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Human Laws & Good Citizens
.1 Citizens & Legitimate Authority
The t I'm city enter d the English language from the french cite, ultimately coming from the Latin civitas. Cicero wrote concilia coetusque hominum iure sociali, quae civitates apellatur. In other word, a city is an assembly of people brought together by law. Citizenship and law are two in eparabJe notions: when people a .... semble with ut law there i a mob.
We must ask ourselves why people come together; why authority is needed; what makes it legitimat ; and what is the purpose of promulgating laws.
To the question of why people come together, there are a variety of responses, although the only ultimately valid one, when they do it freely is due to the fact that they are seeking a common good that, otherwise, i impossible or at least difficult to achieve,
There could be many other reasons for their assembling: they could be people interned in a concentration camp; or refugees e caping from the ravages of war; or it could imply be that they happened to find themselves in such a ituation, for in tance famili s living for centuries in a valley surrounded by high mountains. But these or other similar ca es of coming or of being together are not necessarily intended; therefore their assembling is pur ly pa ive.
Why do they need authority? For the Classics, auctoritas was the power of an auctor-an originator, a causer, an ancestor-to carry on his work; it was the in-fluence of the water ouree in the whole course of the river. Authority can be natural, a it is the case of the parent with respect to their children; or it can be invested, conferred to a person by tho e who decide to group themselves for a common purpose. It is obviou that in so doing the citizens expect that individual to exercise authority within the limits that they hav irnpo ed on him and that he will make use of such authority exclu ively for the common good. The granting of authority entails no alienation in the cJas ical "uerbachi manner, although it implies always a risk of abuse.
I Ludwig Feuerbach (1804-1872) claims that religion ri cs from one's alienation from onesel f, and the proje ti 11 f ideal qualiti s into a fictitiou supreme" til r".
uthority i needed becau e the common good can only be achieved by a certain unification fthe wills of manv, ori ntinz them toward a cornm n purp c. TI~e excrci e of authority aim to the unif(cation of ~ind only to a certain extent, ince the mind urrenders it elf only to truth and in many debatable matter it i not ea y, although it could be desirable. to reach a con nsus.
Yet the exerci e of authority i not exclu ively founded on the imperium, the right of ordering or commanding, since the deci ion ha e to correspond to ordination of rea on. In other word: a good. clearly recognizable and accepted aim can be attained in a variety of, a_ s and the one in authority i empowered by the community to ca sa prudential judgement ab ut the mo t effective way to impose it on the other To the exercise of legitimate authority. th ubject are committed to respond with another act of th will eeking union with it: thi i an act of obedience. from th Latin ob-oedire. to listen. to pay attention to.
This aspect of rationality can never be ab ent from any I urnan law: otherwi it
would 10 e its power to set a moral obligation of the individual in relation to the communi ty.
What is it that makes authority to be legitimate? This que tion, pre ented in pure juridical term, con titutes to a certain extend a kind of vicious circle. becau e the term legitimate means according to law. Therefore anyone claiming to be endowed with authority must have acquired it according to preexisting laws: but is not clear why Jaws passed in previous generations may oblige us. That is why real legitimacy may always include a moral aspect
The legitimacy of origin can. therefore. pre ent a problem: historv hows that it has been challenged on innumerable occa ions. For ome person their authority derives from the fact of being the natural origin of their ubjects. as in the ca e of parent in relation to their children. There could also exi t a supernatural authority inve ted by God into a person as it was the case of Moses or Jo uah.
Ordinarilv it i the citizens the one giving themselve the laws that regulate how a person is constituted in authority and how it i- taken away from him: this is. in our understanding. the greatest merit of the democratic system. This sy tern. though. r t on the assumption that the present-day citizens agree to the rules e tabli hed by previ u generation'. which is something that cannot be taken for granted. Here we m et a problem that cannot be ignored.
In the hi torical monarchie . authority was oftentimes vested through lineage. not election. but the ystem wa broadly accepted within c rtain conditions like swearing to honor the ance tral laws of the land, etc.
But the legitimacy of origin alone i not enough. Lezitimacv of exercise i al 0 needed: the e, erci e of ~utbority mu t be confined ~~ithin the bound imp ed by the
community. For positive law to imp e ethical obligations upon the citizen thi double legitimacy is a nece ary. although not a ufficient. condition.
3.2 What Laws Should Intend to Achieve
Whati what real. morally obliging law .hould intend to achieve? in W t rn c1as ical wisdom there i a broad con ensus that only tho e legal imp iti n that are intended for the common good have the moral power to oblige. If the intention of the legal precept i n t the c m1110n good. but only what i practical or pi a urabl for the lawgiver or for a determined group (e.z.. a ocial class. the population of a part of th territory. a political party. a bunch of friends. those who adhere to a certain ideology). then that o cific pi ce of legislation i only formally a law. but lack the intrinsic substance of a real law: in ther wor I it i an abuse of law: not a vehicle, but a miscarriage of iustice. since it intend to infringe into the original freedom of the subjects for bastard r a ons, the only legitimate rea on for it bing th cornrn n good.
