Theses on Reformed Natural Law

  1. There is an objective moral order to which we have cognitive access.
  2. Natural law is a participation, however indirectly, in the Divine Mind. (See this chart).
  3. Law is a rule and measure of acts directed towards the common good (Thomas, ST I-II, q.90).
  4. Politics is the art of associating men for the purpose of establishing, cultivating, and conserving social life (Althusius).
  5. God willed that each need the service and aid of others in order that friendship would bind all together and no one would consider another to be valueless (Althusius).
  6. Ownership of a realm belongs to the estates and administration of it belongs to the king [or relevant executive figure] (Ibid).
  7. Human law is not identified with natural law. It is practical reason. Human law is directed towards particulars (Thomas, Ibid, q.91).
  8. Natural law is unchangeable in its first principles, but changeable in its proximate conclusions (Ibid, 94).
  9. Thomist natural law employed a grace perfects nature scheme. It is not clear if Reformed natural law needs such a scheme.
  10. Moral virtue of rendering to others their due (ST 2a 2ae. 57.1). It is a balance of equity.

More could be written, but that would make it unwieldy. Early natural law had the state punishing heretics. Is this part of the esse of natural law? Not necessarily. As noted in Thesis 8, punishing heretics is a proximate conclusion and not binding.

Federalist Papers

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atrick Henry’s most famous line was “Give me Liberty or Give me Death!” Alexander Hamilton probably said “Give up your liberties, or we’re all going to die!”  While there is much wisdom in Madison’s remarks, the same really can’t be said for Hamilton. And while many of their predictions proved quite wrong, and one can argue that the challenges of the anti-federalists were never really answered, it doesn’t seem we can go back to pre-1789 America.  To suggest otherwise is LARPing.

Nos. 2-4; Concerning Dangers from Foreign Force and Influence (Jay)

(1) America’s prosperity is traced back to being united via prayers and efforts by the wisest citizens (31).

(2) A cordial union protects against foreign influence (36).

No. 5.  Argument: the smaller confederations would soon become warring factions.  Why? Because they would distrust each other? But why would they distrust each other?  Why aren’t the states now already killing each other? So why suppose it then?

No. 10.  This is one of the most important papers in the whole book. How do you stop factions from arising?  Madison proposes to control the adverse effects from having many factions (which he grants as inevitable).  He has some nice comments on the nature of a republic, but he seems to think that his Anti-Federalist opponents advocate Athenian democracy, which is absurd.

He makes a very interesting economic aside, warning against “the rage for paper money, for an abolition of debts, for an equal division of property.”

Hamilton

Before we begin we need to note Hamilton’s rhetoric.  He calls anyone who disagrees with him a “bigoted idoliser” (No. 80).

No. 1 (Hamilton)

(1)  Calls for empire (27). (2)  An “energetic government.” (3) Warns against a concern for “the rights of the people

No. 11.  Alexander Hamilton’s mercantilism is on full display. He comes very close to declaring economic warfare on….well….everybody. And the only way this is possible is with a great navy.  This is starting to sound a lot like Great Britain! In Federalist No. 13 he is already speaking of “empire.”

No. 17.  The obvious rejoinder to anything Hamilton says is, “Doesn’t this make the government too powerful?”  Hamilton’s naivete is on full display. Presumably with a straight face he responds, “I confess that I am at a loss to discover what temptation the persons entrusted with the administration of the general government could ever feel to divest the States of the authorities of that description.” In fact, he says that it is far more easy for the state governments to encroach upon the federal government.  I actually think he is serious.

No. 19.  It’s somewhat fashionable to find “covenantal elements” in the American founding, and while that might be true in some areas, it is not true in Hamilton.  He openly attacks a true covenantal society. He looks at parts of Europe (which reflected Althusius’s model) of descending covenantal structures (Empire → Sovereigns → congresses).  Hamilton says this is a nerveless body.

Hamilton shifted his argument.  He is no longer arguing that a confederation is wrong for logical or practical reasons.  He is now arguing that a confederation is wrong because it makes a central government impossible.  That’s exactly the issue under debate. Hamilton now begs every question.

No. 21. Hamilton warns against a particular state conquering the entire Union and eradicating liberties.  He never once considers whether a Union can eradicate the liberties of particular states. Every sentence in this article is either special pleading, historically wrong, or patronizing.  He justifies taxes on goods because it will contain the excesses of immoderate desires! In the last paragraph he actually argues for “no limits to the discretion of the government” regarding taxes.

No. 24.  Hamilton’s main goal is to get a navy. “If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy.”

No. 28.  Hamilton’s remarks should send chills down the spine of every patriot: “Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government.”  This is called a dialectic of oppositions.

No. 31.  The Federal government should have “unqualified power of taxation in the ordinary modes.”

The next error isn’t entirely Hamilton’s fault.  Everyone in that day thought the showdown and danger to American liberty would be a battle of Congress vs. President.  No one realized that the true tyranny would be the Supreme Court.

