historical and political thought in the seventeenth - RePub - Erasmus ...

Chapter 8. The science of politics. The Institutiones politicae
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The law is a certain rule that is laid down by the authority of the
highest magistrates or by the common consensus of the citizens. The
law either commands what, and how something must be done, or it
prohibits what must not be done, for the sake of obtaining the good
of all or for the sake of diverting evil. It is like a decidedly steadfast
magistrate, and without emotion, without favouritism, and hatred, as
Tullius somewhere says. 151
Second, every law finds its origin in reason. 152 This reason, that is, the logic
behind a certain law and its specific advantage should, if they are not known,
be explained to the people, for men prefer to follow reason, and will ‘gladly
embrace’ a law, if they know its specific advantage. 153 This explains the importance
of eloquentia, but it also implies the need to communicate and to seek a
common understanding about what is logical and advantageous. Thus, the
laws themselves are the product of deliberation and the expression, if only
silently, of consent.
Laws come in different kinds of seizes and shapes. Boxhorn follows the
two-partite distinction between divine and human laws. Divine laws concern
themselves with religion and sacred matters. 154 Their main objective is
to ensure that (a) God is honoured. 155 Since they articulate the content of a
religion, divine laws are the main instruments to excite fear and obedience
151 Ibidem, I.9, pp. 121-22. ‘Lex autem ratio quaedam est, quae supremorum Magistratuum autoritate
vel communi consensu civitatis definita, aut jubet quid, & quomodo quidque agendum sit, aut
quod non agendum vetat, boni omnium obtinendi aut declinandi mali causa, constans quidem, & sine
affectu, sine gratia, & odio, ut Tullius alicubi loquitur, Magistratus.’ Probably Cicero, Pro Marcello, 9
[29]. See also Boxhorn, Institutiones politicae, I.5, p. 60. ‘Legem esse Magistratum sine affectu.’ For the
unpassionate character of the law and its importance, see also Aristotle, Politics, 1286a1 [III:15], p. 86.
‘Yet surely the ruler cannot dispense with the general principle which exists in law: and that is a better
ruler which is free from passion than that in which it is innate. Where as the law is passionless, passion
must always sway the heart of man.’ And ibidem, 1287a1 [III:16], p. 88. ‘Therefore he who bids the law
rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the
beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of
men. The law is reason unaffected by desire.’
152 Boxhorn refers to the introduction to the Rhetoric to Alexander, a work which he, as was common
at that time, attributed to Aristotle, but whose authorship is now questioned. In the introduction
[1420a25] the law is defined as ‘an utterance, determined by the common consent of the commonwealth, which
declares how things are to be done’. In the De Cive Hobbes had criticised this definition. Hobbes maintained
that Aristotle had confused the law, which he saw as the command from a sovereign authority, with an
agreement which he defined as a promise. See Hobbes, On the Citizen, pp. 154-55, with quote and reference
on p. 154.
153 Boxhorn, Institutiones politicae, I.3, p. 22, and I.9, p. 133, with quote there. ‘Quàm libenter quisque
utilitatem amplectitur, ita quoque legem, quam utilitatis causa esse novit.’
154 Ibidem, I.9, p. 131. ‘Suntque istae duorum generum, Divinae scilicet & Humanae. Divinae sunt,
quibus religio aut sacra aut aestimatio sacrorum praescribitur. Istae primae sunt, ia vinculum sunt
Rerumpubl. & nonnulla causa.’
155 Ibidem. ‘Ideo usitatum legistatoribus est in principio atque exordio legum primo hanc ponere
legem: Colendum esse Deum, quod vel ex ipso Cic. de LL. apparet.’ Actually Cicero, De natura deorum, I.115.