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.
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.”