(LifeSiteNews) — This is the fourth part of a series on the nature of true freedom, drawing especially on the teaching of Pope Leo XIII in his encyclical letter “On Human Liberty.”
The first part discussed man’s natural liberty to choose how he will act. The second part treated of the moral liberty by which man freely acts in accordance with his own nature. The third part explored the ways in which God assists us with his grace, so that we might attain moral liberty.
In this fourth instalment, we discuss how laws made by the state assist man to attain true liberty.
Human law
Man, by observing the natural law written on his heart, and by cooperating with divine grace, can attain moral liberty.
However, in our fallen state, our capacity to act in accordance with what is right and just, and thus to attain our natural and supernatural ends, is inhibited by (i) our own darkness of intellect and weakness of will and (ii) the ignorance and malice of our fellow human beings.
For this reason, there must be a human law. This law, by punishing wrongdoing, deters us from doing wrong, and deters our neighbor also. The end of human law is the common good of the society which it regulates.
Leo XIII teaches:
[W]hat reason and the natural law do for individuals, that human law, promulgated for their good, does for the citizens of States. Of the laws enacted by men, some are concerned with what is good or bad by its very nature; and they command men to follow after what is right and to shun what is wrong, adding at the same time a suitable sanction.[1]
By human law, the legitimate authorities of a state can punish their subjects for wrongdoing.
From this a question arises: by what authority does one human being, or group of human beings, make laws that can be imposed on another person with a sanction of punishment? Ought not man to be subject only to God, the author of the natural law and the divine law?
The solution to this difficulty lies in the fact that true human law derives its binding force from the natural law and thus from the eternal law of God. When a man obeys the just laws of the state, he is primarily obeying God, not man. And when the state punishes, it is using the authority given to it by God. Hence St. Paul taught:
Let every soul be subject to higher powers: for there is no power but from God: and those that are, are ordained of God. Therefore he that resisteth the power, resisteth the ordinance of God. And they that resist, purchase to themselves damnation. For princes are not a terror to the good work, but to the evil. Wilt thou then not be afraid of the power? Do that which is good: and thou shalt have praise from the same. For he is God’s minister to thee, for good. But if thou do that which is evil, fear: for he beareth not the sword in vain. For he is God’s minister: an avenger to execute wrath upon him that doth evil. Wherefore be subject of necessity, not only for wrath, but also for conscience’ sake. For therefore also you pay tribute. For they are the ministers of God, serving unto this purpose. (Rm 13:1-6)
And as the Vicar of Christ teaches:
[S]uch laws by no means derive their origin from civil society, because, just as civil society did not create human nature, so neither can it be said to be the author of the good which befits human nature, or of the evil which is contrary to it.
Laws come before men live together in society, and have their origin in the natural, and consequently in the eternal, law.
The precepts, therefore, of the natural law, contained bodily in the laws of men, have not merely the force of human law, but they possess that higher and more august sanction which belongs to the law of nature and the eternal law.[2]
Human laws derive from the natural law and assist us in following that law. For example, murder is prohibited by the natural law, and thus every man is bound by his conscience not to commit murder. Human laws against murder, which threaten murderers with punishment, help to deter murderers and protect innocents from this violation of the natural law. As the pope says:
[T]he duty of the civil legislator is, mainly, to keep the community in obedience by the adoption of a common discipline and by putting restraint upon refractory and viciously inclined men, so that, deterred from evil, they may turn to what is good, or at any rate may avoid causing trouble and disturbance to the State.[3]
Sometimes human laws follow more remotely from the natural law and are made to “decide many points which the law of nature treats only in a general and indefinite way.”[4] For instance:
[T]hough nature commands all to contribute to the public peace and prosperity, whatever belongs to the manner, and circumstances, and conditions under which such service is to be rendered must be determined by the wisdom of men and not by nature herself. It is in the constitution of these particular rules of life, suggested by reason and prudence, and put forth by competent authority, that human law, properly so called, consists, binding all citizens to work together for the attainment of the common end proposed to the community, and forbidding them to depart from this end, and, in so far as human law is in conformity with the dictates of nature, leading to what is good, and deterring from evil.[5]
For example, the natural law directs that we ought not to unnecessarily endanger the lives of others, but it is left to the human law to regulate food safety, road safety, workplace safety, and a myriad of other related areas.
