Augustine and the Law: What’s The Difference between a Kingdom and a Band of Robbers

Augustine of Hippo (354 to 430 AD) is, after St Paul, the Christian thinker who has had the most influence on the West. Born to a pagan father and a Christian mother, he tried out Manicheism (the belief that good and evil are equal and opposite forces locked in an eternal battle) and Neoplatonism (a Roman version of the ideas of the Greek philosopher Plato) before becoming a Christian himself. He wrote Confessions, one of the earliest biographies, a large number of letters, sermons and other works, but his magnum opus was The City of God, a work in which he set out to make sense of the Christian worldview in the aftermath of the barbarian sacking of Rome.

Augustine worked and wrote at the end of history, at the fall of the Roman Empire, at a time when the certainties of the last millennium were all being dismantled. In that context, he thought long and hard about what law is and what law ought to be.

Augustine’s four big ideas about law are:

1. Every legal system reflects and protects the common objects of love of those who are part of the system;
2. Laws can be like the rules which apply within a band of robbers; they state how the winners will divide up the spoils but they can allow the winners to exploit others;
3. Human lawmaking power is derived from God and therefore human justice ought to echo God’s justice;
4. Therefore, although every legal system claims that its laws are just, Christians should always be prepared to question and challenge the laws if they are actually unjust.

Every legal system reflects and protects the common objects of love of those who are part of the system

The Roman Empire claimed that its laws were just, that its laws were an almost perfect reflection of the natural law (ius naturale) and the law of the nations (ius gentium). Augustine sets out in The City of God to demolish those claims. Justice (iustitia) was, for Augustine, already a technical theological term, being the Latin translation of the Greek word dikaiosune used in the New Testament writings to describe the work of Jesus Christ and translated in most English bibles as “righteousness”. Augustine denied that the epithet justice could be applied to the Roman Empire, even under Constantine, the emperor who converted to Christianity, and his successors.  For Augustine, as a matter of theology God alone is just, and true justice is to be found only in Christ.  Human justice was on such a different plane from divine justice that it was not worthy of being called by the same name.  Augustine’s conclusion was therefore that only a perfect society, only a heavenly city, could properly be called just. Earthly societies were united not by a common understanding of justice but rather by the common objects of their love, whose commonality enabled the achievement of a relative degree of peace in the society.

Laws can be like the rules which apply within a band of robbers; they state how the winners will divide up the spoils but they can allow the winners to exploit others

In The City of Law book IV chapter 4, Augustine asks the question: “Justice being taken away, then, what are kingdoms but great robberies?  For what are robberies themselves, but little kingdoms?” This question is prompted by a story of what a captured pirate said to Alexander the Great.

The text of The City of God book IV chapter 4 is as follows:

“Justice being taken away, then, what are kingdoms but great robberies?  For what are robberies themselves, but little kingdoms?  The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of confederacy; the booty is divided by the law agreed on.   If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues people, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity.  Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized.  For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor.”

What’s the moral of this story? Is the moral that the only difference between a kingdom and a band of robbers is one of size? Is the moral that justice is the key difference between a kingdom and a band of robbers, and therefore only if a kingdom pursues justice in its laws are those laws authoritative? Nigel Simmonds challenges legal positivism in Law as a Moral Idea on the basis that law is only intelligible as law, is only experienced as law rather than as mere violence, in so far as it makes a plausible claim that its enactments are right. If there is no plausible reason for regarding a law as just, it is simply a declaration of the circumstances in which the government intends to impose its will.

Augustine is, in fact, making a more subtle, and surprising point: any organisation, in order to be successful, has to operate according to laws. Robber bands have a legal system inter se. If authority, consent, and agreement as to how to share the spoils break down, you end up with everyone killing everyone else, as happens in the film Reservoir Dogs.

We can find in Augustine’s band-of-robbers argument three strands, or three dimensions, to law’s authority. First, the claim to have the right to make the rules (the robber band “is ruled by the authority of a prince”). Second, the claim that the rules are morally in order (the robber band “is knit together by the pact of confederacy”) and third: the rules are followed by those to whom they apply (“the booty is divided by the law agreed on”).

What is striking about Augustine’s argument is how it highlights that laws and legal systems can treat some people as subjects and others as objects. Social life, even amongst a band of robbers, depends on discipline and co-operation.  It requires the propagation of a view of justice with regard to the internal division of spoils, but this may be pursued at the expense of those who are not part of the band. On this reading, Augustine contends that systems of rules may constitute legal systems normative for those who benefit from them whilst at the same time amounting to nothing more than violence towards those who are only exploited by them. To put it in blunt terms, a system which allows chattel slavery is a legal system for those who are not enslaved but is simply a regime of organised violence for those who are enslaved. As such, the unjust laws have no moral authority over those who are enslaved. Offering them no benefits and no protection against violence, they have no reason to obey those laws.

Human lawmaking power is derived from God and therefore human justice ought to echo God’s justice

In The Free Choice of the Will (written between 388 and 395 AD), Augustine suggests that it would be better to declare that a law is not a law at all, than to say that it is a law but it is an unjust law. Further on, Augustine says that “nothing in the temporal law is just and legitimate which human beings have not derived from the eternal law.” Augustine then adopts Ulpian’s classical definition of justice as “the virtue by which each receives his due.” The eternal law, revealed in creation and in the Bible, supplies the content for what is due to people. Temporal laws, laws made by human beings, must be derived from the eternal law, though they may, Augustine concedes, permit things for the sake of the common welfare, leaving many things unpunished and to be redressed by God.

Because the eternal law is reflected in creation, the natural law sets boundaries which human law ought to reflect. Natural law was an idea thinkers such as Plato, Aristotle, and Cicero had promoted as a standard against which rulers could be judged. Augustine endorsed the idea of natural law and integrated it into Christian thought.

An unjust law is, therefore, for the early Augustine, a law which contradicts the natural law, a law which not only leaves some injustices unpunished but which actively promotes or requires injustice.

Therefore, although every legal system claims that its laws are just, Christians should always be prepared to question and challenge the laws if they are actually unjust

Augustine was not a philosopher of law, he was not a constitutional theorist. In On the Free Choice of the Will, Augustine was trying to understand how human beings have free will. In that context, the relevant question to ask of any law is: ought I to obey this law?, am I bound in conscience to obey this law? Augustine’s answer is that if the law is unjust, you ought not to obey it. Laws claim to have authority. Any law comes with the claim that obeying the law is the right thing to do, or at least that obeying the law is not the wrong thing to do. The German legal philosopher Robert Alexy calls this the claim to moral correctness. A law whose claim is obviously false, because it is wholly unjust, is totally lacking in the authority it claims to have, and therefore the answer: ought I to obey this law?, is no.

For Augustine, natural law is a critical, objective, standard against which any legal system can be measured. Augustine saw justice as essential to law. Rules only amount to laws if they make a plausible claim to be morally in order. Rules which do not make such a claim are not laws. Laws which make such a claim but whose claim fails are not authoritative, they need not be obeyed. Legal systems can treat some people as subjects and others as objects. They can offer a vision of justice to those who benefit from the system whilst permitting or failing to prevent others from being oppressed, excluded, or violated. Such laws are abhorrent, because they are contrary to natural law.

Conclusion

Augustine, whose ways of thinking about the Church and grace continue to inspire theologians today, also gave lawyers and all Christians who need to decide whether to obey or challenge the law a framework for understanding what law is and what law ought to be. You read find out more about Augustine’s thought in The End of Law: How Law’s Claims relate to Law’s Aims. We will look at the way in Augustine’s ideas were taken up and developed in the next essay in this series on Thomas Aquinas.