Thus far, I have explained Hooker’s general scheme of law and given particular attention to his treatment of the law of reason. Already from what we have seen above, it should be apparent that in Hooker’s scheme, there can be no neat division of the field between civil affairs governed by the law of reason alone, common ground for believers and unbelievers, and ecclesiastical affairs governed by Scripture, since the law of reason is sufficiently obscured by sin so as to render further revelation all but indispensable. It is in Hooker’s treatment of “human law,” however, that the untenability of such a schema is most clearly revealed. For, Hooker will argue, human affairs are rarely governed directly by the law of reason or the divine law, but are necessarily governed by human positive law, which mediates these immutable laws into the realm of mutability, a realm that embraces all human affairs, civil as well as ecclesiastical.
Of course, here as elsewhere, Hooker opts for systematic fullness rather than moving straight to the particular points of tension. Since ch. 10, on human law, contains some of Hooker’s most important and influential engagement with political theory proper, I will give brief attention to its initial discussion of the origin of government before moving on to the crucial bits of his definition of human law.
In describing the origin of political society and government, Hooker seeks to synthesize the rival paradigms bequeathed to him, arguing that it is both natural and voluntary, both creational and postlapsarian. Civil society is a natural function of man’s physical limitaitons that require him to live in society with others, as well as the natural human desire for sociability. However, to be truly political, an additional element is necessary, “an order expresly or secretly agreed upon, touching the manner of their union in living together.” This contractual union “is that which we call the law of a common weale, the very soule of a politique body, the parts whereof are by law animated, held together, and set on worke in such actions as the common good requireth” (I.10.1) Such a union would have been natural and desirable even without sin, but not strictly necessary. With the advent of sin, however, if selfish men are to still pursue the common good, society requires not merely a contractual union, but a subjection to a higher authority who can constrain obedience when necessary. Under the conditions of sin, then, public government is required by natural law. In contrast to the patriarchalist political theory that arose later in the seventeenth-century, Hooker is explicit that, all men being free by nature, this subjection of the people to the government by their rulers must always flow from an act of free consent–no man is so superiorly endowed that he has a natural right to rule over his fellows. John Locke, indeed, was to deploy Hooker’s arguments in his attack on patriarchalism a century later. Unlike Locke, however, Hooker is perfectly content to leave this act of consent firmly in the past–inasmuch as our ancestors consented to the government under which we now live, we have consented to it through them–“Wherefore as any man’s deed past is good as long as him selfe continueth: so the act of a publique societie of men done five hundreth years sithence standeth as theirs, who presently are of the same societies, because corporations are immortal” (I.10.8).
Laws arose, says Hooker, because it was quickly seen to be “inconvenient” to rest all the power of governing in the hand of one man’s will. Laws, then, are promulgated by the body politic for the body politic, applying equally to all.
Laws are thus the product of free consent, but that does not mean that the body politic has infinite scope. No, human laws must conform in some respect to natural justice. They may do this in two ways. First there are laws which are mixedly human, in which “the matter whereunto it bindeth, is the same which reason necessarily doth require at our handes, and from the law of reason it differeth in the maner of binding only. For whereas men before stood bound in conscience to doe as the law of reason teacheth, they are now by vertue of humane law become constrainable, and if they outwardly transgresse, punishable” (I.10.10). These laws are made necessary by the ignorance and sloth of our intellects, which often fail to deduce what the law of reason requires of us in particular situations, and by our stubborn unwillingness to follow it even when we do comprehend it–human law thus specifies and makes punishable that which is already required by the law of reason. Or, human law may be “meerly humane,” in which cases “the matter of them is any thing which reason doth but probablie teach to be fit and convenient, so that till such time as law hath passed amongst men about it, of it selfe it bindeth no man” (I.10.10). So, for instance, laws of inheritance–in such cases, the law of reason states nothing definitely and clearly, and so we must, while still using it as a guide, improvise laws as our circumstances demand.
In either case, however, human laws will admit of enormous variety, applied as they are to an enormous range of different societies and circumstances:
“If it here be demaunded howe it commeth to passe that…there shoulde be found even in good lawes so great varietie as there is: wee must note the reason hereof to bee, the sundry particular endes whereunto the different disposition of that subject or matter, for which lawes are provided, causeth them to have especiall respect in making laws….To this appertaine those knowne lawes of making lawes, as that lawemakers must have an eye to the place where, and to the men amongst whome; that one kinde of lawes cannot serve for all kindes of regiment” (I.10.9).
This will be true even of mixedly human laws, which are simply applications of necessary principles of the law of reason–although the principle may be the same, the best way to apply the principle and achieve its desired end will differ depending on circumstances (this is particularly true of penology, which Hooker believes is left undetermined by the law of reason, contra theonomists old and new). Hooker has here introduced a theme that will be integral to the entire remainder of the Lawes of Ecclesiastical Polity–the provisionality and mutability of all human laws.
And of course, if “ecclesiastical polity” is to be his theme, it must follow that church laws too fall under the rubric of human law. This is precisely what Hooker says in a crucial statement in I.10.11: “Lawes whether mixtlie or meerelie humaine are made by politique socieities: some, onely as those societies are civilly united; some, as they are spiritually joyned and make such a body as we call the Church.” Hooker will return to this point later in Book I when speaking of the relationship of divine and positive law, and then will expound it at great length in Books II and III, where the nature and and limits of Scriptural law-making authority are thoroughly sifted.