Nicolaus Hemmingius on Justice and Law in the Commonwealth

The De lege naturae apodictica methodus (“Demonstrative  Method Concerning the Law of Nature”) by the Danish (Philippist) Lutheran scholar and theologian Nicolaus Hemmingius (Niels Hemmingsen) was first published in Latin in 1564.

In the excerpt below, from the dedicatory epistle to Erik Krabbe, Hemmingius lays out the connection between justice, law, and the health of the commonwealth [res publica], and the role the magistrate has to play in ordering law rightly. Without law–that is, true law, law that is in accord with justice, which is to say, with nature–a commonwealth cannot endure.

Hemmingius uses the analogy of the body to describe the body-politic; and the latter’s “justice” has certain sinews of its own. As he lists what these are, we see the utterly traditional claim that, in addition to laws concerning marriage, the family, and contracts, religion is part of justice (or the law of nature) as well, and is therefore of concern to the magistrate who is concerned with preserving justice (and with it, the commonwealth itself).

There is an old saying, most illustrious man, to which Plutarch bears witness, that without justice not even Jove can act as prince; by this saying it is certainly signified both that the office of the prince is especially difficult and that the power of justice is great, without which no commonwealth [respublica], no house, and, in short, no association can be preserved. For as law, which is the bond [vinculum] of human society, puts down in writing the measuring-rod of justice, so it belongs to the magistrate (whom the best philosophers call νομοφύλακα, that is, the guardian of the laws [legum custodem] to devote himself to this with all his powers, in order that he may hold the body of the commonwealth together by the bond of laws, that is, by justice. And indeed just as our bodies without the mind, so the body-politic [civitas] without law, the norm of justice, is not able to make use of its parts and sinews and blood and limbs, as Cicero says. For this reason, the framers of laws deservedly ought to be praised, as the most holy priests [mystae] and servants of justice, who, seeking the very sources of laws in nature, have wished to preserve the joining together of men with one another in a sound condition. For no association, unless it is just, will remain stable and in a sound condition for long, and therefore the laws (those that justly deserve this name) look to this, wish for this: that men unite together with one another by means of justice, in order that their association with one another may be holy and enduring.

There are, moreover, certain sinews, as it were, of this justice:¹ religion or divine worship, common nature, the ordering of superiors and inferiors, the natural family [cognatio], marriage, contracts, the various obligations that are part of human association, whereby it comes about that some have need of the service of others. The law itself, or the magistrate, who is, as it were, a living law, ought to establish, preserve, and guide these sinews and watch out lest, when these sinews have either been too much relaxed or entirely ruptured, the body of the commonwealth be weakened and gradually fall apart. For this reason, in fact, the magistrate is made overseer of the law as its guardian, so that, just as the soul is in the body, so he himself may be the director in the commonwealth of the “sinews” of its justice.²

1. Calvin uses a similar image in Institutes 4.20.14, and also refers to the magistrate as a “living  law,” as Hemmingius will do shortly: ” In states, the thing next in importance to the magistrates is laws, the strongest sinews of government, or, as Cicero calls them after Plato, the soul, without which, the office of the magistrate cannot exist; just as, on the other hand, laws have no vigour without the magistrate. Hence nothing could be said more truly than that the law is a dumb magistrate, the magistrate a living law.”
2. The translation is my own.