Three Realms of Law

Starting in on the James Tully edited, Michael Silverthorne translated edition of Samuel Pufendorf's On the Duty of Man and Citizen (1682) (Online copy at Constitution.org), a reader cannot help but be struck by the powerful introduction that covers the time just after the 30 Years War and the Great Peace of Westphalia.  It is in this transitory period that Europe shifts from the power-basis system of Nation States that was continuous up to that time, to one of the Secular Nation State which would set the foundation for our modern understanding of Nations, States, Law and Duty.  Pufendorf does not stand alone, and points out that he draws in large part from Grotius and Hobbes, but what he does do is put down the philosophical foundation for the third part of our lives which, prior to that time, was subsumed either via the State or via Divine Revelation.  This third part is what we call Creation and it is run by Natural Law.  By establishing this part of our reasoning into our philosophy the foundations of all later Westphalian Nations is created, although it would take nearly two generations to become the standard lexicon of philosophy and how we approach our works within Creation.

Within our cognizance before that time there was the civil law, that instance of law created by the bodies that rule government, and Divinely Revealed law which was held in the realm of rewards in the afterlife for good works done in this one.  If the State saw its place over man due to the power of its structure, and motivation for good works was solely put into those things done in fear of punishment after death, there would not be a basis for any good society at all.  Most such societies were repressive, authoritarian and the State would dictate what was and was not allowable and even go so far as to dictate what is to be done on religious Holy Days.  Nature, when she was considered at all, was seen as the sole domain of the State and, as a created edifice, it was seen as malleable to the changing mood of the Creator or Creators.  If Nature was malleable to that degree, and the State's power was draconian in what could and could not be done about Nature, then the ability to actually examine our Natural world was circumscribed as belonging to the one realm or the other, and not being a separate realm in and of itself.

If the horrors of a war that saw Nobility and Royalty change sides within their families then requiring all subjects of the civil law to change their religious viewpoint to accord with that of their rulers was horrific, and it was to the point of public executions and purges against civil populations, then the tacit acceptance of the Church (and even Protestants) on that state of affairs was rendering mute the Divine Revelation and its Wisdom through the slaughter of innocents.  Between these two there was nothing, and if your heart bade you one way and the State bade you another, then you had the choice of convert, hide, flee or fight.  Without a moderating force between these Domains, there was repression, tyranny, bloodshed and horror, and yet that was not what the State of Man should be upon this Earth if one followed Divine Revelation.  Something was amiss.

Insight reveals another form of wisdom, however, that is not predicated on the State nor the Divine, although depends heavily on the latter for Creation.  This wisdom was not unknown before the 30 Years War, but was rarely the guiding path of Citizens, Nations or Theology because it addressed the Law of Nature in a way that did not look to the State or Divine Revelation for answers, but turned to the Creation as the direct artifact of the Divine and having the wisdom of Creation embedded within it.  To get to this wisdom would require the great faculty that man is blessed with: Reason.  Nature is to be approached with Reason as it will not lie to us about its Creation. 

The Law of Nature is unwritten in books, not handed down via Divine Revelation and cannot be found in any Civil Law Code, and yet it is a Law unto itself that we are all compelled to obey being products within it.  Because of these factors is defines its own Domain which is separated from the other two, although fully a part of the greater structure between them.  Thus it is not only complementary in being, that is to say it is necessary to have so as to understand the other Domains, but forms its own coherent set of Laws if we could but reason them out.  These are not Moral Laws, which are the realm of the Divine which concerns itself with the afterlife, nor is it the Civil Law, which concerns itself with matters punitive so that the State may exist, but are a set of Laws through which the Moral Laws speak to us as individuals and, from that, to the Civil Law which we create.

This is head turning and eye-popping stuff not just for war ravaged Europe that had 20% of its population killed by the 30 Years War (not to speak of plagues, famine, and the other followers of that Horseman) but becomes pertinent when, today, the movement to have the Nation State shift to dictate to us our approach to Natural Law follows in the same path of the pre-conditions for the 30 Years War.  When Reason is subverted to the power of the State it does not speak clearly and does not put forward that the Great Engine that creates the State must deal with all of those things not concerning the State.  It is here that Samuel Pufendorf gives us the self-evident truth that it is our mutual association that makes Society that then creates the Nation State, not the other way around.

