§ 1. We do not call law necessary in the same manner in every case. For eternal law, considered in itself—that is, the object of a just command, by which right things are commanded, and of the obedience by which commands are received—is everlasting. Thus it is necessary in such a way that its nonexistence is contradictory. For that an injury must not be inflicted and that equity must be cultivated is a most sacred law, and a necessary one which no reasoning can obscure and no force can break. For by no power—not even by the omnipotent power of God—can it be brought about that inflicting injury upon another is just.
§ 2. Eternal and natural law is necessary if creatures possessing reason and intellect exist. For those living beings, or spirits, endowed with a lofty and capacious mind and a free will, are by their nature subject to the command of a greater lord. For they depend upon the will and providence of him by whose power they were created; thus it is their nature to obey. Lactantius explained this excellently in book 6, chapter 8: “True law is indeed right reason, consonant with nature, diffused among all, constant and everlasting, which calls to duty by commanding and deters from wrongdoing by forbidding. Yet it neither commands nor forbids the upright in vain, nor moves the wicked by commanding or forbidding. It is not lawful for this law to be extended, nor is it permitted that anything be derogated from it, nor can it be wholly abrogated. Nor indeed can we be released from this law either by the senate or by the people; nor must another expositor or interpreter be sought. Nor will there be one law at Rome, another at Athens; one now, another hereafter. Rather, one everlasting and immutable law will embrace all nations and every time; and God will be, as it were, the one common master and commander of all—the inventor, judge, and enactor of this law. Whoever does not obey him will flee from himself and spurn the nature of the human being; by this very fact he will suffer the greatest penalties, even if he escapes the other punishments which are so regarded.”
Thus a rule has been implanted in the mind itself, and therefore in the nature of justice and holiness. Hence it was rightly said: God reigns where law reigns.
For without law, what remains for earth and heaven To obey? All things are governed in succession, And by turns submit beneath their proper laws; the whole Earth submits, while fortunate Rome presses upon the diadems of kings. To rulers it was granted to restrain her; soon authority over them Grows for the gods above.
§ 3. Some cities were founded with laws from their very beginning; others gradually added and changed laws. Good laws have generally arisen from vices. Just as the onrushing force of diseases compelled the development of medicines, so human beings, driven by necessity, agreed upon various laws of living. Nevertheless, the condition of those cities which established laws together with their very walls is better; for since the safety of the city lies in its laws, as Aristotle advises in book 1 of the Rhetoric, chapter 4, fortifications of bodies give little assistance if little provision has been made for the integrity of minds.
§ 4. The principal difficulty concerns positive civil and canon laws, and even those which they call the positive laws of God. For many, hating laws and the order of laws, approve a lawless life and admire the ancient race among whom life was not conducted by law, among whom simple reason and charity stood in place of law:
Nor did the suppliant multitude fear The face of its judge, but without a judge they were safe.
But those men fabricate ideas and, as the poet says, ἀεροβατεῖ, walk upon the air; they seek or fashion a state such as no age has seen or will see. We know that the virgin earth was drenched with a brother’s blood and that the whole world before the flood was destroyed by waters; and yet, soon after so great a shipwreck, an insolent son mocked his parent and the lust for dominion blazed up on the plain of Shinar. I therefore judge as follows. Just as all human beings—and indeed every creature—are by their nature flexible in either direction, for by the very fact that a creature is from nothing it is mutable, waxen toward both evil and good, and therefore needs law in order that it may live in conformity with a right norm, be held back from evil, and become accustomed to virtue; so also, since we see very many persons sinning very frequently in the state, there is need of a law which not only forbids sins but also cuts away occasions for sins. But I shall omit those disputations concerning the absolute power and necessity of laws. Concerning external political laws, which are properly called civil, it is established that no city can be administered without them. For since human nature is corrupt and inclined to evil from youth, it must be restrained by fear of the laws. Without laws the society of human beings is robbery
and injustice; it is in no way a state. Nor would it be enough for there to be princes and magistrates, for they too are frequently drawn from the many and sometimes are worse even than the multitude. Certainly they do not always judge with the same disposition; nor is it enough that they have been well instructed, for commands change even good men. Formerly the judgments of princes stood for laws; but the proven faithfulness of the prince caused laws not to be missed. Augustine, book 4 of The City of God, chapter 6, from Pompeius Trogus: “At the beginning of affairs, the command of peoples and nations was in the hands of kings. Not popular ambition but moderation proven among good men raised them to the summit of this majesty. The peoples were bound by no laws; the judgments of princes stood for laws. It was customary to defend rather than extend the boundaries of command. The kingdoms of each ruler ended within his own homeland. Ninus, king of the Assyrians, was the first of all to change the ancient custom, as though ancestral to the nations, through a new lust for empire. He was the first to bring wars upon his neighbors and subdued peoples still untrained in resistance as far as the boundaries of Libya.” So too in book 2, at the beginning, On the Origin of Right and Laws, and in On Constitutions, § “But also what has pleased the prince.”
