Posted by Jeffrey Thayne
Plato introduced an important tension in the history of the philosophy of law: Is law a human invention, designed by humans to meet some human need? Or is it a divine invention, discovered by humans and then applied and taught to society?
Aristotle tried to blend the two perspectives, by introducing a distinction between theoretical and practical reason. He said that law is a divine order in the sky which we discover by reason, but which we can apply to meet contingent human circumstances using practical reason. In contrast, Cicero completely rejected the idea that law is man-made and believed that law is a cosmic order intuitively known by all rational creatures. He said that true law cannot be created by legislatures, although legislatures may mimic true law.
The Effects of the Fall
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| Augustine. According to Augustine, civil laws are entirely human and without divine elements. |
Augustine, on the other hand, completely denied any divine component to civil law, and embraced the idea that law is a human invention. At first, he believed Cicero’s idea of law as an immutable cosmic order, merely encoded into human language by mortal legislatures; however, he later discarded that point of view. According to Letwin,
This change in Augustine’s view was due to a transformed understanding of man’s earthly existence, and in particular, of the consequences of man’s Fall. Instead of seeing mortal life as a stage in the perfection of man and regarding civil institutions as rungs on the ladder of ascent, he came to describe man on earth as a peregrinus, a foreigner, whose real home lies elsewhere, to which he is linked only by hope. And it followed that no human institution could be an agency of perfection.1
The Christian concept of a fall introduced a sharp distinction between the mortal and the divine. Augustine did not consider human reason to be “continuous with the Divine Reason that orders the universe,” (as Plato, Aristotle, and Cicero each did) because human rationality had been separated from God.1 He believed that no mortal person can claim indubitable access to the divine world.
Law Cannot Discern Motives
Augustine described a central dichotomy among human beings: the earthly city and the heavenly city. Any individual may be a member of one or the other. What separates those who are members of the earthly city from those who are members of the heavenly city is what they love in their hearts: “the earthly by the love of self, even to the contempt of God; the heavenly by the love of God, even to the contempt of self.â€1 Letwin explains, “It is impossible to discern membership in the heavenly city by observing how a person behaves. … Whether men are members of the heavenly city depends on what they love.” Because the desires of the heart are invisible to others, they are impossible to discern from outward actions. Augustine also made the point that wrongdoing does not consist in action, but in the motive behind action. To illustrate this, he described how God’s commandments may vary with place or time:
God, for certain temporal respects, commanded [some people] one thing, and [other people] another, obeying both the same righteousness: whereas they see, in one man, and one day, and one house, different things to be fit for different members, and a thing formerly lawful, after a certain time not so; in one corner permitted or commanded, but in another rightly forbidden and punished. Is justice therefore various or mutable? No, but the times, over which it presides, flow not evenly, because they are times.2
In other words, in one context it may be God’s will for a man to kill (consider Nephi and Laban), but not in another. Thus, a man may kill in one context because he loves and wants to serve God, and refuse to do so in another context. Other people, however, cannot see his heart and cannot know that his actions are out of love for God. They cannot judge his motivations. Consider, however, a man who refused to kill in the first context. His action was morally wrong, but no external observer would ever know it. Moral behavior consists in loving and serving God. Because God’s commandments may vary and change, and no person is privy to another person’s communications with God or the motivations of another person’s actions, no generalization may be developed to condemn moral or immoral behavior. Civil law, therefore, cannot be based in a universal moral framework. Letwin explains:
Civil arrangements can affect only outward actions. Law cannot therefore shape a heavenly city. While it can distribute and protect property, law cannot decide the spirit in which property is used. Law can punish the wrong done to others, but it cannot punish wrongful loving. That is why no city on earth, even if it is a Christian theocracy, can ensure membership in the heavenly city.1
Law Can Promote Order
For these reasons, Augustine believed that civil law could not establish a divine order on earth. Such cannot even be the intended purpose of civil law. Augustine thus believed that civil law was completely unrelated to the heavenly city and any of its goals. Its creation could only be intended to serve the needs of the earthly city. Letwin continues:
