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desires and divine reason. Our desires, he says, are masters over our
thoughts, and, as they are forever active and can never be fully satisfied,
they urge those inflamed by desire to every sort of crime. Therefore the
ruler who uses the authority of magistrates and the penalties imposed by
law to subdue men™s desires is superior to the philosopher who enunciates
the principles of ruling but rarely persuades even the few to heed his
admonitions. In this connection, Cicero suggests “ what is wholly absent
from his discussion of the identity between law and justice “ that coercion
to enforce legal provisions is intrinsic to the idea of law.
Cicero moves even further away from the view of law as a nonhuman
pattern given to man when he describes the goal of the leaders in a
commonwealth as a “leisured dignity,” which is what all good and pros-
perous men desire. This goal requires the maintenance of public worship,
the powers of the magistrates and the authority of the Senate, along with
the body of the law, ancestral custom, the courts, and the action of judges.
The director of the commonwealth should aim to secure for his fellow
citizens happiness fortified by such earthly goods as wealth, material
resources, glory and honor. In De Officiis, where he is arguing against
the confiscation or redistribution of wealth, Cicero declares that security
of property is “the chief purpose in the establishment of constitutional
state and municipal governments,” and that “although it was by nature™s
guidance that men were drawn together into communities, it was in the
hope of safeguarding their possessions that they sought the protection of
cities.”24 Here he says, too, echoing Solon, that statesmen truly concerned
to preserve the commonwealth will “above all . . . use their best endeavors
that everyone shall be protected in the possession of his own property by
the fair administration of the law and the courts, that the poorer classes
shall not be oppressed because of their helplessness, and that envy shall
not stand in the way of the rich, to prevent them from keeping or
recovering possession of what justly belongs to them.”25
Cicero thus dissociated law into two disparate ideas. One identifies law
with a nonhuman pattern that he described indifferently as reason,
nature, or justice, and which he took to exclude all contingency and
uncertainty. The other idea of law identifies it with a fallible human
contrivance for maintaining order, subject to all the defects of mortal
arrangements. Cicero neither attempted to reconcile these two concep-
tions of law nor felt any need to do so because he avoided noticing any
conflict between them by treating law as a synonym for justice. He moved
from one conception of law to the other without recognizing that he was

24 25
De Officiis II, 73. Ibid., II, 85.
54 Law anchored to a cosmic order

identifying law both with indisputable eternal verities manifest to all
human beings and with a changeable, disputable, and fallible mortal
arrangement. The delicate balance maintained in the Greek discussion
between two conflicting elements in the idea of law was broken by Cicero.

***
The ancient discussion makes it clear that the idea of law comprehends
two conflicting ideas, of change and fixity, because the idea of law is an
answer to the fundamental difficulty of the human condition: how to
bring some fixity into a world from which change and multiplicity cannot
be eradicated. Plato and Aristotle are notable for their self-conscious
recognition that there is an unavoidable conflict between the mutable
reality of the human world and the fixity imposed by law. They attempt
to explain how the law could comprehend both a changing and an
unchanging element. But they never confound the unchanging element,
which they identified with the eternal pattern given by nature, with the
whole of law. Instead, they distinguish two different aspects of law: what
it actually commands or prohibits, and how far it satisfies the require-
ments of justice. In other words, they distinguish between the justice and
the substance of law. Indeed, they go so far as to maintain that a degree of
injustice is inseparable from subjection to law that, they nevertheless
insist, is the essence of a civilized life. Even though this distinction gave
rise to a serious ambiguity in their view of law, they never wholly lost sight
of it.
Thanks to the two meanings that they attributed to justice, they did,
however, bequeath to their successors an ambiguous idea of law. In one
sense of justice, law has the following features: First, law constitutes the
unity of a particular kind of association, which is distinguished from a
tribe or family by the fact that its members can choose to join or leave it
and are not necessarily associated by anything other than their subscrip-
tion to common rules. Second, rules of law are noninstrumental, that is to
say, they are not designed to promote any particular enterprise, neither
the satisfaction of any interests nor the securing of any particular sub-
stantive results. This means that the purpose of law is to maintain condi-
tions that enable people who do and believe different things to live and
work together in peace. Third, the moral quality of justice is intrinsic to
law because the rule of law is the condition for a civilized life in which the
rational nature of human beings receives the respect and support due to it.
Fourth, the obligation to obey the law is independent of its substantive
content or outcome because it rests on an agreement to subscribe to the
law. This agreement is implicitly made by anyone who continues to enjoy
the life within an association made possible by the rule of law. Fifth, the
Cicero 55
justice of the substantive content of law is necessarily uncertain because
the making and interpretation of law is an exercise of practical rather than
theoretical reason. Human beings have access to indisputable knowledge
only of eternal truths; and there is no indisputable way of moving from
those truths to practical decisions about what it is right to do at a
particular time and place because such decisions concern things that can
be other than they are and are therefore necessarily disputable.
But a quite different meaning of justice, indeed what is usually taken to
be the ancient idea of justice, appears in those contexts where Plato,
Aristotle, and Cicero describe the law as a set of rules designed to produce
and maintain the kind of discipline needed to fashion virtuous citizens.
Here justice consists in the maintenance of a particular pattern of life.
And the law is seen as an instrument for achieving the aims of an educa-
tional enterprise. In Aristotle™s discussion the tension between the two
different ideas of law associated with the two meanings of justice is
mitigated by the importance that he attaches to the distinction between
theoretical and practical knowledge. For the legislator™s obligation to
adapt the law to particular contingent circumstances may blur the con-
flicts between framing noninstrumental rules of law and using the law as
an instrument for inculcating virtue. Nevertheless, Aristotle shared with
Plato and Cicero the conception of justice as a pattern for virtue because
he shared with them the same understanding of the relation between the
human world and the universe.
They all understood the universe as a cosmos, that is to say, as a unity
governed by a single pattern or principle. When they spoke of “nature,”
they meant an all-embracing cosmic order, from which it followed that
the human social order is as much subject to nature as are all the other
aspects of the universe. Although they recognized that the relationship of
the human world to nature has a different character from that of the
physical or biological world and disagreed on how that difference is to be
understood, they agreed that nature provided the pattern for human life
and that human activity ought to be directed to conform with this pattern.
It follows that the products of man™s art might conflict with nature, but
only if art is improperly exercised. Art is rightly exercised necessarily in
accordance with nature because art is the product of reason, and reason is
the governing principle of nature. If law shapes the life of the city, then
law is bound to shape it so as to conform with nature. And as nature is
not merely orderly, but characterized by a particular kind of order, law
ought to impose a substantive pattern of life. This view of nature, and
hence of law, was put in question by Christianity.
Part II

