them as God’s law. What was the basis for this except their own submission: “Speak to us and we will listen to you, but do not let God speak to us, or we will die”? These two passages show clearly that a subject in a commonwealth who has received no certain, personal revelation of God’s will must obey as God’s law what the commonwealth commands him to obey as such. If people were free to treat their own dreams and fantasies, or those of private individuals, as God’s commands, hardly two people would agree about what God commanded. Each would despise the commands of the commonwealth in comparison. I therefore conclude that, in everything that does not contradict the moral law—that is, the Law of Nature—all subjects are bound to obey as divine law whatever the laws of the commonwealth declare to be divine law. Reason also makes this clear. Whatever does not contradict the Law of Nature can be made law in the name of those who hold sovereign power. There is no reason people should be less bound by it when it is put forward in God’s name. Besides, nowhere in the world may people claim that God has given other commands than those the commonwealth declares to be his. Christian states punish those who abandon Christianity, and all other states punish those who establish a religion they forbid. When the commonwealth has not regulated a matter, equity—which is the Law of Nature and therefore God’s eternal law—requires that everyone have equal freedom in it.

There is also a division between fundamental and nonfundamental laws. But I have never seen an author explain what a fundamental law means. Still, it is quite reasonable to divide laws in this way.

In every commonwealth a fundamental law is one whose removal makes the commonwealth collapse and dissolve completely, like a building whose foundation is destroyed. A fundamental law therefore binds subjects to maintain every power given to the sovereign, whether a monarch or a sovereign assembly, without which the commonwealth could not stand. Such powers include making war and peace, judging cases, choosing officials, and doing whatever the sovereign considers necessary for the public good. A nonfundamental law can be repealed without dissolving the commonwealth, such as a law about disputes between subjects. That is enough about the divisions of laws.

I find that even the most learned authors use Lex Civilis and Jus Civile—that is, civil law and civil right—as though they meant the same thing. They should not. Right is freedom, specifically the freedom civil law leaves us. Civil law is an obligation and removes freedom that the Law of Nature gave us. Nature gave everyone the right to secure himself by his own strength and to attack a neighbor he suspects may threaten him as a precaution. Civil law removes that freedom whenever one can safely wait for the law’s protection. Lex and jus are thus as different as obligation and freedom.

People also use “laws” and “charters” as though they were the same thing. But charters are gifts from the sovereign, not laws; they are exemptions from laws. The wording of a law is Jubeo, Injungo, meaning “I command and order.” The wording of a charter is Dedi, Concessi, meaning “I have given, I have granted.” What is given or granted to someone is not forced on him by a law. A law can bind all the subjects of a commonwealth. A freedom or charter is granted only to one person or one part of the people. To say that all the people of a commonwealth have freedom in some matter simply means that no law has been made about it, or that a law once made has been repealed.

CHAPTER XXVII. ON CRIMES, EXCUSES, AND MITIGATING CIRCUMSTANCES