These human laws – if just and proportionate – help us to observe the natural law and thus to live more freely.
It will often be the case that something is forbidden or prescribed by human law, which is not specifically forbidden or prescribed by the natural law. For example, observing a particular speed limit, paying taxes at a certain rate, or performing compulsory military service. These things might seem to be unjust limitations on our natural freedom to choose how we act, a freedom proper to rational beings.
Fr E. Cahill S.J. wrote:
Seeing that man’s end and purpose in life concern only himself and his Creator, and that in personal dignity all men are equal, there is no reason in the nature of things why one man should have a right to interfere with another’s freedom of action.
Hence, everyone has a natural right to order his life in his own way, as long as he observes God’s law and does not violate the rights of others.[6]
However, he continues:
[T]he exercise of this freedom may be limited, when the public good requires; although such limits cannot apply to the exercise of such rights as are perfect or inalienable.[7]
He further explains:
The reason why, in some cases, the public need may override natural rights is not far to seek. The rights or needs of society are founded on the rights of individuals that compose it; and when one man’s right of freedom clashes with the collective rights of other members of the community, it is reasonable that the stronger and more urgent claim should prevail.
Hence, although no social needs can be strong enough to rob the individual of such rights as his right to his own life (which is indefeasible as long as he is innocent of crime)… there are some other natural rights to which limitations may legitimately be set.[8]
The observance of just human laws is not an infringement on our liberty, but rather an aid to securing it. For, as Leo XIII taught:
[T]he true liberty of human society does not consist in every man doing what he pleases, for this would simply end in turmoil and confusion, and bring on the overthrow of the State; but rather in this, that through the injunctions of the civil law all may more easily conform to the prescriptions of the eternal law.
Likewise, the liberty of those who are in authority does not consist in the power to lay unreasonable and capricious commands upon their subjects, which would equally be criminal and would lead to the ruin of the commonwealth; but the binding force of human laws is in this, that they are to be regarded as applications of the eternal law, and incapable of sanctioning anything which is not contained in the eternal law, as in the principle of all law.[9]
Just laws
Human law is ordered towards observance of the natural law, and thus serves man’s freedom. This, of course, implies that the laws are just. For unjust human laws are, in fact, not laws at all.
A true law, according to the definition of law given by St. Thomas, is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”[10]
Let’s look at each part of that definition in more detail.
Law as an ordinance of reason
“Law,” states St. Thomas, “is a rule and measure of acts, whereby man is induced to act or is restrained from acting,” consequently “it belongs to the law to command and to forbid.”[11]
We have already seen in part one of this series that all human acts must be in accord with reason.[12] Therefore laws, which induce man to act or restrain him from acting, must also be in accordance with reason.[13]
If a purported human law should not be in accordance with reason, it would not have the nature of law, as St. Thomas says:
[I]n order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason.[14]
Furthermore, as stated above, human law is derived from the natural law, “consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”[15]
A law is ordained to the common good
Laws are always directed to the common good of the community for which they are ordained. And the primary end of every law must be the end of human life itself, namely happiness; “the law must needs regard principally the relationship to happiness.”[16] Those civil laws called “just” are those “which are adapted to produce and preserve happiness and its parts for the body politic.”[17]
It follows from this that any command which does not have the common good as its end, does not have the nature of law:
Consequently, since the law is chiefly ordained to the common good, any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good.[18]
A law is made by legitimate authority
Laws are directed to the common good. Therefore, only the community as a whole, or those with legitimate authority over the whole community, can make laws.
St. Thomas teaches:
Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.[19]
If a private person – i.e. someone who does not have legitimate authority – tries to make or enforce a law this is null and void.[20]
The force of laws passed by legitimate authority is diminished – and perhaps made entirely null – if the laws they pass are contrary to the universal custom of a people:
[T]o a certain extent, the mere change of law is of itself prejudicial to the common good: because custom avails much for the observance of laws, seeing that what is done contrary to general custom, even in slight matters, is looked upon as grave. Consequently, when a law is changed, the binding power of the law is diminished, in so far as custom is abolished.
