Greece, Rome, and the Bill of Rights (14 page)

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Authors: Susan Ford Wiltshire

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prove troublesome to medieval Christian society and government.

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What has reappeared is the "natural man," whom Paul had pronounced washed away by baptism. Being incorporated into the Church had meant loss of autonomy from cradle to grave. Now the unipolarity of the individual as Christian gives way to the bipolarity of the individual as a natural person and as a Christian. The wholeness theory began to give way to departmentalization: persons as citizens, as moral agents, as religious practitioners. The individual as many-faceted citizen begins to replace the individual as subject to higher authority. Now citizens begin to take responsibility for shaping their communities and creating their lawsand now the ascending theme of government reappears after a long eclipse.
13
Even though most thinkers of the Renaissance still had to confront Aquinas's "double ordering" of things human and things divine,
14
social life by the fifteenth century could once again be considered a creation of human beings as it had been in ancient Athens and republican Rome. Now, however, individuals occupy a greatly enhanced role as decisive constituents of their communities.
The stage was now set for the "new thought" of the Enlightenment and for a thoroughgoing theory of natural rights inhering within the individual. Two common threads, rationalism and the rule of law, run through the ancient, medieval, and Enlightenment eras of natural law theory. The rationalist character of natural law theoryand the belief that human reason is sufficient to discern itgoes back to Aristotle and Stoic philosophy. The connection of natural law with human lawand thus a belief in the rule of law itselfgoes back to Rome and the "law of nations."
Three new features become prominently associated with natural law theory by the eighteenth century: the removal of the divinity from a central role in the doctrine; the emphasis on the freedom and agency of the individual in the public realm, as distinguished from the inner spiritual freedom promised by Stoic doctrine; and the assumption that the natural rights of individuals can justify the

 

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overthrow of governments. In short, natural law becomes radicalized.
Grotius and Pufendorf
Historians disagree on the role of Hugo Grotius of Holland (15831645) in the first transition, the removal of divinity from a central role in the doctrine of natural law, but by many he is considered a decisive source for the new thought.

15
Natural law theory underlies Grotius's
Laws of War and Peace
(1625), continuing intact the theory appropriated by Christendom even after medieval Christendom had been shattered by the Reformation, of which Grotius was a product. But Grotius holds in a famous dictum that natural law would be valid even if God did not exist:
etiamsi daremus non esse Deum
.

Although he believed in God and in a divine origin of natural laws, Grotius sees natural laws as absolutely valid, like the laws of mathematics, in such a way that even God could not change them. In the
Laws of War and Peace
he writes: ''Measureless as is the power of God, nevertheless it can be said that there are certain things over which that power does not extend.... Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil be not evil."
16
Grotius defines natural law in terms of the dictates of reason: "The law of nature [
ius naturale
] is a dictate of right reason which points out that an act, according as it is or is not in conformity with rational and social nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forgiven or enjoined by the author of nature, God."
17
The main contribution of Grotius was his systematizing of international law on the foundation of natural law. In separating natural law from theological ends, he did not necessarily act independently of theological influences. Nevertheless, he attached the old notion of natural law validated by the exercise of reason to the creation of an international legal systemand did so at a time of conflict between Catholics and Protestants, which gave the secu-

 

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larization new significance.

18
H. A. Rommen sees Grotius as a transitional figure between two great eras. While maintaining many ties from an earlier age, he ushered the theory of natural law into the modern period with the distinguishing characteristics of rationalism, sociality, and particular political aims.
19

It may have been Grotius who set in motion the sharp division between faith and reason that would result in a natural law theory free of theology, culminating in the Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen.
20
God may still have a place in natural law language, but it is largely a rhetorical place.
Ancient Epicurean philosophy upheld the existence of gods but located them in the remote spaces of the universe, where they lacked any interest in human affairs. There is something almost Epicurean about the remoteness now attributed to divinity in natural law theory. Sometimes known as Deism, this system of thought grants divine existence but not divine involvement in human matters. Nature's laws are discernible by human reason and do not require a God or gods to confirm their validity.
But there is a problem here. If, like two plus two equals four, natural laws are eternal and never change, then how do they relate to history, which is always changing? This fundamental issue was addressed by Renaissance thinkers in several ways. For his part, Grotius stood firm. He saw his legal theories as clear, coherent, and self-evident. To achieve such clarity, one must deal only in abstractions. Ragged facts must be stripped away. Grotius announces proudly that he has eschewed all facts: "With all truthfulness I aver that, just as the mathematicians treat their figures as abstracted from bodies, so in treating law I have withdrawn my mind from every particular fact."
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Following closely on Grotius was Samuel Pufendorf (16321694). Pufendorf was a German Protestant who worked in the courts of northern Europe, first Sweden and later Prussia. In 1658, at the age of twenty-six, he wrote the
Elementa jurisprudentiae universalis
, in which he

 

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praises Grotius and treats even Hobbes with respect. By the time he wrote
De iure naturae et gentium
in 1672 he had changed his views and came to a vigorous attack on Hobbes and the more radical theories of natural rights. He distinguished between "positive" and "negative" communities, holding that for a transition to be made from a negative natural state, where nobody owned anything, to a state of exclusive private property, express social arrangements had to be agreed upon. It was these general agreements for social utility that conferred rights. Rights, being derived from socially constructed agreements, could therefore not in turn be invoked against the agreements. They could be used, howeverand often wereto support authoritarian regimes.