§ 5. But law is necessary not only for these reasons; primacy also must be given to it. For law is queen of all, as Pindar admonished: ὁ νόμος πάντων ἐστὶ βασιλεύς, θνητῶν τε καὶ ἀθανάτων. Law is queen of all human beings and gods. The angels too had their law, and private households have theirs. Marcianus speaks excellently in book 2 On Laws: ὁ νόμος πάντων ἐστὶ βασιλεὺς θείων τε καὶ ἀνθρωπίνων πραγμάτων, δεῖ δὲ αὐτὸν προστάτην τε εἶναι τῶν καλῶν καὶ τῶν αἰσχρῶν, καὶ ἄρχοντα καὶ ἡγεμόνα· καὶ κατὰ τοῦτο κανόνα τε εἶναι δικαίων καὶ ἀδίκων, καὶ ὅσα φύσει πολιτικὰ ζῷα, τῶν μὲν ποιητέων προστακτικόν, τῶν δὲ οὐ ποιητέων ἀπαγορευτικόν. That is: “Law is queen of all divine and human affairs. For it ought to preside over both good and evil, and to be prince and leader; and in accordance with this, to be the rule of just and unjust things and, for all living beings that are political by nature, the commander of things to be done and the forbidding authority of things not to be done.”
The necessity of order in every state, in an army, and in courts is so evident that without it no community can endure. For since innumerable things are indifferent and can rightly be done in different ways, nevertheless, unless an order is prescribed so that they are performed in some fixed manner, they cannot be done at all without difficulty. Without some right not only can no state act, but not even a band of robbers can. Conspiracies established against the laws themselves possess certain laws, nor can they have strength without some appearance of justice. Laws forbidding disgraceful things and commanding honorable things are not the only laws necessary; there are also other laws about lesser matters—about the right of boundaries, dripping rainwater, servitudes, roads, light, and overhanging roofs—without which a city cannot long endure. For all things are uncertain: not only possessions and buildings, but life itself. No one can be certain what is his and what belongs to another in a city in which nothing is acquired or retained by any law. Everything must be tossed about. No one can determine what he may leave to heirs or bequeath to those who have deserved well. Demosthenes therefore spoke very well when he said that the whole life of mortals is governed by laws and by nature. Nature is not sufficient in a state, even when it is upright and morals are good. There is need to have, so far as possible, a fixed norm for all things, fixed orders and limits, and a method of acting. The law concerning prescription is a harsh one and, unless restoration to the former condition is granted, is sometimes unjust; nevertheless, without it the safety of the state cannot be preserved unimpaired, because ownership of things would remain uncertain for a very long time. Law therefore removes disturbances, establishes peace, and establishes charity among citizens. A multitude of lawsuits does not follow from the right ordering of laws; for it is not a moderate multitude and knowledge of laws, but ignorance, that is litigious, as Cicero very well admonished in book 1 of On the Laws.
Law is the eye and light of the city. When it has been removed, darkness will possess all things, together with the works of darkness—that is, crimes. But if light sometimes flashes amid that dense darkness, it nevertheless will not be capable of being seen if the eye trembles with continual shaking.
Therefore a prudent legislator will write laws concerning even small matters which will have no small importance—not only for inducing a habit and love of obedience, but also for avoiding disturbances. The Ephors’ slight and ridiculous precept seemed so to many: ξυρεῖσθαι τὸν μύστακα, “To shave the beard.” But the reason is added: καὶ πείθεσθαι τοῖς νόμοις, “and to obey the laws”; for there ought to be great reverence even for the smallest laws. How many laws concerning minute things did the immense majesty of God enact for the Israelites? Yet they had to be observed, and they possess a just reason. What of that law in Deuteronomy 23:15? “You shall have a place outside the camp to which you may go out for the requirements of nature, carrying a small stake in your belt; and when you sit down, you shall dig round about and cover with the displaced earth that of which you have relieved yourself.” God therefore enacts a law even about the smallest and sordid things.
