The Mosaic Polity

On the Just Definition and Division of Law

Chrysippus, when about to speak of law, is recorded to have described its supreme dignity, usefulness, and necessity in these words: "Law is the queen of all things divine and human, which ought to be the governor of both good and evil, and their chief and guide, and therefore to be the rule of just and unjust things, given for the sake of those living beings who are by nature political and cultivate society with reason, commanding those things which ought to be done, and prohibiting those which ought not to be done." This description of Law, according to nature by Chrysippus and others similarly, or delivered to the same effect: by which law all mortals from the beginning have been led to preserve a certain order in human society, as they have acknowledged its dignity, usefulness, and necessity with nature as guide and experience as witness.

But when the saving grace of God has shone upon men, from which we are called and are Christians; the more truth and perfection our Savior Jesus Christ brought to that law of grace, the more dignity, usefulness, and necessity must be observed by us in our duty: not only as we are human beings, participants in social life and communication according to nature; but also, and indeed especially, as we are Christians, admitted to the communion and fellowship of heavenly life according to grace to be cultivated and observed here on earth. For just as by the fact that we become Christians, we do not cease to be human beings, but we are Christian human beings: so also it must be established by us that by the fact that we are bound by Christian laws, we are not immediately freed from human laws. For grace perfects nature, but does not abolish it: And therefore the laws by which nature itself is contained, it restores and renews the lost ones, establishes the corrupted ones, and delivers the unknown ones.

Therefore, being about to speak concerning this most holy and most useful subject as much as seems necessary from theological reasoning for calming human consciences, so that it may be understood what that is concerning which we treat, we will first institute our discourse from the definition of Law: then indeed with distinct on the types of government 344 OBSERVATIONS ON MOSES' POLITY on its types as briefly as possible, we shall come to declaring and determining that particular type for the sake of which this work was undertaken. Therefore, we shall define law according to a certain common and analogical reasoning in this manner:

**Thesis I.** Law is an ordinance of reason directed toward the common good, instituted by one who has care of the community.

There are indeed other definitions already set forth long ago by most learned men, such as that of the Stoics: that law is right reason, commanding what ought to be done and prohibiting what ought not to be done. And following in their footsteps, Cicero in *De Legibus* I says that it is the highest reason, implanted in nature, which commands what ought to be done and prohibits the contrary, thus making that definition narrower than the one the Stoics had earlier handed down. But because things are most clearly defined through their causes, we have preferred that definition to others, especially since whatever definitions are brought forward are generally (which is defective) narrower than what we undertake to define in this place.

Therefore, in this definition, instead of what others call law "right reason" (which statement is said figuratively), we have preferred to express distinctly the genus and difference of law, saying that it is an ordinance of reason. For the genus is ordinance, which is an act showing a perpetual and necessary relation between the one ordaining and those who are subject to the ordinance. The difference pertaining to determining the nature and species of law is expressed by the word "reason." For there are indeed other ordinances introduced both by nature and by the will and appetite of created things: but whatever ordinance of reason is so tempered that the reason of the one ordaining affects the reason of those who are subject, and their reason in turn depends on the reason of the one ordaining—that alone is properly to be called law. Whatever is done otherwise should be called not laws but institutions, unless perhaps someone wishes to speak homonymously or equivocally.

And therefore, for the proper formation of law, ordinance indeed establishes the genus, while a threefold mode establishes its proper and necessary species, pertaining entirely to the difference of law: namely, the reason of the one ordaining, the reason of those who are governed by the ordinance, and the very reason of the ordinance intervening between both. If anything is lacking, law is improperly so called.

Now because the matter itself is more easily understood when an enumeration of causes is applied, and an exposition of causes entirely removes all causes of doubt, let us see briefly what those causes are in this our definition of law. We call the matter of law reason as subject, and the entire work of reason placed in the distinction of just and unjust, which work intercedes between superiors who rule and inferiors who are subject. For although law, as an act, is properly attributed to the will (because acts belong to the will), nevertheless since this act comes from reason obtaining supremacy over the will itself, it is altogether more fitting that this act be attributed to reason as prince rather than to the will as its minister.

The form of this act is called ordinance, because such is the nature of all related things that the relation itself intervening between two related terms constitutes the form of the thing being done.

We have expressed the efficient cause in these words: "instituted by him who has care of the community." For if someone to whom the care of the community does not pertain should wish to make ordinances concerning it, he will consume his efforts in vain with foolish activity. It is necessary that care of the community be present in him—not only by inclination, but also by just calling and authority—who institutes ordinances concerning the community: whether it be the entire multitude comprehended in the community itself, or a public person having care of the whole community by legitimate calling.