The Christian revision
4
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _St.______ _ _ _ Augustine_____________________________ _____________________________________________________________________________________________



Whereas in the ancient Greek tradition, there is a tension between law
as a means of securing a peaceful communal life among individuals
pursuing diverse purposes and law as a pattern for a good life, Augustine
unequivocally denied that law is a pattern for goodness or an instrument
of education. The question about whether peace or perfection is the
proper purpose of law, which had before been merely an implicit issue
in discussions of law, was made central by Augustine. It has since become,
in somewhat different forms, peculiarly important in the modern dis-
cussion, and those who today deny that law is a moral pattern still
give reasons which are in fact derived from Augustine, though seldom
recognized as having this origin.
The tension between the two views of law (as an instrument of peace
and an instrument of moral education) appears even within Augustine™s
own early writings because he initially accepted many of the classical ideas
that he had discovered in Stoic thought and especially in Cicero. In these
early writings, Augustine tended to speak of law, much as Cicero did, as
one with a cosmic ordering principle manifest to men through their
reason. He maintained that the lex temporalis is valid only if it is derived
from or correctly embodies the eternal law,1 and that any legislation
lacking this quality could not be just and therefore did not deserve the
name of law. Like his pagan predecessors, Augustine at this stage
regarded law as a means to man™s perfection, which he described as an
ascent to God for “Order is that which will lead us to God, if we hold to it
during life.”2 But it was not long before this Ciceronian identification of
law with justice was qualified by Augustine. In De Vera Religione he did
not say that legislation which failed to accord with eternal law was
invalid, but rather that the temporal legislator, if he is a good and wise

1
Augustine, On Free Choice of the Will, trans. Anna S. Benjamin and L. H. Hackstaff
(Indianapolis, IN: Bobbs-Merrill, 1964), 13“15.
2
Augustine, Divine Providence and the Problem of Evil (De Ordine), in Writings of Saint
Augustine, vol. I, ed. Ludwig Schopp (New York: CIMA, 1948), 264.

59
60 The Christian revision

man, will bear the eternal law in mind so that he may lay down for his
own time what is to be enforced and what is to be prohibited according to
its unchanging rules.
This change in Augustine™s view was due to a transformed understand-
ing 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.
Once Augustine repudiated the classical view of nature as a cosmos that
includes the human world, he argued that the creation of man introduced
a radical division in the universe. To understand Augustine™s view of law,
it is essential to see what this radical division in the universe implies about
the human world. It means that the human world, which consists of the
acts of human will and the resulting events, is distinct both from nature
and from God. Human reason cannot then be continuous with the Divine
Reason that orders the universe, and there can be no way of knowing that
God approves of what men have willed. On the contrary, there is bound
to be a discrepancy. What men call crimes need not be sins in the eyes of
God. But, on the other hand, Augustine warns, deeds that go unpunished
on earth might constitute sins because God™s concern is with the inner
state of the human soul, and He can know what is necessarily hidden from
men: “Many a deed, then, which in the sight of men is disapproved, is
approved by Thy testimony; and many a one who is praised by men is,
Thou being witness, condemned; because frequently the view of the deed,
and the mind of the doer, and the hidden exigency of the period severally
vary.”3 Men cannot control their own destiny or work their own salvation
as the pagan philosophers believed because perfection cannot be achieved
on earth. The only society in which perfection can be found is the society
of angels and saints in heaven. But as men nevertheless persist in trying to
achieve perfection by their own efforts, the human condition is a tragedy.
In the scriptural sentence quoted at the opening of the City of God “ “God
resisteth the proud, but giveth grace unto the humble” “ Augustine
expressed his condemnation of the pagan blindness to the tragic character
of human existence.4