Wherefore human law should never be changed, unless, in some way or other, the common weal be compensated according to the extent of the harm done in this respect.
Such compensation may arise either from some very great and very evident benefit conferred by the new enactment; or from the extreme urgency of the case, due to the fact that either the existing law is clearly unjust, or its observance extremely harmful. Wherefore the jurist says that ‘in establishing new laws, there should be evidence of the benefit to be derived, before departing from a law which has long been considered just.’
Indeed, custom itself can have force of law:
Augustine says ‘The customs of God’s people and the institutions of our ancestors are to be considered as laws. And those who throw contempt on the customs of the Church ought to be punished as those who disobey the law of God.’[21]
Furthermore, if a people are:
[F]ree, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, than does the authority of the sovereign, who has not the power to frame laws, except as representing the people.[22]
In most stable societies, custom has been an important source of law, as it is in the English Common Law system, which is used in most of the English-speaking world.
A law is duly promulgated
Laws by their nature are made for the good of a particular community. Therefore, they must be duly applied to that community to have the nature of law.
St. Thomas states:
Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force.[23]
The manner of promulgation will differ from society to society. In most stable societies, there is an established manner of promulgation, by which everyone knows what the law is.
Do we have to obey an unjust law?
It should be clear from the sections above that when we speak of the binding character of human law, we only are speaking about just laws, because unjust laws are not laws at all.
In general, we are bound obey true laws. St. Thomas teaches:
If they be just, they have the power of binding in conscience, from the eternal law whence they are derived, according to Proverbs 8:15: ‘By Me kings reign, and lawgivers decree just things.’[24]
There will of course be certain circumstances in which even true laws are not binding, for example, laws cease to bind if their application becomes harmful:
Now it happens often that the observance of some point of law conduces to the common weal in the majority of instances, and yet, in some cases, is very hurtful. Since then the lawgiver cannot have in view every single case, he shapes the law according to what happens most frequently, by directing his attention to the common good. Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed.[25]
But what of purported laws that do not fulfil the definition of true law described above?
St. Thomas separates these into two categories.
- “Laws” that are contrary to the “divine law,” such as a law which commands something sinful.”[26]
- “Laws” that are contrary to a “human good,” but which do not command something intrinsically evil.
Laws which command something intrinsically evil, teaches St. Thomas, must “nowise be observed, because, as stated in Acts 5:29, ‘we ought to obey God rather than man.’”[27]
Laws which are contrary to a human good, but not intrinsically evil, are also unjust and “a law that is not just, seems to be no law at all.” These laws are in fact “acts of violence rather than laws.” Consequently, “such laws do not bind in conscience,” except perhaps in certain individual circumstances, “in order to avoid scandal or disturbance.”[28]
As Pope Leo XIII taught:
St. Augustine most wisely says: ‘I think that you can see, at the same time, that there is nothing just and lawful in that temporal law, unless what men have gathered from this eternal law.’ If, then, by anyone in authority, something be sanctioned out of conformity with the principles of right reason, and consequently hurtful to the commonwealth, such an enactment can have no binding force of law, as being no rule of justice, but certain to lead men away from that good which is the very end of civil society.[29]
And the justice of laws is a result of their derivation from the eternal law of God:
Therefore, the nature of human liberty, however it be considered, whether in individuals or in society, whether in those who command or in those who obey, supposes the necessity of obedience to some supreme and eternal law, which is no other than the authority of God, commanding good and forbidding evil. And, so far from this most just authority of God over men diminishing, or even destroying their liberty, it protects and perfects it, for the real perfection of all creatures is found in the prosecution and attainment of their respective ends; but the supreme end to which human liberty must aspire is God.[30]
Conclusion
We have seen in this article that it is necessary for both the good of the individual and of society, that there should be human laws. Obedience to these laws is an aid in achieving moral liberty, and protects us from having our freedom of action unduly inhibited by the ignorance and malice of our neighbor. If the state should attempt to impose unjust laws, these have no binding force.
In the next instalments of this series, we will look at some the greatest threats to liberty in the modern world, as identified by Pope Leo XIII, beginning with the error of liberalism.