Greece, Rome, and the Bill of Rights (15 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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universe, was now the starting point. The old hierarchies had disappeared. The earlier assumption that in all but the most obviously unjust societies the existing order represented God's will and reflected the order of the universe was now challenged by a new awareness of the possibilities of a restructuring of society by autonomous, rational, and equal individuals.''

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For some this is a great decline from the time of the older idea of natural law, which served as an ethical system with material content. As H. A. Rommen sees it, for example, the earlier function of natural law was to serve as a moral basis for positive law and to represent the ideal, eternal ends toward which the historical state should strive.
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We shall presently see, however, that at least in the Lockean tradition the moral element is not disjoined from the practical workings of the natural law.
Hobbes, Rousseau, Montesquieu
Before turning to John Locke as the central protagonist of this portion of the story, reference must be made to three other giants of his era: Thomas Hobbes (15881679), Jean Jacques Rousseau (17121778), and Montesquieu (16891755). In spite of the great differences among the three of them, and of all of them from Locke, they shared the conviction that a medieval or Aristotelian world view could no longer provide an adequate basis for political society. Modern science, empiricism, and powerful new intellectual currents all put society in need of new political foundations.
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These thinkers, influenced by the new ways of looking at nature, looked anew at social institutions. Knowledge itself came to be understood in new ways, not now as disinterested speculation and an end in itself, the highest form of Platonic or Aristotelian good, but as a tool or means for achieving human well-being. Similarly, these men came to understand that societal institutions had no fixed end or state apart from the human beings who comprised them.
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Hobbes, Locke, and Rousseau all shared a notion of the

 

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"pre-social" human being, which assumes that individuals exist prior to the social institutions they invent. Thus the task of political philosophy is to describe the nature of that individuality and then to proceed to an analysis of what the rights and obligations of those individuals would be in their state as citizens. Andrzej Rapaczynski summarizes the place of these three thinkers in the tradition of political thought:
A theory of natural law and natural right ... had a very long standing in political philosophy. But what distinguished the appeal to natural law in Hobbes, Locke, and Rousseau from the older political theories was their view that nature does not operate with the help of moral or quasi-moral norms: it does not prescribe, allow, or condemn, but forces, inclines, or incapacitates. The question that they, therefore, thought had to be answered before any natural law was used to legitimize a political system was whether the operation of the mechanical laws of nature provided a sufficient ground for inferring a system of normative principles.

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Hobbes was not a liberal but rather an important critic of liberalism who would later exercise enormous influence on Kant and Marx. A positivist and absolutist, he denied any element of teleology or ultimate direction in politics and transformed normative politics into a purely descriptive political science. In
Leviathan
(1651), Hobbes denied that human beings are by nature social beings but are instead moved only by selfishness and a desire for power. In the natural state, human society was in a condition of "a war of all against all." The solution was for individuals to give up or "alienate" their autonomy and their judgment to absolute rulers.
Locke would agree with Hobbes that primitive human liberties have to be alienated for political society to be created, but he would add that individuals need not give up their freedom of conscience in the process. For Locke, freedom of conscience is possible even while we obey the

 

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magistrates in all our actions, whereas Hobbes eliminates freedom of conscience as well as of action.

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Rousseau was a severe critic of natural law and the order of civil society proposed by liberals such as Locke. His polemic against the natural rights tradition stems from the radical break he posited between nature and society. For Rousseau, history replaces the natural order as the foundation of human rights. In his
Social Contract
(1762), Rousseau holds that men by nature are free and equal. The only way to reconcile with civil society their freedom and equality in the natural state is for human beings unanimously to surrender to the general will under collective, impartial laws. These laws, however, are particular to each nation and do not apply to humankind in general.
Rousseau sees productivity, a central Lockean thesis, as degrading to human lives, thus leaving very little room for Locke's ennobling and enriching interaction between nature and society. Finally, and perhaps most importantly, Rousseau considers individual autonomy in a rigidly formalistic way, as contrasted with Locke's more fluid and nonformalistic version. It was this insistence on freedom of the will from any determination that led to potentially totalitarian implications for Rousseau's fol-lowers such as Marx and Hegel.
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Montesquieu believed that laws underlay everything human, divine, and natural, and that through empirical investigation these laws could be discerned. The influence of his
Spirit of the Laws
(1748) was especially felt in the framers' determination to establish a mixed constitution and separation of powers as safeguards of human freedom. He was an Aristotelian in his commitment to moderation in politics, which contributed to his elaboration of a system of checks and balances far more intricate than the one proposed by Locke.
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If our focus were on the history of the political thought underlying the body of the U.S. Constitution promulgated in 1787, Montesquieu would occupy a post of central importance. But for the genealogy of the natural rights

 

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theory leading to the Bill of Rights, we turn instead to John Locke.
The Achievement of John Locke
If Charles Dickens had written a novel along the lines of the present inquiry, his uncanny gift for diagnostic names could not have improved on that of the individual who enters the story next. Like a lock in a canal, which raises the water from one elevation to another, John Locke (16321704) elevated the status of individual rights for subsequent Western political theory. Thomas Erskine, in his speech in defense of Thomas Hardy in his trial for high treason, referred to Locke as "the man, next to Sir Isaac Newton of the greatest strength of understanding which the English, perhaps, ever had."