3
Augustine, Confessions Book I, 17, in A Select Library of the Nicene and Post-Nicene
Fathers of the Christian Church, vol. I, The Confessions and Letters of St. Augustin, ed.
Philip Schaff (Grand Rapids, MI: Eerdmans, 1988).
4
Augustine, City of God Book I, Preface, in A Select Library of the Nicene and Post-Nicene
Fathers of the Christian Church, vol. II, St. Augustin™s City of God and Christian Doctrine,
ed. Philip Schaff (Grand Rapids, MI: Eerdmans, 1978).
St. Augustine 61
The Christian recognizes that there is no way to bridge the chasm
between his yearning for perfection and what he can do to achieve it.
And Augustine described this chasm as a dichotomy between two cities,
the earthly and heavenly. They are built by two different loves: “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.”5 It is impossible to
discern membership in the heavenly city by observing how a person
behaves. Nor are any particular performances required, for membership
in the heavenly city is determined by how a man understands what he
does. Whether men are members of the heavenly city depends on what
they love. But 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.6 That is why no city on earth, even if it is a Christian
theocracy, can ensure membership in the heavenly city. No civil or reli-
gious community can be identified with the heavenly city; that city finds
its members in every nation and every state and among people of the most
diverse habits and customs. Augustine accordingly rejects both the apoca-
lyptic view, hostile to the civil order of Rome, and the Eusebian view,
identifying Christianity with the Roman Empire. He emphasizes that we
can expect to find citizens of both cities living a common life with others
who are not like them, and it is impossible to identify the city to which
anyone belongs.
Augustine denies the classical view that the need for civil association
is intrinsic to man™s rational nature. Instead, he attributes the divorce
of the earthly from the heavenly city to man™s Fall. 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 con-
flict: 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 be-
cause, being a purely human arrangement for keeping chaos at bay, the
civil community is always in danger of disintegrating.


5 6
City of God Book XIV, 28. On Free Choice Book I, 15, 32.
62 The Christian revision

This understanding of the civil order made it impossible for Augustine
to accept the classical view of law. Whereas that rests (at least at one
pole of the tension) on an identification of the civil order with the moral
life, for Augustine, the moral life is wholly personal and independent of
the civil order. What gives the Christian his sense of identity is not
membership in a particular community but his faith that the world will
be transformed in the future when Christ will defeat sin and death. This
transformation depends wholly on God™s will, and anyone who supposes
that earthly projects can bring about such a transformation displays sinful
pride: “Who can deny that future life is most blessed, or that, in compari-
son with it this life which now we live is most wretched, be it filled with all
blessings of body and soul and external things? And yet, if any man uses
this life with a reference to that other which he ardently loves and confi-
dently hopes for, he may well be called even now blessed, though not in
reality so much as in hope. But the actual possession of the happiness of
this life, without the hope of what is beyond, is but a false happiness and
profound misery. For the true blessings of the soul are not now
enjoyed. . . .”7
Because the Christian considers every earthly project irrelevant to his
ultimate allegiance, he is necessarily an alien in whatever community he
finds himself. His proper concern is not with molding that community
to a particular pattern, but with safeguarding an area within which he is
left free to conduct himself as he believes he should.
The tension in the classical picture between the polis seen as an educa-
tional enterprise and the polis seen as an association distinguished by
diversity thus disappears in Augustine™s picture of the civil order.
That he is wholly committed to the latter and does not regard the civil
order as a natural organic unity is indicated by his use of the word
societas.8 This denotes an association produced by an agreement among
individuals, each of whom is pursuing his own interests, as opposed to a
universitas, which denotes an aggregate that has the unity of a natural
person and pursues a single end. This distinction, and Augustine™s insist-
ence that a civil order has the character of a societas, gives law a new
importance. For the only way that a societas can become orderly is by an
agreement to observe the law. Without that, there would be merely a
collection of individuals: “a civic community . . . is nothing else than a
multitude of men bound together by some associating tie.”9