§ 6. Therefore, let no one esteem lightly laws concerning matters which are not great, for they concern things either necessary or useful. I have admired the care, solicitude, prudence, and vigilance of the princes of Germany—not only of each one in his own territories, but of them all together in public assemblies. Examine the imperial recesses: you will find sanctions worthy of German majesty concerning the most serious matters, and most prudent laws concerning the smallest as well—at Augsburg in the years 1530, 1551, 1559, and 1566; at Speyer in 1570; and at Frankfurt in 1577. Examine the headings: von den Schalcknarren / Pfeifferen / Trommetern / Spielleuten / Landfährern / Sängern / vnd Reimsprechern—concerning buffoons, pipers, trumpeters, players upon every kind of instrument, vagabonds, singers, and versifiers. For because the safety of all pertains to the care of princes, laws also had to be enacted concerning all. Nor does guardianship by laws obstruct liberty; rather, it is the fountain of liberty. It is wickedness to wish to be permitted what the laws forbid—not only in matters which nature has sanctioned, but also in those in which law has determined one part of what nature left free. The state has forbidden the carrying of swords; it is now contrary to nature for you alone to rise against all who obey and to go about girded with a sword. He who, with great labor, levels and paves roads through the rough places of hills and commands all to undertake their journey by a direct and safe route does not obstruct liberty. It is not the part of a free person, but of a madman, to run through thickets and rough places and to refuse to make use of another’s kindness. Heraclitus therefore spoke very well when he said that one must fight more for laws than for walls; for a city can exist without walls, but not without laws. Sparta long held walls in contempt, and at that time was more fortunate. A bull can live without horns, a lion without claws, and a boar without the thunderbolt of its teeth,
but none can live without a soul. Law is the soul of a city; therefore, the city cannot exist without it, since neither place nor any force of resources can preserve dominion without laws.
The state, therefore, will be safe if all fear the law as a tyrant, as Bias prudently judged, if the greatest authority resides ἐν τῷ ποικίλῳ ξύλῳ, in the variegated or inscribed wood.
Indeed, this too must be noted: excessive prosperity is most dangerous solely for this reason, that one who is excessively prosperous does not easily endure the yoke of laws, just as luxuriant horses throw off their rider. When Plato was once consulted about writing laws for a most flourishing and wealthy—and consequently most wanton—state, he replied: “It is not easy to write laws for such prosperous Cyrenaeans.” Gregory of Toulouse also speaks excellently in the Syntagma of Law, book 47, chapter 3, § 2: “This is among legitimate acts, because it cannot be called a judgment unless it is made according to the laws. And magistrates then rightly administer the state if they follow the laws. For he who wishes law to rule wishes God and the laws to preside; but he who wishes a city to be governed by a human being’s discretion adds a most savage beast, as Aristotle writes.” Although I know that Aristotle examined most diligently whether it is more useful for the best man to command than the best law, I think it truer that laws established by the best deliberations ought rather to be followed, as inflexible things rather than the mutable wills of human beings. As Plato too rightly thinks, the destruction of the state is imminent when laws do not command magistrates, but magistrates command laws.
§ 7. The Church also approves the laws of the state and makes use of them. The bishop of Bagai sought assistance from the laws, and Augustine judged that he had done this not only rightly but necessarily, since he had followed Paul’s example. Letter 50, to Count Boniface: “He therefore sought assistance from a Christian emperor, not so much for the sake of avenging himself as of defending the Church entrusted to him. If he had neglected this, his patience would not have been praiseworthy, but his negligence would deservedly have been blamed. For the Apostle Paul too was not taking thought for his transitory life, but for the Church of God, when he brought it about that the plan of those who had conspired to kill him was disclosed to the tribune. Hence it came about that an armed soldier escorted him to the place to which he was to be conducted, lest he suffer from their treachery. He also did not hesitate at all to invoke the Roman laws, proclaiming himself a Roman citizen, for Roman citizens were not then permitted to be afflicted with scourges. Likewise, lest he be handed over to the Jews who desired to kill him, he sought the aid of Caesar—a Roman prince, indeed, but not a Christian one. In this he sufficiently showed what the stewards of Christ ought to do afterward when they found Christian emperors while the Church was in danger.”
The same Augustine, in Letter 48 to Vincentius, also approves that the impious be bound by the chains of civil laws as though they were frenzied; for laws, even when burdensome, correct in a salutary manner. Thus in Letter 50: “For this happened to the Donatists which happened to the accusers of holy Daniel. For just as the lions were turned against the latter, so the laws by which they wished to oppress the innocent were turned against the former—except that, on account of Christ’s mercy, these laws which seem adverse to them are rather for their benefit, since many have been corrected through them and are corrected daily; and they give thanks that they have been corrected and freed from that furious destruction. Those who hated now love; and, when health has been restored, they rejoice over the most salutary laws which had been burdensome to them as greatly as they detested them in their madness. They are now aroused, with us and with a similar love, toward those who remain and with whom they would have perished, so that together we may press upon them lest they perish. For the physician is burdensome to a raging madman, and the father to an undisciplined son—the former by binding, the latter by beating, but both by loving. If, however, they neglect them and allow them to perish, that false gentleness is rather cruelty.”