Separating the Universal and Natural from the Particular: The Mosaic Polity in Junius’s Legal Theory
In his legal theory in De politiae Mosis observatione, Junius remains true to his theological andjuridical roots. His work is methodologically sound and not confined to the question of the application of the Mosaic judicial laws only.
Rather, Junius begins by sketching out a general theory of law. The long and detailed preface of his book offers thereby two lines of reasoning basic to all of Junius's further arguments. One line of reasoning concerns the lives of human beings in all their common or particular forms. And the second line of reasonÂing turns into a general theory of law.[316] Junius develops this general theory of law in 38 theses in the main part of his book, moving from the general to the parts of the theory of law. The discussion of the 38 theses comprises eight chapters. After the first chapter (chap. 1.: De iusta legis definitione & divisione) Junius opens the discussion on the judicial/political laws of Moses at the end of the second chapter (chap. 2: De lege Mosis, et substantia illius in genere) with theses x.-xιι. Therefore, the major part of all 38 theses in the book is concerned with the judicial respectively political laws of Moses. But in the following six chapters Junius also consistently touches on the other parts of the Mosaic code and goes through several cases of application.[317]Junius's line of reasoning from the general to the particular is strongly sys- tematizising? It corresponds overall with steps that Junius goes through from the consideration of the general questions of law to specific ones regarding the judicial laws of Moses. The 38 theses mentioned above illustrate this impresÂsively as they are the very foundation of the tract De politiae Mosis observaÂtione^1 Junius starts out with a definition of law (lex) (thesis I.) as â€?an ordering of reason toward the common good'.
The one who is in care of the community establishes the law (lex).[318] [319] [320] [321] Then, Junius turns to the most comprehensive form of lex, the eternal law (lex aeterna), which is understood as God's immutable concept and form of reason for the universe, existing before and above all time. God's eternal law differs from the law that is informed and declared in time (lex informata & tradita in tempore) (th. ii.). According to Junius, the lex informata & tradita in tempore, again, divides into the natural law (lex naturalis) which informs creatures endowed with reason with common notions of nature - somewhat - participating in the lex aeterna through principles and concluÂsions on one hand, and the law that advenes to nature (naturae adveniens) (th. iii.-iv.), namely the divine law or human law, on the other hand. The divine law (lex divina) advenes to nature as it is infused (infUnditur), whereas the human law (lex humana) advenes to nature as being born from it (adnas- citur) (th. v.). What makes the lex divina unique for Junius, is that God infuses the lex divina into rational beings, even transcending reason. This descent from God is comparable to the lex naturalis, but different from the lex naturalis the lex divina also informs rational beings with common and individual notions beyond nature by a supernatural induction toward a supernatural end, viz. salÂvation (th. vι.).63How do human beings embrace these different forms of law overall? Reason enables them to accommodate a human law (lex humana) to the lex naturaÂlis and the lex divina through common conclusions (communes conclusiones) or particular determinations (particulares determinationes). Common conÂclusions are based on just, honest, useful and necessary reasons, whereas the particular determinations conform to persons, things or matters, and circumÂstances (th. vιι.).64 As the lex naturalis and the lex divina, again, proceed from the eternal law, the â€?immutable archetype of law’,[322] [323] [324] [325] one may conclude, that all â€?good' laws ultimately derive from its source, the eternal law of God. After this differentiation Junius draws our attention to the actual discussion of the laws of Moses. The Mosaic corpus of law is viewed as a perfect model and example (perfectum exemplum) of law, including the natural law (lex naturalis), divine law (lex divina), and human law (lex humana) (th. viii.). The theses folÂlowing thereafter all touch on the question of the application of Mosaic law. In the case of the lex naturalis and lex divina answers can be given easily (th. ix.). Regarding the lex humana and the Mosaic judicial laws (th. x.-xi.), however, furÂther differentiations are needed (th. xιι.-xxxvιι.).66 Before we can go into detail about the application of the Mosaic political laws to specific circumstances, it is useful to probe Junius’s differentiation between the natural law, the divine law, and human law a little further. In theÂsis viii. Junius links this differentiation to the common threefold division of the Mosaic law into moral law, ceremonial law, and judicial or political laws.67 For each type of law there exists a perfect example (perfectum exemplum) in the law of Moses according to Junius. He, then, further allocates: the natural law is declared in the moral commandments, the divine law in ceremonies as proofs or documents of grace (documenta gratiae), and the human law in politÂical and judicial precepts. This allocation, however, should not be understood as one mutually exclusive in Junius’s argumentation. The divine authorship of all parts of the Mosaic law already speaks against such an understanding (in this sense, one could also speak of all Mosaic laws as divine laws). Apparently, Junius does define a â€?more narrowly