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By temperament as well as experience and intellect, Locke was ideally suited for appropriation by American thinkers of the eighteenth century. His classical education, active engagement in politics, and intellectual brilliance formed him in ways readily adaptable to American thought. Locke's father, a liberal Puritan and attorney who had fought on the side of Parliament in the first rebellion against Charles I, inculcated in his son the values of simplicity, temperance, and tolerance. Locke studied classics, Hebrew, and Arabic, first at Westminster School, then at Oxford, where he developed an aversion to Scholastic philosophy while being exposed to many new forms of thinking, including empirical science and medicine.
After a period of lecturing in Latin, Greek, and moral philosophy, Locke became increasingly involved with the intellectual and political movements of his time. As an assistant to Lord Ashley, earl of Shaftesbury, he helped frame a constitution for the colony of Carolina. His service as secretary to the Council of Trade and Plantations was further evidence of his ability and ease in the world of practical politics. Prolonged visits to Paris and Holland introduced him to some of the leading thinkers of his period.

 

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His close association with Shaftesbury, who was tried for treason after leading the parliamentary opposition to the Stuarts, forced Locke to flee to Holland, where he wrote his first published works. He supported the successful revolution, which put William of Orange on the throne, then returned to England in 1689 escorting the future Queen Mary. From that time until shortly before his death, Locke served in various official and unofficial political capacities while writing voluminously on philosophy, religious toleration, education, and politics.
Locke's Opposition to Innate Ideas
Central to Locke's political thought was his philosophical opposition to the theory of innate ideas. Unlike Plato, he firmly believed that we derive our ideas from experience; no realm of ideas exists apart from the experience of human beings. Similarly, no general principles exist to which everyone gives assent. Locke did hold that there are eternal principles of morality, which human beings may come to through reason, experience, and reflection, but even these are not innate. There is no one truth of things, he would say; life is not neat. Locke's conviction on this point was so steadfast that he was willing to live with any theoretical inconsistencies that might follow on it for the sake of the common sense it permitted.

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Locke broke through much of the prevailing thought about the human condition by holding that we are all "short-sighted." He came to understand that the only reliable thing that can be said about human knowledge is that it is, and can be, only partial. This simple truth has enormous consequences, because it means that any form of authoritarianism, whether intellectual or political, is based on the false premise that one person or system has all the answers.
Locke's attack on the doctrine of innate ideas could seem to compromise his belief in natural law. He deals with this dilemma by holding that while moral ideas are not innate, they may be arrived at by rational individuals. In the passage in which he attacks innate ideas, he explic-

 

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itly upholds his belief in natural law: "There is a great deal of difference between an innate law and a law of nature; between something imprinted on our minds in the very original and something that we, being ignorant of, may attain to the knowledge of, by the use and due application of our natural facilities."

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For Locke, the problem of innate ideas is closely related to the problem of political authoritarianism. If ideas are innate, they lie outside the empirical realm and thus beyond the scrutiny of reason. In religious and intellectual matters as well as political, this encourages unquestioning assent to any ideas that are claimed to be fixed and unchangingand to those who profess them.
Two Treatises of Government
Locke published his
Two Treatises of Government
anonymously in 1690, acknowledging his authorship through a codicil to his will only after his death. Called by one observer "the most influential work on natural law ever written,"
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Two Treatises
was no disembodied speculation from the study but was born of the pressing politics of the day. In his preface he acknowledged that his purpose was to help establish the title of King William, "Our Great Restorer," to the throne.
The pressing issue which
Two Treatises
is meant to address is arbitrary and absolutist government. Here Locke launches a powerful attack against the most popular justification for royalist absolutism of his time, the political tracts of Sir Robert Filmer (15881652). Locke offers instead a radical constitutionalist theory of popular sovereignty and an individualist theory of resistance. Against the prevailing Whig convention of appealing to history, Locke formulates his arguments in the language of natural law and rights. "This move is completely understandable," observes James Tully, "in light of Locke's reconstruction of the epistemological superiority of natural law theory and his complementary dismissal of any theoretical appeal to history.... If Locke's project was to appear at all plausible to his immediate audience, he had

 

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