To understand this and how it pre-dates Westphalia and Pufendorf, it is necessary to look at an older text on the English Common Law.  Bracton on the Laws and Customs of England has a home page at the Harvard Law School Library where the work attributed to Henry of Bratton is available for reading and it comes from that era written in the 1220-1230 timeframe with additions around 1250 will help in this endeavor.  Henry of Bratton was a judge who worked to get decisions on cases written down so that future judges would have an understanding of how cases worked and why they worked the way they did.  This is vitally important in a time when there wasn't much written law and there was much in the way of unscripted and local laws that were verbal in nature.  Further the domains of State and Church, along with the local laws, meant that there needed to be a differentiation of the realms of law so that a judge could properly figure out just where a case belonged in the legal realm.  From that would come the concept of natural law:

What natural law is.

[019] 21Natural law is defined in many ways. It may first be said to denote a certain
[020] instinctive impulse arising out of animate nature by which individual living things
[021] are led to act in certain ways. Hence it is thus defined: Natural law is that which
[022] nature, that is, God himself, taught all living things. The word ‘quod’ is then in
[023] the accusative case and the word ‘natura’ in the nominative. On the other hand,
[024] it may be said that the word ‘quod’ is in the nominative case, so that the definition
[025] will be this: Natural law is that taught all living things by nature, that is, by
[026] natural instinct. The word ‘natura’ will then be in the ablative case.22 This is what
[027] is meant when we say that our first instinctive impulses are not under our control,
[028] but our second impulses are. That is why, if a matter proceeds only as far as simple
[029] sensual pleasure, not beyond, only a venial sin is committed. But if it proceeds
[030] farther, to the contriving of something, as where one puts into practice what he
[031] has shamefully thought, it will then be called a third impulse and a mortal sin is
[032] committed.23 And note that for the reason that justice is will, taking into account
[033] rational beings only, natural law is impulse, regard being had to

[001] all creatures, rational and irrational. There are some who say that neither will nor
[002] impulse may be called jus, jus naturale or jus gentium, for they exist in [the realm of]
[003] fact; will or impulse are the means by which natural law or justice disclose or manifest
[004] their effect, for virtues and jura exist in the soul.24 This perhaps is said more clearly,
[005] that natural law is a certain due which nature allows to each man. Natural law is also
[006] said to be the most equitable law, since it is said that erring minors are to be restored
[007] in accordance with [natural] equity.25

Natural Law is given by God to all of Nature: it is a direct power grant from God to Nature.  Because of what Nature is, those within it act within certain ways (which goes beyond the animate, although the inanimate has constrictions based on lack of impulse) within that Natural Law.  We understand Natural Law as we are creatures of Nature and, thusly, a part of Creation.  The power of each creature within Nature is given by Natural Law and it acts within accordance to its form and powers with this thing we call 'instinct'.  Bracton's review of the law then starts to divide what the differences are between Natural instincts and those under conscious control so as to differentiate the realm of Nature and its laws and the realm of Moral Laws given to man by God via Revelation.

Because we are surrounded by Nature and take whole part of Nature, Natural Law applies to us as creatures and we are bidden to its Laws as none may deny them.  We may extend life, but even if that is to the end of time we will not be Eternal as Nature is, and we are merely mortal.  We cannot abolish the Laws of Nature, we cannot will gravity to disappear nor change the nature of electromagnetic emanations: we can define them, understand them, use them, but they are beyond are capacity to change as we would need change Nature to do so.  This part of us that takes part of creation is, thusly, limited to it.  The part not limited to it, that part which is conscious thought and reasoning, then allows us to work inside of Nature to understand it and utilize it.  To do so, however, we must put aside some of the power and liberties of animals that we get via Nature and Nature's God.  In doing that, in creating the next thing that allows us to be sustained within Nature by her products beyond as they are within Nature, we then must create the jus gentium.

