Obedience and Unjust Laws

It is a commonplace of the classical and Christian traditions of natural law that unjust laws do not have the force of law and therefore do not compel obedience from subjects, and perhaps at the present time this old locus communis is worth revisiting. When philosophers and theologians make statements like the one I just made, they do not mean that only laws violating specially revealed divine law do not compel obedience; they also mean that laws violating nature do not compel obedience, because the law of nature is divine law, and whatever conflicts with it should therefore not be done.

I plan to gather together several citations that demonstrate just how common the foregoing perspective is–common, that is, to Christians irrespective of chronology and confession, and common to Christians and non-Christians as well.

We could start anywhere, really, but I’m going to start with Niels Hemmingsen, because that’s what I do. The following excerpt is from his dedicatory epistle to Lord Erik Krabbe at the beginning of the De lege naturae apodictica methodus. I’ve cited part of this on TCI before, where I said:

Hemmingsen, drawing on Plato’s Socrates, says it is not so. “Law” is not just any rule that happens to be made by the stronger. If this were the case, there could be no objective standard for justice; all would hang on someone else’s Wille zur Macht; he would dominate the rest; justice and law would be the will of the stronger. The alternative is to hold that there is a higher standard than power. Justice actually exists; man did not make it, and his man-made laws must conform to it.To truly deserve the name, then, laws must be in accordance with the truth of things as they actually are. The responsible legislator is a “discoverer of the truth.”

I then quoted Hemmingsen as follows:¹

[Plato’s Socrates] affirms that just things are just, honorable things are honorable; and, on the other hand, that unjust things are unjust, and shameful things are shameful–and that this [holds] everywhere and among all people; and he defines law as being, not the opinion of men, but τοῦ ὄντος εὕρησιν, that is, the discovery of the truth. For the name of law is rightly given only to that law which has not only the authority of princes and magistrates, but also (and this is much more important) relies on reason [ratio] firm and unmoved.

This reason ought not to be sought from anywhere else than from two [sources], namely, from nature itself, and from the end [fine] of the law. In nature itself are certain seeds of the just and the honorable, besides the faculty of judgment, by which just and honorable things may be preferred to unjust and shameful ones. From these seeds arise laws that are intended for the soundness of the commonwealth (a soundness that does not deviate from its ultimate end) to which all things are properly referred. Whatever laws have been erected in this way, these alone deserve to be called “laws,” and not just any decrees whatever of tyrants or prescriptions of the powerful.

Hemmingsen then goes on to use the example of bigamy, which was something of a hot-button social issue in the sixteenth century. Not only is a citizen not compelled to assent to and obey a decree concerning a practice that Hemmingsen believes to violate the law of nature; he is compelled not to assent and obey, and he cannot excuse obedience to it by saying, “Well, it’s the law of the land; the ruler said so.” For there is a higher authority than the prince: “the law of nature, which is also the law of God.”

A certain ruler [imperator] passed a law, by which he ordained that it was licit for one husband to have two wives at the same time. Many men were embracing this law, little worried about whether the law that was passed was in accordance with just reason; but, because this law does not remain within just limits, that is, it does not proceed from nature and tend to the soundness of the commonwealth (a soundness that does not deviate from its ultimate end) in no way ought it to be considered worthy of the name of “law,” but rather should be called the filth of foulest lust. Nor indeed did that ruler pass this law for any other reason than to conceal his own lust with the pretext of law. Whoever, therefore, has obeyed that foul decree is not excused by the authority of the ruler, but is condemned by the law of nature, which is also the law of God. For they, ungrateful, have both departed from nature and scorned God, the maker of nature.

Therefore one must look carefully to the reason [ratio], which I have spoken of, in any law whatsoever. When a law passed by a lawful magistrate is in accordance with this reason, whatever is in keeping with the law that has been passed will be reckoned just; on the other hand, that which is undertaken against the law will be reckoned unjust; nor ought one to judge a thing just or unjust by opinion, but by nature and the truth.

Note well what is necessary for a law (in name) to qualify as a law (in fact), one initiatory or principial, as it were, and the other final or teleological: the law’s accordance with “just reason” and its remaining within “just limits” (intra iustas metas). These “just limits” are further specified as “procession from nature” and “tendency toward the soundness of the commonwealth”–that is, the law proceeds from the way the world actually is and works toward the proximate end of the common good, which, in turn, must be harmonious with the commonwealth’s ultimate finis: for Hemmingsen, God himself.

1. I omit the introductory sentence to the paragraph here.