Aristotle affirmed that the intention of the lawgiver is to make good citizens'; the expres ion good citizen. was meant to describe persons that can be considered good from the view point of their fulfillment of the established relation with other persons belonging to the same organized society.
quinas 'plains that a Law is nothing else but a dictate of reason in the ruler bv whom hissubjectsare governed', In other words a man can be good only in so far as I,'e follows the dictate of prudence. that telJs him that something must be done or avoided. or that the e or those means are fit to achieve a good end. Ordinari I y the individual per ons must pa their own judgements on the matters: but regarding those matters that refer to a common good that can only be obtained in cooperation. it would be
practically impossible to achieve a eonsensu ince there is plenty in them that i
debatable. Therefore. the individual persons agree on tran ferring the re ponsibility of formulating the common rule of behavior to one or vcral person chosen from among them, who are thus constituted in legi lative auth rity.
Prudence being the right thinking about acting", it i clear that the laws, which are act of prud nc of governance, I11U t i ntend to lead the ubiect to their proper virtue, that is to say to make them better men. by making them good in a particular a peet of their own acti vity.
T be a good citizen is therefore a 0311 f being a good man: it would be impossible for a man to be good unle he trie to fulfill with exemplary perfecti Jl the legitimate law of th land
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Ansiou . 1~I/71CS, 11. I.
1 Aquinas, SUlilHld lil ologica, Q 92, reply. ,I Recta r ul«) oeibitio.
3.3 Human Laws Help ubjects to be Retter Men
How do human law work in helping the subi ct to be better men? ristotle ay that lawgivers make men zood hy contributine /0 (he develoomeut of habits
ofdoing ood works". .. . ..
It i obvi u that habits of external behavior can be imp sed through coer ion: but action done under violence or fear are not true human actions. since for an action of a man to be trul. human. it must be elicited from his intellig nee and free will. The habits of ding go d which the Philosopher peak about are freely a umed habit: ornethinz appreciated and ought after. not om thing imposed by force.
Hov an human laws. therefore. ontribute to make men better? They do o. fir r, by enlightening the minds of the subjects. Laws must cos ess a tran parencv of the good intended to achieve. or of the evil that i to b pre ent~d. If the purpose oftl;e law is not manif t or the adequacy between means and end is not clearly presented. that piece of legi lation fail to fulfill its primary purpose a law that i to enlighten the minds. When the branches of the free do no! allow to see theforest, such legi lative puzzle can b a good occa ion for legal practitioners to how their wit. but it defeat its own purpose as law.
What i good. when properly under tood. always appeals to our nature: as a consequence, the common good that is intended by the law I11U t be presented in such a way that it appeals to the wills of the ubject. And so human laws. when they are truly laws. help men to be better. Certainly there must be in the laws an element of deterrence for those who are not willing to listen or to follow. a a way to protect the common good. Law. therefore. could be obeyed exclu ively out of fear of punishment. but even in such ca e there i orne beginning of good in obeying them.
3.4 Bad Citizens
Thos individuals who ubrnit thems lve to an authority in order to achieve an otherwi e irnpos ible common good are willing t practice a ocial virtue called obedience to law. The virtue of obedience. being a voluntary habit of doing good. implies no alienation. ince it is per onally a umed. The good citizen i happily obedient to true laws even when he is not totally in agre ment with th ir formulation.
Even if the authority i I zitimate in origin and exercise. di agreement of a citizen with the law can be found~d on a-number of reasons, mostly becau e he con iders it unfit to bring forth the intended effect. He may con ider that. even if its general objective is co d. ~s particular aim i not well focu' ed: or. what i e en more frequent that the means thr~Ll,..,h wh.ich the lawgiver xnect the law to achie e it aim are not perfectly adequate to i-t end. So, the zo d citizen i entitled to disagree with the existing law. to expre his di agreem nt with due pruden and ven to procure to change the law
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through legally established procedures. except in tho e ca e whcn LO manife tone's mind could call great harm to the common good.
A long as there is only a defect of good. but no evil. the common good imposes on thc good citizen an obligation to obev. Th term oblization comes from the ati n obligare. -to tie. to bind lID~ Originally ·obli7are meant- to bandaze a wound: a very xpre ive way of indicating that the citizen feel voluntarily obliged to obey the laws in rder to avoid social hemorrhage.