Again, Bracton:

What the jus gentium is.

[017] 33The jus gentium is the law which men of all nations use, which falls short of
[018] natural law since that is common to all animate things born on the earth in the
[019] sea or in the air. From it comes the union of man and woman, entered into by the
[020] mutual consent of both, which is called marriage. Mere physical union is [in the
[021] realm] of fact and cannot properly be called jus since it is corporeal and may be
[022] seen;34 all jura are incorporeal and cannot be seen. From that same law there
[023] also35 comes the procreation and rearing of children. The jus gentium is common
[024] to men alone, as religion observed toward God, the duty of submission to parents
[025] and country, or the right to repel violence and injuria. For it is by virtue of this
[026] law that whatever a man does in defence of his own person he is held to do lawfully;
[027] since nature makes us all in a sense akin to one another it follows that for one to
[028] attack another is forbidden.36

What manumission is.

[030] 37Manumissions also come from the jus gentium. Manumission is the giving of
[031] liberty, that is, the revelation of liberty, according to some, for liberty, which
[032] proceeds from the law of

[001] nature, cannot be taken away by the jus gentium but only obscured by it,38 for
[002] natural rights are immutable. But say that he who manumits does properly give
[003] liberty, though he does not give his own but another's, for one may give what he
[004] does not have, as is apparent in the case of a creditor, who [may alienate a pledge
[005] though the thing is not his,39 and in that of one who] constitutes a usufruct in his
[006] property.40 For natural rights are said to be immutable because they cannot be
[007] abrogated or taken away completely, though they may be restricted or diminished
[008] in kind41 or in part. 42It was by virtue of this jus gentium that wars were introduced
[009] (that is, when declared43 by the prince for the defence of his country44 or to repel
[010] an attack) and nations separated, kingdoms established and rights of ownership
[011] distinguished. Individual ownership was not effected de novo by the jus gentium but
[012] existed of old, for in the Old Testament things were already mine and thine, theft
[013] was prohibited45 and it was decreed that one not retain his servant's wages.46 By
[014] the jus gentium boundaries were set to holdings, buildings erected next to one
[015] another, from which cities, boroughs and vills were formed.47 And generally, the
[016] jus gentium is the source of all contracts48 and of many other things. What long
[017] custom is will be explained below.49

The Law of Nations is derived from us being: creatures within Nature, sentient creatures within Nature, and wishing to safeguard ourselves through the use of our positive liberty while creating a means to govern ourselves as men, plural, via a common understanding of what it is we seek to have together.  The start of this is with marriage, as it is the wish to see one's offspring live to maturity and create an environment of safety for them.  To do that man and woman come together and create an understanding that they will not utilize many of their negative liberties on each other or their common offspring.  In this act of agreement within Nature, utilizing reason, the Nation is born as well as society, and the agreement to govern one-self is mutual and reciprocal.  Thus we put aside the use of some of our rights, those to use our negative liberties, to receive the benefits of society, self-government and create the unwritten Law of Nations.

From this we can draw the following:

• The basis for all government is self-government as it is the first form of government being mutual, agreeable and reciprocal in nature.
• Society is created by self-government, which is our creation by our Reason and affection for each other starting at marriage.
• To do these things is to follow an unwritten law, the jus gentium which is the Law of Nations.
• The Law of Nations is not a part of Nature, it is created by Natural beings via the use of Reason.
• The Law of Nations is required to understand Divine Revelation, but is not an artifact of Divine Revelation and an indirect artifact of Creation itself, as it is a pre-requisite to having beings who can utilize Reason.

It is not surprising in reading Purendorf, then, to come upon his first divisions amongst law, this taken from his preface on pg. 7:

I  It is evident that there are three sources of man's knowledge of his duty, of what he is to do in this life because it is right [honestum] and of what he is to omit because it is wrong [turpe]: the light of Reason, the civil laws and the particular revelation of the Divinity.  From the first flow the most common duties of man, particularly those which render him capable of society [sociabilis] with other men; from the second flow the duties of a man as a citizen living in a particular and defined state [civitas]; from the third, the duties of a Christian.