Madison

No. 39.  Madison’s essays, by contrast, are quite informative.  He clarifies the distinctions between federal and national governments.

No. 51.  Here we have Madison’s famous line “Ambition must be made to counteract ambition.”  He understands the problem: one side of govt will try to get stronger than the other sides.  His solution is to play every side against the other. This will work for a while, but it is intellectually and ethically unstable.  This flaw was seen as early as St Augustine in City of God. If men aren’t controlled by virtue, then they will seek to expand the sub-virtuous elements.  That’s why we don’t build a social order on playing vice against vice.

Some problems:

(3*) Jay asks how a divided confederacy can withstand an invasion.  Yet, was that not the very situation of the War for Independence?

(4*) He notes that Britain could not have successfully lived as a divided island.  Fair enough, but Britain is so much smaller, which is the Anti-Federalists’ very point.

(5*) He asks how can the states remain on an equal footing.  Good question, but even under the Constitution the South did not remain on an equal footing as the North.

With all of that said, there are numerous snippets of wisdom.  Either Hamilton or Madison notes that “the object of a government is the happiness of its people (defined in the classical sense).  And in a very non Hamiltonian strain, we see that “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood” (No. 62).  In other words, the US Tax Code.

Outline Althusius Politica

Thesis 1: The rights of sovereignty are proper to the realm, not the magistrate (7).

  1. The general elements of politics
    1. Polity
      1. Politics is the art of associating men for the purpose of establishing, cultivating, and conserving social life. Althusius calls this phenomenon “symbiotics.”
      2. A polity consists of:
        1. A communication of right (jus)
        2. The manner of administering the commonwealth
        3. The form of the commonwealth
    2. Mutual communication (a sharing; a making common)
      1. Things
      2. Services
      3. Common rights
    3. God willed that each need the service and aid of others in order that friendship would bind all together and no one would consider another to be valueless (23).
  2. The Family
  3. The kinship association
  4. The collegium: civil association
    1. Three of more men of the same trade/guild uniting together
    2. A communication among colleagues (see 1.2.1-3).
  5. The City
    1. Althusius holds to the idea of a Corporate Person: the community is called a representational person, as it is a coming together of men to speak collectively (40).
    2. A city may be free, municipal, mixed, or metropolitan
      1. Free city: its immediate superior is the magistrate and is free from external control, save perhaps the Emperor.
      2. Municipal: subject to a territorial lord
      3. Mixed: combination of 1 and 2.
      4. Metropolis: mother of other cities.
    3. “The rights of the city…are also communicated by the citizens” (48).
  6. The province
    1. The members of the province are its orders and estates, as they are called, or larger collegia (54).
    2. Althusius doesn’t fully develop this point, but this will be the point on which Rutherford argues for resisting tyrants: it is never the individual who resists the king.  It is the collegia and estates. In fact, this isn’t really a theological argument at all, so the claim that “Jesus and the Apostles didn’t do this” is irrelevant.
  7. Political Sovereignty and Ecclesiastical Communication
    1. Ownership of a realm belongs to the estates and administration of it belongs to the king (66).
      1. The members of the realm are the collegia, not individuals.
      2. The bond of the realm: tacit or expressed promise to communicate things, mutual services, aid, counsel, and common laws to the extent that the utility of social life shall require (67).
    2. Sovereignty: supreme right of universal jurisdiction
    3. Right of the realm: twofold
      1. Welfare of the soul
      2. Care of the body
  8. Secular Communication
  9. The Ephors and their Duties
    1. An Ephor is something a little stronger than a Senator, but not quite a hereditary prince.
      1. They are the representatives of the commonwealth, by whom kings are constituted.
      2. They are the “protectors of the covenant.”
  10. The Constituting of the Supreme Magistrate
    1. He exercises as much authority as has been conceded to him.
    2. The people are prior in time to the magistrate and more worthy in nature.
    3. Since no one can renounce the right of defense against violence and injury, so the people have the power to resist an erring kng.
    4. Fundamental law of a realm: certain covenants by which many cities and pacts come together and agree to defend and establish the same commonwealth (128).
  11. Political Prudence in the Administration of the Commonwealth
    1. The rule of living, obeying, administering is the will of God alone
      1. This law is twofold: common or proper
        1. Common: naturally implanted by God in all men
        2. More on common law: also called the moral law (139).
      2. Knowledge and inclination: different degrees of this knowledge and inclination.
    2. Althusius then gives a short commentary on the Decalogue (141).
    3. Natural law and biblical law:
      1. Positive law today can’t simply repeat the Decalouge, not can it constitute a new specie.
      2. It must agree with common law/decalogue in thos ematters common to each law.  
        1. It differs from its accommodation to particular and special circumstances.
        2. Common law commands in general; proper law in particular.
  12. Ecclesiastical Administration
  13. Concluding thoughts
    1. Althusius discusses to what degree a magistrate can harass heretics.
    2. Allows that Jews may live in the commonwealth (remarkably progressive view at the time)
    3. Under which circumstances one may resist tyrants