SAINT AUGUSTINE AND THOMAS HOBBES ON DOCTRINE OF LEX INJUSTA NON EST LEX
2nd Year &3rd Sem
Faculty in charge-
National Law University and Judicial Academy, Assam
5th November, 2018
TABLE OF CONTENTS
CHAPTERIZATION PAGE NUMBER
2. Doctrine of Lex injusta non est lex……………………………………3
3. St. Augustine on Lex injusta non est lex………………………..……4
4. Thomas Hobbes on Lex injusta non est lex…………………………..9
5. Comparison …………………………………………………………..10
The research paper will be dealing with the Doctrine of Lex injusta non est lex which was propounded by Saint Augustine who is considered as the first Christian philosopher. This paper will also throw light upon the ideas propounded by Augustine and Hobbes on natural law that is the doctrine of lex in justa in est lex.
2. DOCTRINE OF LEX INJUSTA NON EST LEX-
Lex injusta non est lex is a maxim.The maxim lex injusta non est lex means unjust law is not a law. It is a natural law approach which is introduced to understand law. It has originated from Saint Augustine and is also available in the works of Saint Thomas Aquinas. This principle states that a law will be exclaimed as a law if it is moral and if any law that is immoral will not be regarded as law. The area of law where morality has an influence on is the criminal law. There are certain things derived from the general principles of natural law by the way of conclusion for example one must not kill it can also be gained from this principle that no one should do harm to no man . The natural law theory is directly devoted to justice and if anyone tries to create a law which will be evil then it will fail to have an effect. People living in society can question it that what role does morality plays in law since the powerful people or individuals for example politics decide what the law should be, but law is made to maintain peace and security or social order at times when conflicts arises or exists between individuals or group. Legal norms are being expressed as higher norms and are compared to standards, higher laws which evolved or developed from the divine revelation for example religious text or human nature. This viewpoint is acquired that morals naturally exist in every human being. Morals have been defined as a set of rules that are to be followed by the individuals. Morality is also examined with beliefs which means that religion also plays an important role of influence. A set of variant morals would exit in different cultures if religion is influenced by morals. Morals vary from person to person or individual to individual because it is difficult to conceptualize something like morals to such a diverse world. The relationship of law and morality is essential because it identifies how people should behave. Morality is required for law but law is not required for morality and their relationship exists by chance but it should not exist. There is no clear dissection between the notion of law and the notion of morality and there are some laws that depend on the moral standards of humans.
Positive law has been derived from natural law, it maintains that law and morality are in two different spheres and that a law will only be valid when it has been established by a society in correspondence with the procedures identified by that society, hence humans make their own laws. The definitions provided by Aquinas and Cicero are very dated, their approach to analysis may not have been systematic and it is very difficult to define whether or not laws are valid. Bentham supported the idea of legal positivism, his belief was that law is an instrument of social change and has the function of affecting the future instead of always being retrospective. Legal positivists try and detach law from morality, the reasons for this is that they believe morals just confuse laws, hence making it even more difficult to give society justice.
3. ST.AUGUSTINE AND DOCTRINE OF LEX INJUSTA NON EST LEX-
Augustine is the propounder of secular ideas of natural law. He was the first who came up with the Christian theory of Natural Law. He was very familiar with the stoic philosophy and Ciecro mainly his writings. Augustine talked about lex temporalis which will be valid only if all of its qualities of eternal law are fulfilled by any legislation and then only it would be named as a law. Later, he talked about De Vera Religione and did not say that if any legislation fails to fulfill all the qualities of eternal law will be called as invalid but will be called as temporal legislator, who will be wise enough to learn eternal law and apply it at times where there be unchanging rules. In Augustine’s view these changes occurred due to transforming understanding of earthly existence of man. He describes man as a foreigner, whose real home lies somewhere else and he can only link it by hope. And should follow that no human institution can be an agency of perfection.
He then talked about the classical view of nature as a cosmos which includes human world, where he argued that creation of man introduced radical division in the universe . In order to understand Augustine’s view of law, firstly it is very essential to have a look on the radical division in the universe that is the human world. And in the human world there are acts of human will which is different from nature and God. Divine reason which orders the universe cannot continue with human reason. Men calls crime which is not a sin in the eyes of God here, Augustine says that if this wrongdoing remain unpunished on earth and consist sins because god is concerned with the inner state of human soul . God is being praised by humans and nothing is hidden from him. Human beings cannot control their destiny and salvation, As the pagan philosophers believed because perfection cannot be achieved on earth. Perfection can only be found in the society where angels and saints live and that is heaven. But, humans still try hard to achieve perfection by their efforts and the human condition is a tragedy.
The Christian recognizes that there is no bridge the chasm between his yearning for perfection and what he can do to achieve it. Augustine described this chasm as a dichotomy between two cities, the earthly and heavenly. He says that these cities are made up of two different loves firstly, the earthly love of self, even to the contempt of God and secondly, the heavenly by the love of God, even to the contempt of self.(footnote) He said that it is impossible to think of getting a membership in heavenly city only by observing the behavior of a person. No performances are being required for being a part of heavenly city. Their membership depends on the things they love.
And therefore, heavenly city cannot be shaped by law. Law can distribute and protect property but it 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 the reason no city can ensure membership in the heavenly city not even the Christian theocracy. The heavenly city finds its members in every nation and every state and mostly among diverse habits and customs. Augustine rejects both apocalyptic view, which is hostile to the civil order of Rome and Eusebian view. Christianity was being identified with the Roman Empire. Later, he emphasizes that we can make an exception that the citizens of both the cities live a common life with the people who are not similar to them and their city cannot be identified. Augustine denied the classical view. He says that the need for civil association is intrinsic to man’s rational nature. He attributes the divorce of the earthly from the heavenly city to man’s fall. He says that men have fallen because they make decision and things other than God the object of their love and they divert form their purposes. Their diversity brings them into conflict with one another. There is another reason for conflict as well where men impose their will on other where they are driven by a passion to dominate. And as a result, humans are always threatened by violence from their fellow beings and nothing is social by nature and antisocial by human race. And in order to live in peace and security from violence, men need a civil order. Civil order is the means of remedy to come out of the sinfulness instead of perfection. Civil order is a precarious remedy because it is a pure human arrangement that keeps chaos away. The understanding of civil order for Augustine made him impossible to accept the classical view of law. Moral life was identified with the civil order and for Augustine moral life is completely independent and personal of the civil order. Christian, Membership in a particular community will not be the sense of identity but one’s faith that the will of the world will be transformed when Christ will defeat sin and death. And this entire transformation depends on the will of God and if anyone supposes that the earthly project can bring the transformation then it displays a sinful pride. And if any one who can deny that our upcoming future will be the most blessed one when we
compare it with our present life which is most wretched whether it is filled with happiness and blessings. And if this life is used with a reference to other which is being loved by a man then he can be called as a blessed not in reality but in hope. But, the happiness of this life with actual possession and without hope is a false happiness and profound misery. The true blessings are not enjoyed. Because, every earthly project is considered irrelevant by the Christian to his ultimate allegiance he will be considered as alien to whatever community he belongs to and his interest is not with shaping that community to a specific pattern but with defending the area he is left with.
In the classical order there is a tension between polis as an educational enterprise and polis as an association significant by diversity which vanishes in Augustine’s idea of civil order. And civil order is not regarded as a natural organic unity and was specified by the word called societas. Societas, is an association or group which is initiated by an agreement among individuals where individuals have their own interests which are opposed by the universitas. Here, universitas is something which indicates an aggregate that has the unity of natural person and has a single end to it. This distinction gives law a new significance and Augustine’s assertion is that civil order has character of societas. Augustine then talks about the cosmic order in the classical view. Where, cosmic order is something which is completing secure and which leads a good life. Then, he talks about eternal law to which he describes as divine law or the will of the god. Augustine dreamed of establishing a set of laws which would be ideal and fitting for all times and places and which cannot be affected by any change which became a sin preferably than a noble aspiration. Augustine not at all concluded to believe that the most ultimate law of God almighty is the same every time and everywhere. And all those who believed in the words of the man who said certain things and said that all these things are said by god and started believing in it were considered as foolish.