Because men have fallen, they make things other than God the object of their love and accordingly pursue divergent purposes. And this diversity brings them into conflict with one another. There is besides another reason for conflict: men seek to impose their will on others, for they are driven by a passion to dominate. As a result, human beings are always threatened by violence from those among whom they live, as nothing is so social by nature and so antisocial by corruption as the human race. And that is why, in order to live with any security from violence, men need a civil order. In short, instead of being a means to perfection, civil order is a remedy for sinfulness. It is, moreover, a highly precarious remedy because, being a purely human arrangement for keeping chaos at bay, the civil community is always in danger of disintegrating.1
Simply put, civil law’s sole purpose is to keep the peace. What does this do to the relationship between law and coercion? Consider a classroom environment; in a classroom, punishment is not the central means of education, and if it is necessary, it is only because of disruption that hinders education. Aristotle and Cicero saw law as a educative tool, a means by which a legislature can teach or inform the polis about the cosmic moral order. Thus, punishment and coercion were merely incidental to law, and there was thus only a weak connection between the two. Letwin describes the difference between this classical view and Augustine’s view:
The association of punishment with law had been taken for granted by Augustine’s predecessors, but was regarded as merely an accidental attribute. This was because in the classical picture, the legislator has the character of an interpreter of cosmic reason for the education of the polis. He is, at least in one of the classical views, a teacher, not a master, and his use of force is only a means of making his teaching more effective. But since Augustine repudiated the conception of a ruler or legislator as an intermediary between the terrestrial community and the heavenly kingdom, and instead regarded the object of the legislator as being to remedy the disorder of “this hell upon earth,†it is not surprising that he believes the legislator can achieve his ends only by repression, by dispensing punishment. Thus law ceases to be identified with reason as in the classical picture, and its association with force and punishment is of its essence.1
Governments are Effective, Not “Good”
Because coercion is inseparable from law, civil law is, in essence, an instrument of coercion, a tool for keeping violent, unruly, or deceitful people from disturbing the peace of society. Because nobody can see another person’s motivations, and can only punish external actions, law will always be defective, and judgments of court will always be, to some extent in error. That is alright, according to Augustine, because the purpose of civil law is not to sort out the wicked from the righteous and by doing so build the heavenly city (that is a task for God), only to preserve the peace of the earthly city. Peace on earth is worth the price of the injustice and the repression that results from civil law.
By creating civil law, the consequences of the fall may be mitigated. However, government force itself is not qualitatively different than the crime it punishes. Government, in this sense, is an inescapable but necessary evil. It keeps us from being killed by using force against those who would kill us. Human law is an “instrument of repression” (albeit it a necessary one), and is thus a product of the fall, just as much as it is necessitated by the fall.
Because the heavenly city and the earthly city are separated and inherently unrelated, there is no heavenly criteria by which we can judge earthly institutions. The only mark of a good government is whether it keeps the peace (for that is its purpose), even if it does so through unjust means. For this reason, Augustine does not say which form of government is best, for such a question is not relevant. “[The] heavenly city … while it sojourns on earth, calls citizens out of all nations,” he explained,
and gathers together a society of pilgrims of all languages, not scrupling about diversities in the manners, laws, and institutions whereby earthly peace is secured and maintained, but recognizing that, however various these are, they all tend to one and the same end of earthly peace. It therefore is so far from rescinding and abolishing these diversities, that it even preserves and adopts them, so long only as no hindrance to the worship of the one supreme and true God is thus introduced.3
Conclusion
In summary, Augustine believed that law is a human invention, designed and established to maintain peace and order among a society of various kinds of people pursuing various goals. Civil law has no claim to a connection with heavenly law, because the laws of God are related mainly to the motives of the heart, something that no earthly judge can detect. For this reason, Augustine is not concerned about better or worse laws, or better or worse forms of government (as long as they kept the peace and did not interfere with religious worship), because earthly governments are not at all related to the heavenly city and there can thus be no eternal criteria for civil law. Letwin presents a very simple summary:
In principle, then, Augustine offers at least as simple a view of law as Cicero does, but a view from the opposite pole of the Greek tension between law as a foundation of association and law as a moral education derived from eternal verities. Whereas Cicero had escaped that tension by arguing that the law has no justification other than its being in conformity with or a reflection of eternal reason, Augustine escapes the tension by arguing that the law has no justification other than its contribution to the peacefulness of a human association.1
Notes
1. Shirley Robin Letwin, On the History of the Idea of Law, (Cambridge: Camrbidge University Press, 2005).
2. Augustine, Confessions.
3. Augustine, City of God.