Book I. Chapter 10: 1-7

Robb

The poor have been rebels, but they have never been anarchists: they have more interests than anyone else in there being some decent government. The poor man really has a stake in the country. The rich man hasn’t; he can go away to New Guinea in a yacht.

G.K. Chesterton

In chapter 10 Hooker turns his attention to reason’s role within the founding of positive law in matters of government. He begins with what I think is his main concern: to those who consider that “religion and virtue are only as men will account of them” (x.1), he establishes the universality of law governed by reason. Crucially, however, he leaves room for particular instantiations of the law. This is important not only for the order of government, but also for the Anglican tradition vis-à-vis the general councils.

Hooker claims that there are two foundations to any public. The first is the natural desire toward sociality and the second is the common good. Regarding the former, Hooker takes it as axiomatic that “nature itself teacheth laws and statutes to live by” (x.1). Ever the good Aristotelian, Hooker agrees that humans are by nature political. States Hooker,

“But forasmuch as we are not by ourselves sufficient to furnish ourselves with competent store of things needful for such a life as our nature doth desire, a life fit for the dignity of man; therefore to supply those defects and imperfections which are in us living single and solely by ourselves, we are naturally induced to seek communion and fellowship with others. This was the cause of men’s uniting themselves at the first in politic Societies.” (x.1).

Hooker is adamant about the priority of our commonality, it being a part of our “dignity” as humans. Moreover, our lack or our inability to procure all goods for ourselves is not only a sign of our weakness, it is also a sign of our hope – the possibility of a common life. And whether this is admitted or not, we are bound by “the law of a Commonweal,” which is “the very soul of a politic body” (x.1). Since virtue is not a private affair for Hooker, the function of law is to protect what is common and restrain what is private (x.6), nearly the exact opposite of what we have today.

In order to substantiate the universal applicability of natural law, he turns to what he regards as some natural principles; namely, the idea of the paterfamilias. As it stands for Hooker, the notion of fatherhood is wholly natural: “we can see throughout the world even from the foundation thereof, all mean have every been taken as lords and lawful kinds in their own houses.” (x.4).

Hooker then moves to discussing the difference between natural law and the positive laws of governments. Although he recognizes the necessity of positive law in light of our fallen nature, “the corruption of our nature being presupposed, we may not deny but that the Law of Nature doth now require of necessity some kind of regiment” (243), he does not grant positive law universal status.  “In laws, that which is natural bindeth universally, that which is positive not so.” (x.7). Positive law needs to reflect the particularity of specific domains, while natural law is determined through the right exercise of reason and virtue.

A couple of comments:

As we saw in previous chapters, the dispensation of law stems directly from God’s Trinitarian self. Law is therefore not simply a restraint upon a prior order of violence (though this is part of its function), as if the law were given secondarily in response to an “ontology of violence.” Rather, created nature mirrors the Trinitarian processions, and has a natural desire for the supernatural (chapter V). Since the Divine law stems directly from God’s being, there can be nothing insidious about the law; the law in fact directs toward a “right end” (x.1). As such, the law does not simply restrain violence, but can work to indoctrinate virtue and the good. “Laws do not only teach what is good, but they enjoin it” (x.7). Interesting that it is Hooker’s Trinitarian theology that does not allow him the luxury of antinomianism!

Hooker’s defense of natural law by way of the paterfamilias is troublesome and carries little weight today. The issue then is how to think questions of natural theology without ‘locking down’ the natural, but at the same time to avoid privileging indeterminate flux or becoming as an ultimate horizon. I still think Hooker offers some helpful resources in terms of learning how to sail between these two extremes.

And like any other modern person, I’m often uncomfortable with questions of natural law. But I’m beginning to wonder if there is indeed some advantage to having a well-developed theory, such as Hooker attempts, of thinking the difference between divine and positive law and the relation between the two. We have all but lost this nuance today, such that only the positive law exists and, ironically, ends up becoming a divine law at the end of the day. And to the extent that we reject positive law on the basis of a principle higher than the state, we can often only do so in an ad hoc manner or as a “beautiful soul,” effectively leaving the plebs behind (see Chesterton above).

I also think it’s clear that we often lack the legal vocabulary needed to deal with the difficult questions of the [positive] law’s seemingly inexorable sway over our lives (in that to be born is to be subjected to some law). Yet theology knows that the positive law is only provisional, and in the case of Hooker, eudemonic: “All men desire to lead in this world a happy life. That life is led most happily, wherein all virtue is exercised without impediment or let” (x.2).

In light of important questions surrounding war, violence, the state, when rebellion is appropriate, etc., would a theory of eudemonic divine and positive law help? I’m thinking here of a illuminating story that Howard Zinn once recalled about Daniel Berrigan’s mother. As Zinn writes,

They asked Daniel Berrigan’s mother what she thought of her son’s breaking the law. He burned draft records-one of the most violent acts of this century- to protest the war, for which he was sentenced to prison, as criminals should be. They asked his mother who is in her eighties, what she thought of her son’s breaking the law. And she looked straight into the interviewer’s face, and she said, “It’s not God’s law.”

