The Elements of Law/Part II/Chapter 29
Chapter 29: Of the Nature and Kinds of Laws
1. Thus far concerning the Nature of Man, and the constitution and properties of a Body Politic. There remaineth only for the last chapter, to speak of the nature and sorts of law. And first it is manifest, that all laws are declarations of the mind, concerning some action future to be done, or omitted. And all declarations and expressions of the mind concerning future actions and omissions, are either promissive, as I will do, or not do; or provisive, as for example, If this be done or not done, this will follow; or imperative, as Do this, or do it not. In the first sort of these expressions, consisteth the nature of a covenant; in the second, consisteth counsel; in the third, command.
2. It is evident, when a man doth, or forbeareth to do any action, if he be moved thereto by this only consideration, that the same is good or evil in itself; and that there be no reason why the will or pleasure of another should be of any weight in his deliberation, that then neither to do nor omit the action deliberated, is any breach of law. And consequently, whatsoever is a law to a man, respecteth the will of another, and the declaration thereof. But a covenant is the declaration of a man's own will. And therefore a law and a covenant differ; and though they be both obligatory, and a law obligeth no otherwise than by virtue of some covenant made by him who is subject thereunto, yet they oblige by several sorts of promises. For a covenant obligeth by promise of an action, or omission, especially named and limited; but a law bindeth by a promise of obedience in general, whereby the action to be done, or left undone, is referred to the determination of him, to whom the covenant is made. So that the difference between a covenant and a law, standeth thus: in simple covenants the action to be done, or not done, is first limited and made known, and then followeth the promise to do or not do; but in a law, the obligation to do or not to do, precedeth, and the declaration what is to be done, or not done, followeth after.
3. And from this may be deduced, that which to some may seem a paradox: that the command of him, whose command is a law in one thing, is a law in every thing. For seeing a man is obliged to obedience before what he is to do be known, he is obliged to obey in general, that is to say, in every thing.
4. That the counsel of a man is no law to him that is counselled, and that he who alloweth another to give him counsel, doth not thereby oblige himself to follow the same, is manifest enough; and yet men usually call counselling by the name of governing; not that they are not able to distinguish between them, but because they envy many times those men that are called to counsel, and are therefore angry with them that are counselled. But if to counsellors there should be given a right to have their counsel followed, then are they no more counsellors, but masters of them whom they counsel; and their counsels no more counsels, but laws. For the difference between a law and a counsel being no more but this, that in counsel the expression is, Do, because it is best; in a law, Do, because I have right to compel you; or Do, because I say, do: when counsel which should give the reason of the action it adviseth to, becometh the reason thereof itself, it is no more counsel, but a law.
5. The names lex, and jus, that is to say, law and right, are often confounded; and yet scarce are there any two words of more contrary signification. For right is that liberty which law leaveth us; and laws those restraints by which we agree mutually to abridge one another's liberty. Law and right therefore are no less different than restraint and liberty, which are contrary; and whatsoever a man doth that liveth in a commonwealth, jure, he doth it jure civili, jure naturae, and jure divino. For whatsoever is against any of these laws, cannot be said to be jure. For the civil law cannot make that to be done jure, which is against the law divine, or of nature. And therefore whatsoever any subject doth, if it be not contrary to the civil law, and whatsoever a sovereign doth, if it be not against the law of nature, he doth it jure divino, by divine right. But to say, lege divina, by divine law, is another thing. For the laws of God and nature allowing greater liberty than is allowed by the law civil (for subordinate laws do still bind more than the superior laws, the essence of law being not to loose, but to bind): a man may be commanded that by a law civil, which is not commanded by the law of nature, nor by the law divine. So that of things done lege, that is to say, by command of the law, there is some place for a distinction between lege divina and lege civili. As when a man giveth an alms, or helpeth him that is in need, he doth it not lege civili, but lege divina, by the divine law, the precept whereof is charity. But of things that are done jure, nothing can be said done jure divino, that is not also jure civili, unless it be done by them that having sovereign power, are not subject to the civil law.
6. The differences of laws are according to the differences, either of the authors and lawmakers, or of the promulgation, or of those that are subject to them. From the difference of the authors, or lawmakers, cometh the division of law into divine, natural, and civil. From the difference of promulgation, proceedeth the division of laws into written and unwritten. And from the difference of the persons to whom the law appertaineth, it proceedeth, that some laws are called simply laws, and some penal. As for example: thou shalt not steal, is simply a law; but this: he that stealeth an ox, shall restore four-fold, is a penal, or as others call it, a judicial law. Now in those laws, which are simply laws, the commandment is addressed to every man; but in penal laws the commandment is addressed to the magistrate, who is only guilty of the breach of it, when the penalties ordained are not inflicted; to the rest appertaineth nothing, but to take notice of their danger.
7. As for the first division of law into divine, natural, and civil, the first two branches are one and the same law. For the law of nature, which is also the moral law, is the law of the author of nature, God Almighty; and the law of God, taught by our Saviour Christ, is the moral law. For the sum of God's law is: Thou shalt love God above all, and thy neighbour as thyself; and the same is the sum of the law of nature, as hath been showed, Part I chap. XVIII. And although the doctrine of our Saviour be of three parts moral, theological, and ecclesiastical; the former part only, which is the moral, is of the nature of a law universal; the latter part is a branch of the law civil; and the theological which containeth those articles concerning the divinity and kingdom of our Saviour, without which there is no salvation, is not delivered in the nature of laws, but of counsel and direction, how to avoid the punishment, which by the violation of the moral law, men are subject to. For it is not infidelity that condemneth (though it be faith that saveth), but the breach of the law and commandments of God, written first in man's heart, and afterwards in tables, and delivered to the Jews by the hands of Moses.
8. In the state of nature, where every man is his own judge, and differeth from other concerning the names and appellations of things, and from those differences arise quarrels, and breach of peace; it was necessary there should be a common measure of all things that might fall in controversy; as for example: of what is to be called right, what good, what virtue, what much, what little, what meum and tuum, what a pound, what a quart, &c. For in these things private judgments may differ, and beget controversy. This common measure, some say, is right reason: with whom I should consent, if there were any such thing to be found or known in rerum natura. But commonly they that call for right reason to decide any controversy, do mean their own. But this is certain, seeing right reason is not existent, the reason of some man, or men, must supply the place thereof; and that man, or men, is he or they, that have the sovereign power, as hath been already proved; and consequently the civil laws are to all subjects the measures of their actions, whereby to determine, whether they be right or wrong, profitable or unprofitable, virtuous or vicious; and by them the use and definition of all names not agreed upon, and tending to controversy, shall be established. As for example, upon the occasion of some strange and deformed birth, it shall not be decided by Aristotle, or the philosophers, whether the same be a man or no, but by the laws. The civil law containeth in it the ecclesiastical, as a part thereof, proceeding from the power of ecclesiastical government, given by our Saviour to all Christian sovereigns, as his immediate vicars, as hath been said Part II. chap. XXVI, sect. 10.
9. But seeing it hath been said, that all laws are either natural or civil; it may be demanded, to which of these shall be referred that law, which is called martial law, and by the Romans disciplina militaris? And it may seem to be the same with the law of nature; because the laws by which a multitude of soldiers are governed in an army, are not consent, but continually changing with the occasion; and that is still a law, which is reason for the present, and reason is the law of nature. It is nevertheless true that martial law is, civil law. because an army is a body politic, the whole power whereof is in the General, and the laws thereof made by him; and though they still follow and change as reason requireth, yet it is not, as the reason of every private man (as in the law of nature), but as the reason of the General requireth.
10. When he, or they, in whom is the sovereign power of a commonwealth, are to ordain laws for the government and good order of the people, it is not possible they should comprehend all cases of controversy that may fall out, nor perhaps any considerable diversity of them; but as time shall instruct them by the rising of new occasions, so are also laws from time to time to be ordained: and in such cases where no special law is made, the law of nature keepeth its place, and the magistrates ought to give sentence according thereunto, that is to say, according to natural reason. The constitutions therefore of the sovereign power, by which the liberty of nature is abridged, are written, because there is no other way to take notice of them; whereas the laws of nature are supposed to be written in men's hearts. Written laws therefore are the constitutions of a commonwealth expressed; and unwritten, are the laws of natural reason. Custom of itself maketh no law. Nevertheless when a sentence hath been once given, by them that judge by their natural reason; whether the same be right or wrong, it may attain to the vigour of a law; not because the like sentence hath of custom been given in the like case; but because the sovereign power is supposed tacitly to have approved such sentence for right; and thereby it cometh to be a law, and numbered amongst the written laws of the commonwealth. For if custom were sufficient to introduce a law, then it would be in the power of every one that is deputed to hear a cause, to make his errors laws. In like manner, those laws that go under the title of responsa prudentum, that is to say, the opinions of lawyers, are not therefore laws, because responsa prudentum, but because they are admitted by the sovereign. And from this may be collected, that when there is a case of private contract between the sovereign and the subject, a precedent against reason shall not prejudice the cause of the sovereign; no precedent being made a law, but upon supposition that the same was reasonable from the beginning.
And thus much concerning the Elements and general grounds of Laws Natural and Politic. As for the law of nations, it is the same with the law of nature. For that which is the law of nature between man and man, before the constitution of commonwealth, is the law of nations between sovereign and sovereign, after.