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This was a critical turning point, a break in the tradition. From the point of Pufendorf on, it became fashionable to poke fun at the Scholastics and the marriage arranged by Aquinas between Aristotle and the Church. From this time henceforward, an anti-Aristotelian nominalism became, expressly or tacitly, the basis of philosophy.
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For Aristotle, "nature" referred not to a continuous process of change but rather to the "end" or terminus toward which something aims. This end was identical with the essence of the thing progressing toward it, and the ''good" it had "according to nature." Put another way, the essence of an oak tree is in the acorn, and the good end of the acorn is to become the oak tree it is meant to be.
The question, if it be a question, is whether human individuals and human institutions are oak trees. If an acorn at a tender age falls in with parasitic mistletoes or a mob of thorn trees, it will blithely continue on its good way to becoming an oak tree. A twelve-year-old child in analogous company might not be so unaffected.
Further, Aristotle, as we have seen, defines individuals as human by virtue of their membership in the polis or state. Politics, not nature, is the determining factor. Enlightenment thought in the tradition of Locke locates the essential worth of individuals not in their citizenship nor

 

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even in their creation by a Divinity but rather in their nature.
A third Aristotelian hallmark is the schism between
praxis
and
poesis,
that is, between exercise of reason and mere production. For Aristotle, production or
poesis
falls completely outside the realms of morals and politics, which alone define a truly human life. For Hobbes as well as Locke and the other liberals, activity in conquest, industry, and production came to be seen as creative and meaningful.
The aristocratic polis of men at leisure thus gives way to men of action. Similarly, the polis, corporate state, and
corpus Christi
give way to the social contract.
The Social Contract
The emphasis on the individual in natural law thought is signalled by the appearance of the social contract as the basis of civil society. The term "contract" contains the clue to the new arrangement. It implies the equality of the individuals involved because contracts are bilateral agreements made by two parties, each possessing independent status. Most observers consider the social contract as an entirely modern product,

24
although early origins have been discerned among the Greek Sophists, especially Protagoras.
25

Once individuals are considered autonomous human beings endowed with inherent natural rights, they are no longer "subjects" or mere "members" of a higher power. On the formal level, the contract implies the choice of entering into mutual obligations that exist by virtue of natural law. On the substantive level, it implies the bartering of the natural rights of individuals in exchange for achieving political and social organization. "The idea of contract," says A. P. d'Entrèves, "was the only possible means of setting the natural rights of the individual within the framework of the State."
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The third new component of natural law theory is the notion of natural rights flowing from it, a notion that

 

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can justify revolution if those rights are abrogated. In the medieval period one could disobey the ruling powers
if
the rulers were not acting in accord with the natural law. Peter Stein considers the importance of some of the early "glossators" or commentators on Roman law in this regard. Placentinus, for example, in commenting on a fragment declaring that anyone who disobeys the order of a magistrate is guilty of fraud, demonstrates a liberal outlook when he adds the qualification, "unless he is obeying the Gospel or natural law."

27
After the Reformation, Protestants tended to base their resistance to kings on history or scripture rather than on natural law. In neither case, however, was natural rights theory sufficient to support a right to political revolution.

The theory of the social contract is therefore related to natural law, now invoked to support the claim that human beings are individuals capable of making their own judgments and acting in their own behalf. The component ideas of this thesis were not new, namely, that individuals are born free and equal at least spiritually and that there was some sort of original state of nature. What was required was a "shift of accent" in order to arrive at the notion of society as an arrangement created by its members through the exercise of their own will.
28
That shift of accent is the emphasis on the individual.
Natural law, like Proteus, assumes different forms in different hands. By various theorists natural law has been identified with the divine, the rational, the distinctively human, the normally operating, the frequently recurring, the primitive, the elements not subject to human artifice or control, the self-evident, the nonhistorical.
29
While there is no one founder of liberal theory, there is a liberal theory tradition that would be far different without the influence of any one of the following: Hobbes, Locke, Montesquieu, Smith, Hume, Burke, and Mill.
The sum of their endeavors was to transform natural law from a basic order in the universe, determined by God's sovereign will, into a guarantee of individual rights and a basis for political equality. "The rational individual," observes Paul Sigmund, "rather than the ordered

 

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