conceived’ divine law, consisting of proofs or documents of grace (documenta gratiae), perspicuous precepts (praecepta perspicua), types (typi), and ceremonies (ceremoniae)^ Junius calls this narrowly conceived divine law (lex divina) also supernatural divine law (lex divina supernaturalis), a law that God himself allotted to his church. There remain some tensions in Junius's distinctions between the divine, natural, and human law in their relation to the Mosaic law. How Junius really conceived this mixed form of Mosaic laws can be illusÂtrated in the following with the help of one of the examples that he chooses at the end of his book: the right of asylum in the case of an homicide and the creation of cities of asylum for the accused ones in Num. 35:9-34 and Deut. 19:1-10.74 The parallel passages Num. 35^-34∕Deut. 19:1-10 firstly draw distincÂtions between murder, the voluntary killing, and involuntary killing of a person as different forms of homicide. Secondly, the passages list corresponding forms of litigation and punishments for the perpetrators. For instance, a homicide, in which a person is killed, because someone shoves another out of hatred or throws something at them intentionally so that they die (Num. 35:20), is difÂferentiated from a homicide, in which no harm was intended, but was rather caused unintentionally (Num. 35:22-23). Accordingly, the Mosaic law, which Junius refers to, makes a difference between blood revenge, respectively the death sentence, in the case of a murder on one hand, and on the other hand, an asylum for perpetrators in refuge cities for their own protection, followed by a regular legal procedure in the case of an involuntary homicide, respectively homicide by accident. Whenever Junius spoke of an â€?example' (exemplum) of law, he did not mean the â€?expressed' or â€?distinctly defined form',77 but a sort of guiding principle that was given in the Mosaic law. In this case, he turned to Greek terminology and spoke of an â€?ectype' (εκτυπον) in the Mosaic law?8 Junius used the word â€?ectype' for an example of the divine and natural law. For an example of the human laws, he employed the term â€?antitype' (avτiτυπον), because a human law in itself could only be a sort of replica or â€?reproduced' counterpart of the divine and natural law for Junius?9 Thus, the terminology and the image of â€?ectypes' and â€?antitypes' would only sharpen Junius's differentiation between the immutable and mutable, eternal and temporary, general and particular laws of Moses. In the end these differentiations in his legal theory, most obvious in the aforementioned example, enabled him to carve out not only the valid parts of the moral law, but also of the judicial respectively political parts of the Mosaic code. Some of the political laws of Moses were still binding for Junius and in accordance with the common civil law, respectively the reasonable and uniÂversal moral and natural law. Junius was eager to demonstrate this with several examples and comparisons. However, he did not develop a whole compilaÂtion of the valid political laws of Moses. His focus was rather on a systematic approach to the Mosaic political laws and a method for the legislation to distinÂguish the reasonable common and natural parts of the political laws of Moses, which ultimately derive from God and the eternal law, from the transient parts. This method was meant to establish public order and quiet consciences for all Christians. Junius's method and overall concept of law was influenced by Stoic phiÂlosophy and Neostoicism, as Tobias Sarx has argued convincingly?0 and it remained highly rational. In the last two sections, we were able to further specÂify Junius's humanist and Calvinist background that influenced this method and legal theory. Well-educated in humanist jurisprudence, Junius turned to Roman law principles and considered the common law (ius commune) as well as common reason and analogical interpretations of law as universal guide- lines.[338] He also relied on his teachers Calvin and Beza with their inner biblical interpretations of the political and ceremonial laws of Moses as appendices of the Decalogue respectively the common moral/ethical law of Moses. This is eviÂdent, for example, when Junius relates political (and ceremonial) parts of the pure or mixed laws of Moses back to the Decalogue as the summary of moral and natural law. Aside from the example of a mixed Mosaic law cited above, he covers three further examples of mixed Mosaic laws at the end of his book, which are likewise related to commandments of the Decalogue (the moral law)8[339]: precepts concerning the observance of the sabbath (cf. Exod. 20:9-11; Deut. 5:14 with i.a. Exod. 31:14-15),8[340] the purification for a homocide when the perpetrator is unknown (cf. Deut. 21:1-9),8[341] and the cases of apostasy (cf. Deut. 13; Deut. 17:2-7).8[342] The last example concerning the validity of Mosaic political laws on the punishment and death sentence for apostasy at the end of the book is by far the longest and again leads back to Junius's theological teachers John Calvin and Theodore Beza. Calvin and Beza addressed these particular Mosaic laws in their disputes with Michel Servet and Sebastian Castellio and held on to their validity in the case of apostasy[343] Beza, as we have seen, even went beyond Calvin when he concluded not only the validity of these law, but also the overall exemplary character of the political laws of Moses. There are no concrete references to these disputes, but Junius's arguments are similar. Is there maybe even more behind Junius's silence over these disputes and other specific confessional differences in his book De politiae Mosis observatione?. 6