  Hence there are three distinct disciplines.  The first is the discipline of natural law, which is common to all nations; the second is the discipline of the civil law of individual states, which has, or may have, as many forms as there are states into which the human race is divided; the third discipline is called moral theology, and is distinct from the part of theology which explains the articles of our faith.

These are the same areas of law that Bracton examined, although they are now put through a post-Westphalian lens so that the areas of law are better defined and delineated.  By dividing the natural law from civil and moral law, their areas become not only understood but what they teach us as wholly different from each other.  The unwritten law gets a seat at the table, but it is not a nice seat as both moral law and civil law must recognize that they operate through the realm of natural law which has its own foundations set at Creation. 

The reason that this has to be explained is that no one knew, exactly, what Westphalia had done in the way of law, save that the civil law (and states) were now seen as a separate and temporal entity from moral law.  Moral law would apply to the temporal entity of the state via its citizens, and the state may use moral law for general guidance but only insofar as its people supported that.  This broke the problem of Nobles switching religions (either via conversion or via replacement in position) that caused so much havoc in the 30 Years War.  This was not the expected nor pre-destined outcome of the war, but a simple means to help keep one of the leading causes of it from recurring.

Religious freedom becomes an established civil right that is one that the state must be circumscribed from dictating to its people.  This is a natural right, gained through creation and our use of reason so as to create society via self-government.  Civil law, the law of states, is a temporal entity bound by being an artifact of society.  Thus the state comes from our ability to self-govern, which rests upon Reason, and coming from nature.  As each of these realms of law address different things, they are seen to be in separate domains, and Pufendorf looks as to why this is so:

II  Each of these disciplines has its own method for proving dogmas, corresponding to its principle.  In natural law a thing is affirmed as to be done because it is inferred by right reason to be essential to sociality [socialitas] among men.  The ultimate foundation of the precepts of civil law is that the legislator has imposed them.  The final reference point of the moral theologian is that God has so commanded in the Holy Scriptures.

This ordering is not by accident as it is a necessary following of the state of man.  We are first creatures of nature, but ones with unique capabilities that draw us together.  In our ability to utilize Reason we make society with our fellow man and through our self-government we realize that we must all abide by restraint of our natural law based gifts which requires legislation.  When we affirm ourselves and our society then the direction of our beings into the afterlife and what is necessary in this life to achieve the fruits of the afterlife then are given by moral law.  For once we have secured our society and ourselves there is some point to it which goes beyond our natural selves and that guidance cannot come from nature nor civil realms, but seek higher guidance in morality from Scriptures.

From this we can say that our relationship with God is direct for moral guidance in how we are to live our lives and be good Christians.  Society will reflect that, but its basis is in Nature, and thus we see the point of nature is for those who are molded in the form of the Creator to come together to form society with each other.  Restrictions upon us as individuals is done to protect society and our fellow man, and that is performed via the civil law, and just as we must protect ourselves from our negative natural liberties so we must affirm that in so doing our positive ones are not put in jeopardy by our creation.  We look to ourselves and God to find our positive natural liberties that are used to create a better society and the civil law is to reflect that understanding and support that it is we, as individuals making up society, that have the right to exercise our positive natural liberties on our behalf and on behalf of our fellow man. 

It is here that Westphalia establishes the positive natural liberty of choosing one's faith as belonging to the individual and not the State, so that the State is precluded from dictating one's religious beliefs to them.  From this single establishment the entire framework of what it means to utilize civil rights for one's own behalf separate from the State and the Church flows as this creates the moral underpinning for individual participation in more than maintaining society but in helping to uplift it via moral law learned as individuals.