7 8
City of God Book XIX, 20. Ibid., Book XII, 1; Book XVI, 16.
9
Ibid., Book XV, 8.
St. Augustine 63
Augustine™s repudiation of the classical view of man™s relation to the
cosmos thus led to a new conception of order, which laid the foundation
for a wholly secular and apparently amoral conception of law. Order
ceased to be identified, as in the classical view, with direction to a
common end and the pursuit of a good life. Instead, order became a
synonym for peace, in the most modest sense of an absence of violent
conflict. Peace in this sense is, for Augustine, the closest that men can
come in mortal life to the eternal peace which is their ultimate desire:
“there is no word we hear with such pleasure, nothing we desire with
such zest, or find to be more thoroughly gratifying.”10 And he maintains
that wicked men love peace as much as do good men: “For even they
who intentionally interrupt the peace in which they are living have no
hatred of peace, but only wish it changed into a peace that suits them
better. They do not, therefore, wish to have no peace, but only one more
to their mind.” Even those who wish to overthrow the established order
must establish peace among themselves: “And in the case of sedition,
when men have separated themselves from the community, they yet do
not effect what they wish, unless they maintain some kind of peace with
their fellow-conspirators.” Likewise, criminals who live by disobedience
nevertheless enforce obedience within their own ranks: “And therefore
even robbers take care to maintain peace with their comrades. . . .”
Indeed, the rebel who operates alone is constrained to adopt some associ-
ates: “And if an individual happens to be of such unrivalled strength, and
to be so jealous of partnership, that he trusts himself with no comrades . . .
yet he maintains some shadow of peace with such persons as he is unable
to kill, and from whom he wishes to conceal his deeds. . . .”11
But if men must try to preserve peace, they cannot discover how to do
so from an eternal pattern because there is no link between the human
world and nature, or between human and divine reason. Ultimate truth is
hidden from man, who inhabits a world that is full of violence and has
no visible anchor to a cosmic order. In this perilous condition, man™s chief
resource against violence is the law, which is thus part of God™s dispensa-
tion for punishing man™s transgression and for dealing with
the consequences of that transgression. The role of law in the human
world is not then analogous to the governance of reason in nature as in
the classical picture. In no sense can those who make and enforce the law
draw on some higher, infallible reason. Law is not so much a protection
against the dominion of tyrants as the only alternative to the violence of
anarchy.


10 11
Ibid., Book XIX, 11. Ibid., Book XIX, 12.
64 The Christian revision

This does not, of course, endow law with an exalted character. On the
contrary, Augustine™s emphasis on the misery of a mortal condition is
nowhere more evident than in his insistence on the inescapable defective-
ness of earthly law. Although he continued to write about the “eternal
law” as divine reason or the “will of God,” in his later writings he speaks
of human law not as a direct derivative from eternal law but rather as
standing apart from the order of nature, which remains as an ultimate,
but inaccessible and mysterious source and sanction.12 Whereas his pre-
decessors had exhorted men to remember that their reason gave them
access to eternal truths, Augustine keeps reminding them that they are
blind beings from whom the truth is hidden. The laws that they make
are neither embodiments nor reflections of the “eternal law,” but rather
human artifacts subject to all the uncertainty inherent in human life.
To dream of establishing a perfect set of laws, suitable for all times and
places and impervious to change, thus becomes a sin rather than a noble
aspiration. Augustine never ceases to believe that the “most perfect law of
God Almighty” is “the same always and everywhere,” and that “Moses,
and David, and all those commended by the mouth of God were right-
eous” and that those who judged them to be otherwise were “foolish men,
judging out of man™s judgment, and gauging by the petty standard of their
own manners the manners of the whole human race.” But that did not
prevent him from insisting, and with a peculiar fervor, that the same laws
cannot be suitable for all times and places: “Like as if in an armoury, one
knowing not what were adapted to the several members should put
greaves on his head, or boot himself with a helmet, and then complain
because they would not fit. . . Such are they who cannot endure to hear
something to have been lawful for righteous men in former times which is
not so now; or that God, for certain temporal reasons, commanded them
one thing, and these another, but both obeying the same righteousness;
though they see, in one man, one day, and one house, different things to
be fit for different members, and a thing which was formerly lawful after a
time unlawful “ that permitted in one corner, which done in another is
justly prohibited and punished.”13
But it does not follow, as fools might conclude, Augustine argues, that
therefore justice is various and changeable. Wise men know that justice is
unchanging, but that “the times over which she presides are not all alike,
because they are times.” Because men live for such a brief spell on earth

12
Augustine, A Select Library of the Nicene and Post-Nicene Fathers of the Christian
Church, vol. IV, St. Augustin: The Writings against the Manichaeans and against the
Donatists, ed. Philip Schaff (Grand Rapids, MI: Eerdmans, 1988), 283“84, 288, 295“96.
13
Augustine, Confessions Book III, 13.
St. Augustine 65
and have such a constricted experience, they cannot connect what

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