Augustine then, argues that justice is various or diverse and changeable. Human beings live on earth for a specific period of time and gets familiar with the things around him. Their experiences cannot be connected to past incidents. In our day to day life there are certain things which are suitable. Similarly, laws that are suitable for one age cannot be there for another. Things which are right at one point of time cannot be the same for other times. And all these inclined to same end that is the earthly peace. Augustine then speaks about public concern and says that it is a section in which contradictory interests and stability of individuals coincide. Their concern is changeable. Augustine regarded the change in the law necessary to keep it just. The long Roman history which guided him to take its fact for granted and feel calm that changes can be made in the system of law. He then talks about the changeability of law and arbitrariness of its enforcement. In every judgement the truth is hidden. A mortal judge before taking any decision should know whether the accused is innocent or not. And if the innocent man, after suffering all kinds of torture in the end gets released, he had suffered torture or can even die after such tortures without confessing. Or he may confess in order to avoid torture without being guilty. Or may be put to death because of his confession. This is only because of the ignorance of the judge. Augustine says that in no way justice can be perverted by the operation of law and yet the learned judge does not examine these countless evils. He recognizes that what happens before God is that the he does not expect to harm and that he is pressurize to accept what harm he causes by his unavoidable ignorance and by his duty as a judge.
Augustine then talks about coercion, in his view it is integral and central to law. His predecessors took punishment with law as granted and regarded it as accidental attribute. This is only because of the legislator has the character of the interpreter of the cosmic reason for the education of the polis.
Augustine suggested that magistrates should fulfill their task or responsibility in the spirit of a kind father, he does not see the role of the civil ruler or legislator as comparable to that of the paterfamilias. He then invokes the picture where superior rules over inferior. When he talks about law he says that there is no connection between the human world and natural order.
Augustine provides with a simple view of law as Cicero does, but from a sight of opposite pole of the Greek tension between law as foundation of association and law as a moral education which is derived from the eternal verities. Cicero had escaped tension by declaring that the law has no justification other than its observance with reflection of eternal reason. And Augustine urges that law has no justification other than its contribution to the peacefulness of a human association. Augustine left definite issues unresolved.
4.THOMAS HOBBES ON DOCTRINE OF LEX IN JUSTA NON EST LEX-
Thomas Hobbes is considered as a believer or supporter of natural law. The theory of natural law of Hobbes is based on natural rights of self- preservation of person and property. Hobbes had used natural law to provide absolute authority of the ruler by giving me power to protect his subjects. Thus he completely condemned the religious and metaphysical character as natural law. The theory of Hobbes is based on social contract. He engaged himself in the civil war between King Charles-I and British Parliament and helped the King. And therefore, he shores up with absolute power and authority of the ruler. He also agreed with the ideal principles underlying natural law but did not present it as acceptance for its deficiency in the sanction which in the view of Hobbes was necessary to command obedience from people.
In social contract Hobbes says that man lives in a society which is chaotic and there is always tension of fear. In state of nature life was solitary, nasty, poor, short and brutish. Men entered into a contract in order to remain safe self- protection and avoid misery and pain, they gave up all their freedom to mightiest authorities who had powers to protect their lives and property. This lead the way to emergence of the institution of the ruler which had next assumed the form of the state. Hobbes was proponent of absolute power of the ruler and also to the subjects which had no rights in opposition to the sovereign who was to be ruled by unworthy or bad. And Church had no power over the sovereign. The theory of natural law was only assisted by Hobbes for absolute authority of the ruler. In “leviathan”, which is his popular work, which appeared in the year 1651. There he discovered that law is based on the sanction of the sovereign. And therefore, He repeated that civil law is the real law since it is prescribed by the sovereign.
According to Saint Augustine natural law is something which have propounded certain rights by the dignity of human nature commonly by God and can be followed through human reasons. He considered God who had all the powers to rule.
Augustine believed that humans are sinful and they cannot do anything to save our salvation and it depends on God’s grace. And, according to Thomas Hobbes’s theory of natural law which is based on individuals as rational beings and to live in a chaotic society we need a ruler with absolute authority who can protect and secure the individuals. Hobbes also argues that humans are selfish and they try to gain more and wealth for themselves.
It can be said that the natural law theory is old but today still it is fascinating. The function of law is to advocate or support equality and lay down an example for the society. Law has an authority, whereas morals don’t. The idea of natural law given by Augustine is still prevalent today. Recently it was used in a discussion American Civil Liberties Union. Hobbes defined law with a moral purpose.
https://reasonandmeaning.com visited on 12th October, 2018
Robert Robert P. Kraynak, THOMAS HOBBES: FROM CLASSICAL NATURAL LAW to MODERN NATURAL RIGHTS ,Colgate University also available at http://www.nlnrac.org/earlymodern/hobbes, visited on 13th October, 2018
Suryaratanapla, JURISPRUDENCE, Cambridge University Press, 2009
http://www.natural-law-and-conscience.org ,visited on 15th October, 2018