Each of these law realms also comes with an exclusionary principle attached to it, and this is the underpinning for all that would follow from this era:

III  The discipline of civil law presupposes natural law as the more general discipline.  However if there is anything in civil law on which natural law is silent, it should not be thought for that reason that the latter contradicts the former.  Similarly, if anything is taught in moral theology on the basis of divine revelation beyond the scope of our reason and therefore unknown to natural law, it would be very ignorant to set these disciplines against each other or to imagine any contradiction between them.  And vice versa any positions which the discipline of natural law adopts as a result of investigation based on reason, are not on that account in any way opposed to the more explicit teaching of the Holy Scriptures on the same subject; it is merely that they are formulated by a process of abstraction [abstrahendo].  For example, in the discipline of natural law, we abstract from knowledge drawn from Holy Scripture and form a conception of the condition of the first man so far as reasoning alone can achieve it, however he may have been put into the world.  To set that into opposition to what the Divine Scriptures teach about that condition is the very essence of black malignity and is pure malice.

  It is in fact easy to show a harmonious relation between civil law and natural law but it seems to be a more arduous task to fix the boundaries between natural law and moral theology and to determine in what parts particularly they most differ.  I will give my opinion of this in a few words.  I do not of course speak with papal authority as if I had the privilege of being guaranteed free of error, nor as if I were inspired on the basis of dreams sent from God or by an irrational instinct relying on some extraordinary illumination.  I speak simply as one whose ambition it is to adorn, as his modest talents allow, the Sparta which is allotted to him.  I am prepared to welcome suggestions for improvement from intelligent and learned men, and am ready to review the positions I have taken, but by the same token I have no time at all for the critics who imitate Midas and rashly jump to conclusions about things that are not their business, or for those like the tribe of Arelioines whose character Phaedrus hits off so wittily: 'running around in circles', as he puts it, 'busy in idleness, sweating for nothing, always doing and never done, a torment to themselves and a great nuisance to everybody else.'

I need to get that second paragraph framed!

What is fascinating about the first paragraph is that it is echoed in mathematics in the 1920's and 1930's via Godel's incompleteness theorems about logic systems and their consistency concerning natural numbers:

The first incompleteness theorem states that no consistent system of axioms whose theorems can be listed by an "effective procedure" (essentially, a computer program) is capable of proving all facts about the natural numbers. For any such system, there will always be statements about the natural numbers that are true, but that are unprovable within the system. The second incompleteness theorem shows that if such a system is also capable of proving certain basic facts about the natural numbers, then one particular arithmetic truth the system cannot prove is the consistency of the system itself.

And paraphrased a bit later the second theorem turns into:

If an axiomatic system can be proven to be consistent from within itself, then it is inconsistent.

Thus the basis of natural law is Nature, herself.  You cannot prove Nature exists within natural law.  Similarly within moral law the basis of it is God.  You cannot prove God exists within moral law.  To do either of these things is to point out that the logic systems used are inconsistent and exist within yet another logic system, entirely, which has axioms that cannot be proven within the system (thus making both Nature and God definable and derivable within that larger system).  Just as the concepts of 'point' and 'line' are necessary to create geometry, the concept of 'Nature' and 'God' are necessary to have natural law and moral theology.  Further there are truths that exist outside of these systems that cannot be found via deduction or enumeration within them.

That is not to treat those systems as mathematical systems, mind you, but to demonstrate how a system can be consistent and incomplete within themselves so that they have independent reasoning types due to their differing basis.  When taken as axiomatic that Nature and God exist (and even having their own relationship via Creation), the law types utilized by both are bounded and incomplete for what is given in both.

This does not mean that these separate realms of law are not inter-related!  In fact each of them puts the point of relationship upon individuals:  your ability to self-govern, your ability to create society, your ability to create the State with your fellow man, your obedience to the moral law are all at that intersection.  How you act in accordance with Nature, God and Reason to create society and bring the civil law into existence via the Law of Nations rests totally upon you.

Not God.

Not Nature.

Not the State.

Not your fellow man.

That is what 'free will' is all about.

That is what the rest of the book examines, this thing called: Duty.

And guess who gets that?