Apparently, everyone—or at least those that made it past the “ethne” question—has made it to chapter seven (“The Christian Prince”) of Stephen Wolfe’s new bestseller, The Case for Christian Nationalism, and have promptly identified something new to freak out about. Per usual, the something new is actually something old. Also typical is that whilst provocative, Stephen is relatively (historically) mild mannered in his presentation. No one blowing a gasket on Twitter dot com is engaging with the idea(s) in good faith. Just the word “prince” or anything approximating the monarchical is enough to send evang-jelly types into orbit. Their busted brains—it all looks like something out of the last scene in Raiders of the Lost Ark—can only manage to conjure up charges of “POPERY!”
Let me see if I can induce further consternation. Hysterical critics have totally skipped over a brief section in the prior chapter on “Civil Law,” wherein Stephen affirms an entirely classical notion, the lex animata (living law). I wish he’d said a little more because it will surely induce more panic, especially the libertarian “constitutionalists.” Let’s throw some more fuel on that fire, but not just to own the libs. This is interesting stuff.
First, the passage in question:
“Civil laws in themselves have no force; they are, as Cicero said, a mutus magistratus or a dumb magistrate. Civil law has command only when enlivened by the magistrate, for magistratus les est loquens (‘The magistrate is the living law’), as Cicero said. As Bullinger writes, only through magistrates do laws ‘shew forth their strength and lively force.’ Furthermore, since magistrates make judgments with a view to the common good, magistrates must be prudent. They must be capable not only of discerning the public good… but have the public’s good at heart.”
Second, indulge a lengthy quote (from someone almost as odious as Stephen Wolfe):
“For although a just Prince will not take the life of any of his Subjects without a cleare Law: Yet the same Lawes, whereby he taketh them, are made by himselfe, or his predecessors. And so the power flowes alwayes from himselfe: As by daily experience we see, good and just Princes will from time to time make new lawes and statutes, adjoyning the penalties to the breakers thereof: which before the Law was made, had bin no crime to the subject to have committed.
Not that I deny the old definition of a King, and of a law; which makes the King to be a speaking Law, and the Law a dumb King: for certainely a King, that governes not by law, can neither bee countable to God for his administration, nor have a happie and established Raigne. For albeit it bee true that I have at length proved, that the King is above the Law, as both the Author, and giver of strength thereto: yet a good King, will not onely delight to rule his subjects by the Law; but even will conforme himselfe in his own actions therunto, alwayes keeping that ground, that the health of the common-wealth be his chiefe Law. And where he sees the Law doubt-some or rigorous, he may interpret or mittigate the same: lest otherwise Summum jus be summa injuria [extreme justice be extreme law].[1] And therfore generall lawes, made publikely in Parliament, may upon knowne respects to the King by his authority be mittigated, and suspended upon causes only knowne to him. As likewise, although I have said, a good king will frame all his actions to be according to the Law: yet is hee not bound thereto but of his good will, and for good example giving to his subjects.” [emphasis added]
That’s James I/VI in his The True Law of Free Monarchy, or the Reciprocall and Mutuall Duty Betwixt a Free King and His Natural Subjects (1598).
Of course, the reader might dismiss the last capable monarch to actually rule England on this point on the assumption of self-interest. But foreign, theologians concurred. Look back to Wycliffe’s De Officio Regis, which held that a king was not subject to positive law but obeyed it only voluntarily, for he was solutus legibus [free from or not bound by laws—a classic term in the continental civil law attributed to the emperor], even as he was governed in his person (and according to judgment) but the higher law.
Heinrich Bullinger, to whom Stephen has already appealed in his chapter (and does earlier in the chapter as well), defines magistrate as the lex animata, the living law,
“[I]t is a wonder to see the folly of some Christians, since the very heathens have given so honest report of laws and lawgivers. They took their lawgivers for gods, confessing thereby that good laws are the gift of God… For laws undoubtedly are the strongest sinews of the commonweal, and life of the magistrates: so that neither the magistrates can without the laws conveniently live and rule the weal public, nor the laws without the magistrates shew forth their strength and lively force… By executing and applying the law, the law is made to live and speak.” [Decades, sermon II.7]
Torrance Kirby commenting on Bullinger:
“By virtue of his sacred office as the living law (lex animata), the Prince animates the entirety of his realm, both civil and ecclesiastical. As the very soul of the body politic the godly prince is charged with the duty of leading his subjects into the way of true religion and virtue and guarding them against the false.” [“The Civil Magistrate and the cura religionis,” p. 937].