Advertisements

4 thoughts on “Book I. Chapter 10: 1-7

  1. Tony Hunt says:

    Solid thoughts here. I’ve got a few notes of my own to add after I comment on a few you brought up.

    You said:

    Hooker’s defense of natural law by way of the paterfamilias is troublesome and carries little weight today. The issue then is how to think questions of natural theology without ‘locking down’ the natural, but at the same time to avoid privileging indeterminate flux or becoming as an ultimate horizon. I still think Hooker offers some helpful resources in terms of learning how to sail between these two extremes.

    With regards to this, and especially the part I italicized, I actually do think Hooker himself has something to offer here. If we recall, Hooker said that sometimes, for whatever reason, bad tradition and custom clouds the judgment of reason. The example he cites is that of the widespread practice of idolatry.

    So it seems to me that we can legitimately say, from within Hooker’s own framework, that patriarchy is such a “bad tradition,” one that is not in accordance with reason.
    _________________________________

    You also pointed out:

    “only the positive law exists and, ironically, ends up becoming a divine law at the end of the day.”

    I think you’re right on here. The foundation of laws becomes the sheer authority and power of the state which defines/creates the individual, grants — or acknowledges! — rights, creates and enforces laws. There isn’t a sense of the objectivity of the good, there is only the voluntaristic convenience or choice of the people or state.
    __________________________________

    There’s an interesting thing that Hooker says in this chapter. Namely, that laws can only be perfect when they assume beforehand that humans are depraved. But in chapter 3 Hooker says quite explicitly that we can only know about the Fall through Revelation.

    Now what this says to me is that the basic premise for the right ordering of positive law is in reality the knowledge from divine revelation of our fallenness.

    If we were to say that it is through Reason that we decipher the fact that humans are depraved we would actually be able to know by reason that we are fallen.

    Let me clarify. Without the knowledge that we are fallen, Reason would have to conclude that human nature itself is to be violent, etc… In which case it could not be that humans are depraved, they simply are — they exist as violent beings.

    It is when the knowledge of our fallenness enters into the picture that we can say, yes we are violent SOBs, but that is not how we were first created or how we must be.

    Without this revelation, perhaps humans could reason together and conclude that they might create for themselves a healthier and better life through the creation of politic societies and laws for them, but they could not conclude that humans are in fact depraved.
    __________________________________

    Hooker points out that the provision of basic human needs are necessary for the moral life. And I don’t think this means only that in some way or another all a human needs is some kind of limited access to food, clothing, and shelter. For constant need of these things, where one’s entire life is spent in the pursuit of them, does not allow humans the freedom to grow in knowledge and discipline.

    So if people are only barely getting by, then they are still put in a place where the fullness of life is unavailable to them.

    Therefore a public social justice must be of paramount importance for any society that would want a eudaimonic life. It is a fallacy that morality lifts one out of poverty.
    ____________________________________

    Note Hooker’s social history is practically the exact reverse of an anarcho-primitivist history. It’s not that humans “fell” from grace by organizing into societies and creating technology, it’s that without society and technology they are enslaved to nature and are inherently violent. This is, I should note, completely in step with Bulgakov’s narrative of the Fall!
    ____________________________________

    Finally, to beat a dead horse, consider that Hooker says in section 7 that it is imperative that wise men of good character and counsel frame laws because not every person is able to know what is good and best. So, again, is it really that the good is able to be known by all people through the exercise of reason?

  2. Robbie says:

    Hey Tony,

    Great comments all around. I’m looking forward to responding tomorrow afternoon when I have a little more time.

  3. Robbie says:

    Hey Tony,

    Absolutely agree with your first point. I don’t want it to sound like I think Hooker is guilty of the naturalist fallacy, thus aligning myself with Hume. Rather, I think he’s driving home the point that since all desire the good, then to exist is to strive for the fullest form of existence, of which society is a part. Since this is a fundamental point for Hooker, then we should expect him to seek traces of this fullness in all human societies and try to give a normative account of proper human flourishing. This especially makes sense given that God isn’t something that Hooker tries to snuggle into the world, as if God were an extrinsic teleological intervener.

    Interesting point about revelation leading to the knowledge of our fallen nature, and what we would attempt to construct without such divine knowledge. And this becomes an even more interesting point in light of Hooker’s rejection of total depravity. If our fallen nature is contingent, then the law does not have to be merely punitive; it can be good (in the fullest sense of the world) and reflect Christ. Again, not secondarily, but sacramentally or analogously.

    That’s interesting about Bulgakov and the fall. Where does he touch on this topic?

    As to your last question, “is it really that the good is able to be known by all people through the exercise of reason?” Isn’t this why we need the law in the first place? The Puritans seem to maintain that we can know Christ outside of society, the law, the church, the sacraments, tradition, etc. Hooker is saying no – reason has to been trained; salvation takes time, etc., and this is what the law provides.

    • Tony Hunt says:

      I never responded to you on Bulgakov, btw. Uh, I first learned about it in the edited volume by Rowan Williams on B’s political theology, which included large portions from various works. I know he covers some of Original Sin in his book on Mary; but I’ve been reading Lamb of God and it’s in there at several points. The Fall is a kind of turning to base nature and being enslaved by sheer physicality, which leads to magical thinking and power seeking rather than theosis.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: