Lex, Rex

Summary

Lex, Rex: The Law and the Prince is Samuel Rutherford's answer, printed in London in October 1644, to Sacro-sancta Regum Majestas, a defence of royal absolutism by John Maxwell, the deposed bishop of Ross whom the Glasgow Assembly of 1638 had excommunicated. Rutherford wrote while Scotland and the English Parliament were allied against Charles I under the Solemn League and Covenant, and his long subtitle presents the book as a justification of Scotland's defensive wars and of its army's march to help its brethren in England. The library text is the 1644 edition in original spelling, complete except for the marginal notes. The book proceeds by forty-four disputed questions in the manner of the schools. Each states a question, lays down numbered assertions, and answers objections from Maxwell (whom Rutherford calls the P. Prelate) and from other royalist writers such as William Barclay, Henry Ferne and Edward Symmons. Scripture is the chief authority, set beside Aristotle, Roman law, the Fathers and Scottish history. The opening questions hold that government in general is from God and agreeable to the law of nature, but that the particular form of government and the choice of the person who rules come from God by means of the people. Men are born equally free, Rutherford argues, so no man is by nature king over another. The middle questions treat the king's power as conditional and held in trust. The people make a king by covenant, as Israel's elders did with David at Hebron; his dominion is fiduciary and ministerial rather than that of a master over goods; and the law of the king in Deuteronomy 17 binds him. Inferior judges and parliaments are true judges, not the king's servants. In question XXVI Rutherford concludes that the law stands above the king in constitution, direction and limitation, though not in the sense that a king punishes himself. The later questions apply this to resistance. Rutherford distinguishes the king's person from his office and argues that Romans 13 commands obedience to lawful power, not to its abuse. A people, and their estates, may defend themselves by arms against a ruler who turns the sword on the commonwealth. A private man should first plead and, where he can, flee before using force, as David did; a whole community, with its aged, sick and infants, is not bound to flee, but the people should suffer much before they resume their power. Patient suffering and lawful self-defence, he says, can stand together in a Christian. The closing questions ask whether monarchy is best (he judges a lawful and limited monarchy best for fallen men), deny borrowing Jesuit doctrine, and set out the laws and coronation oath of Scotland. After the Restoration the book was ordered to be burned, and Rutherford was summoned on a charge of treason but died before trial. Lex, Rex is regarded as one of the fullest statements of Reformed resistance theory and of the principle that the ruler is under the law.

Top Lessons

• The ruler stands under the law he enforces

  Rutherford's title reverses the royalist maxim that the king is the law: the law is king. In question XXVI he argues that a king exists only by a law that makes this man rather than another king, so the law is prior to him and limits him. The king may be called a living law, but only as the law put into practice.

• Authority comes from God by way of the people

  Rutherford keeps two claims together that his opponents set against each other. Government is God's ordinance, and Romans 13 binds the conscience to it; yet God gives a particular ruler through the consent of a community, as Israel made Saul and David kings. A covenant between king and people, he argues, binds both sides before God.

• Distinguishing the office from the person

  The heart of Rutherford's case for defensive war is a distinction: the office of the king is from God and must be obeyed, but a ruler who commands unlawful violence is not using that office. Resisting the abuse, he argues, is not resisting the ordinance. He sets limits: a private man must first plead and, where flight is possible, flee before using force, and a people should suffer much before acting through their estates.

• Disputation as a way of reasoning in public

  Lex, Rex is written as forty-four disputed questions, each with assertions, objections and answers. The form makes Rutherford state his opponents' arguments, often in their own words, before replying. Following one question through shows how seventeenth-century divines argued from Scripture, natural law, Roman law and history together.

Verified Quotes

Medical Lens

Lex, Rex is a work of political theology with little medical content. Rutherford does use two analogies that a medical historian may notice. In question XIX he compares a ruler who turns his power against his people to a madman whose own sword may lawfully be taken from his hand, a common early modern image of the person who has lost the use of reason and with it the right to direct his own goods. In the same question he argues that an oath never to defend oneself would be as void as an oath to self-murder, drawing on the moral theology of the period that treated self-preservation as a precept of natural law and suicide as its gravest violation.

• Question XIX

  The analogy of taking a sword from a madman's hand is used to justify withdrawing fiduciary power from a ruler who abuses it.

• Question XIX

  Rutherford likens swearing to give up self-preservation to swearing to self-murder, citing natural law's command to preserve one's own life.