This is the old legal principle, well established and fully rendered as princeps est lex animata in terries, “the prince is the law animate on earth,” regularly repeated by medieval glossators of Justinian’s Corpus Juris Civillis and Novellae Constitutiones.
Now, this does not negate the category of tyranny. Bullinger:
“The prince, indeed, is the living law, if his mind obey the written laws, and square not from the law of nature… for unless the prince in his heart agree with the law, in his breast do write the law, and in his words and deeds express the law, he is not worthy to be called a good man, much less a prince.”
And yet,
“Again, a good prince and magistrate hath power over the law, and is master of the laws, not that they may turn, put out, undo, make and unmake, them as they list at their pleasure; but because he may put them in practice among the people, apply them to the necessity of the state, and attemper their interpretation to the meaning of the maker.” [emphasis added]
But the principle does supply the prince, the magistrate, the king with immense discretion, and further, a duty to embody the law but also a metaphysical claim that the prince is a living law, the law incarnate, and this as the vicar of God to the people (though not the vicar of Christ)—alternatively, as the representative of Christ’s godhead but not Christ’s body, or so the formulation went.
It might be a “dead” constitution that is expounded, but he who executes and applies that constitution, in fact, constitutes the living law, a prerequisite for justice unto living beings.
And he does this through what we might call determinations of determinations. This is what animates the law. It is not simply that living people are reading and interpreting the law, but rather that he who has care of the community—and is, indeed, bound up with it—is tailoring the law for the common good without abrogating it. By avoiding rigidity—i.e., absurd outcomes—he determines prior determinations, conforming the lex according to the ius for iustitia.
In this sense, the king (or executive) is inventing (positive) law, not merely interpreting or deriving it. He is the law animate, not merely the law speaking (iudex est lex loquens). An enlightenment-positivist view casts judges as “mouthpieces of the law,” and, therefore, independent and above other vectors of governmental power. Here judges are inanimate interpreters, a posture that infers that the law is fixed, and its application predetermined—there is no need for it to be living. Indeed, the point is to eliminate discretion, discrepancies, and executive prerogative (considered arbitrary). Predictability and (apparent) stability is the highest virtue in the enlightenment (positivist) legal paradigm—they also require a pluralistic conception of sovereignty.
A kingly type of discretion is absolutely necessary for a just legal regime. (Contemporary examples: think of veto power and prosecutorial discretion, etc.) But we might posit that whatever figure or body possesses a judicial review function possesses the true discretionary role, and thereby is the lex animata. (Of course, if that discretionary body then delegates by fiat the right of determination—of, say, the meaning of the mystery of life itself—to the commons, then it is pure democracy installed and, what’s worse, a functional, if heretical, lex animata over even the higher law.)
In any case, however topsy-turvy things might be in our present regime, theoretically, the alternative to such a magisterial position is what Twitter midwits have accused Stephen of, viz., papalism. Indeed, it cannot be denied that animating Marsilius, Ockham, Wycliff, Erastus, and Bullinger (and, especially later Erastians like Richard Hooker) was anti-clericalism and anti-papalism. That’s what’s funny. As J. N. Figgis points out, divine right theories from the fourteenth century onward were less diametrically opposed to papal authority as such, but rather were aimed at helping the church “by disendowing the clergy of their temporalities.” The effects, however, were instrumental to the development of Protestant states, the break with Rome.
Discarding this theory of the Christian prince as articulated by Stephen is like being a thorough Luddite and ditching the printing press: the Reformation wouldn’t have happened. No Frederick the Wise, no Luther. No Peace of Augsburg (1555) (cuius regio, eius religio, and, just as important, reservatum ecclesiasticum), no Protestant Europe. The ideal of the Christian prince is a necessary component of militant political Protestantism. (I say “militant” because alternative, more Catholic theories were always around and later reintroduced in England with more vigor; I’m generally skeptical of Erastian theories, but that’s not the point here). In many ways, the story of the Reformation is the triumph of thirteenth and fourteenth century monarchism in the state and conciliarism in the church.
[1] As the Michigan Court of Appeals said in Fulton v. Pontiac General Hospital, 160 Mich. App. 728, 734 (Mich. Ct. App. 1987), “Summum jus summa injuria, strict [or rigid] law is sometimes the greatest injustice.” Bullinger cites the same phrase in Decades, sermon II.7 calling it an “old and accustomed proverb,” and which he seems to find in Erasmus.