Here we touch the depth of human mvst rv th human inclination to cck disorderly a partial good that breaks us away fr 'm contributing to the common good to the point of hurting it and. furthermore. fr m attaining one's ultimate per onal good.
Human laws have ever since been characterized by posse ing that DOW r to coerce, to avoid that bad citizens may harm the common good. Here we can speak of a c rtain voluntary alienation. of a certain tran fer of our intrinsic capacity to cau e social evil to thos in authority so that they may oblige us to avoid that harmful activity.
Thi remedy of what Christian thought has always considered to be a con equence of original and personal ins in us. makes use of the d terring power of f ar to contain our inclination towards ocially harmful behavior.
A for the justification of punishment it elf. there has been and till there are a broad variety of opinion that go from atonement and ju t retribution all the way to the healing of the offender.
The bad itizen i not only bad because he does wrong things as a citizen: he has also entered voluntarily into a social agreement of accepting rea onable punishment if he breaks the rules that govern th common good-the commonwealth in English terms.
3.5 Bad Laws and Good Citizens
Men are always imperfect; therefore they are perfectible and mu t try to be perfect. Human law are p rfectible. too. But human being can also be bad. and human laws can equally be bad. ot only they can. but some of them are actually bad in many countries otherwi e end wed with a reasonably whol some legal sy tern.
me laws can be bad. as we air ady saw. because th yare unreasonable. unfit to serve their purpo e: we have already mention d them. Here it i enough to mention th fact that the proportion between rea on and the lack of it can vary extraordinarily. Morall speaking, their force of obligation goes in proportion to their rea onableness, and can disappear ornoletel when they ar foolish. 1'h 'y could be designated as more or less unreasonable laws.
1 e r mind the e erity of the puni hrnent. that Illy indirectl indi aror f the p \V r [0 oblig po e ed bv the la\ . Morali t tend' to di mi the notion of merely pcnal laws", but I think that to deny the e: i ten era gradation of binding fore i to den. vid nee: the arne morali t jump 0 cr a red traff li~ht with ut
cruple v hen there i no traf IC. no danger to an. one. and the light appear to be out of order. What make th lav binding i not it ha ing been appr vcd and promulgated. but the fact of being; ordinatio rationis.
Other la\ can be bad becau e the ha e been pr mulzated bv unlawful
authoritie or pa ed in an unlawful \ ay: that i a they are illigitimate. And yet.
the: sh uld not be di carded ea il. b. the citizen. a long a' th y ntribute to the common good: thi could be the ca e. for example. of law ena t cI bv di tatorial
acuurn of law generates anarchy. \ hi h i a eriou di ea e of the social
Finall there are truly bad lav . b
ome common e il that ore nt a g od realitie .lfth e it i in the major premi e. that i in the r j tion of natural law. that law i in it If vil and must be disobeyed. Thi obligati n t ppo e an evil law i not excu ed b. aying that one is obeying order. azi concentration camp and t. Thoma More7 are to example that typif the bad and good citizen behavior.
orne other law are bad because the mean engineered by the lav In rder t achie e a good purpo e are bad in them Ie. For d terilization could b an exarnnl of thi kind. Tn the e cases. the good objccti e. in 0 far a it i good. I11U t be pur ued: the mean impo ed by the lav mu t be rejected. and alternati e mean hould be ought after
The good man I11U t be a good citiz n: he annot have an arnbigu u atritud in front of human la . He I11U t 10 e and r ! ct it fully. \ hil av are of it fallibl nature: th refore \ hen ob ying, rejecting. or interor ting the lav he i pa sing a moral judgement that bind his consci nee. Th general moral law alv av pr vail. pr vidina it
unique obligatory moral force upon th th rv i legitimate-s-but limited-power of
coercion of human laws.
~ I hix i . ihe ici 'a iilai Olll i<lw~ UO 1I01 oblige iu consci nee: iii ere i . no I::ti1i(;(li vaiu auaclicd io 10110\\ iilg lkiil or not, aill1uugh iher i· punislnuetu ;;ila.:iI.:u to iii III if lile) <Ii ~ not Iuifiiled.
7 Thoma: ;\flun ... u ... in lin consci: iI~C (hi wa one ·f ihc ca: es in \\ hich i \\'(5 bounden dliii 1 i.ould not 00 ') in) prii.c . inee ihal. \",hat O~\ r other foi~ ii.ougi« vf iii tuauer ( \ ho ~OIb~i\"iI~l.. dJh..i ;(..(inljilg i \\ ould uoi ':vIlUCJ1l 11 riake UpUII me iu juJ' ).) L ill Iii) conscience Lil • truth . i1I\..d vii dl\.. vii,t.i ,iJ\.. ...
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