Greece, Rome, and the Bill of Rights (17 page)

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Authors: Susan Ford Wiltshire

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

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Locke's arguments depend on his theological commitments.

63
The cogency of many of Locke's arguments, says Dunn, depends on a defensible theology, and we have no reason not to think that Locke himself would concur with this judgment.
64
Some would place Locke in the tradition of more explicitly theological writers. Skinner observes that Locke reiterates some of the most basic tenets of the Jesuit and Dominican thinkers, including the central role of natural law, the extrapolation of political theory from an original state of nature, and the belief that natural law must be treated as the will of God.
65

Locke thus represents a new chapter in the history of natural law, which had risen originally out of the combination of Stoic theory with Christianity. This combination held sway in the theology, jurisprudence, politics, and history of the Middle Ages for a thousand years. Ernst Troeltsch points out that even when this system gave way to a more radical doctrine of natural human rights, a doctrine that almost always is found on the radical and progressive side, it still evolved from the mostly conservative natural law of the Church: "Secular and progressive as it may be, this new Natural Law still continues, none the less, to find its basis in God's ordinance. It is closely connected with rationalistic theology: it can even be the ally of Calvinism, in the extreme forms of that doctrine. With all its zest for progress, the theory still remains moderate: it retains a conservative and bourgeois character."
66
James Gordon Clapp summarizes the reach and depth of Locke's influence as follows:
Locke's influence was wide and deep. In political, religious, educational, and philosophical thought he inspired the leading minds in England, France, America, and to some extent, Germany. He disposed of the exaggerated rationalism of Descartes and Spinoza; he laid the groundwork for a new empiricism and advanced the claims for experimentalism.... In America, his influence on Jonathan Edwards, Hamilton, and Jefferson was decisive. Locke's zeal for truth as he saw it was stronger than his passion for dialectical and logical niceness, and this may

 

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account for the fact that his works prepared the ground for action as well as thought.

67

The contrast between the attitudes of Locke and Hobbes toward law proved to be decisive for what followed. Hobbes, in spite of his pessimism, constructed his entire system around the assumption that human rationality is capable of finding out the natural laws. Otherwise Leviathan cannot be created. Locke also is pessimistic, but his pessimism manifests a deep antirationalism. Abrams points out that for Locke, reason is inextricably bound with interest and prejudice. Law, on the other hand, is independent of human irrationality; it expresses the incontrovertible will and more dependable rationality of God. Locke's ultimate invocation is therefore not to a rationalized instinct for self-preservation but to the will of God's order.
68
The English Bill of Rights
Contemporary with Locke was the English Bill of Rights, which resulted from the combination of feudal compacts, Magna Carta, natural law, and Roman law. Early in 1689, a convention gathered to replace the discredited James II with William of Orange. It drew up a Declaration of Rights, which was promulgated eight months later in statutory form as the Bill of Rights.
69
William and Mary agreed to accept the Bill of Rights in what is known as the Glorious Revolution.
The English Bill of Rights did not contain new laws but was instead aimed at preventing the arbitrary practices of James II and the other Stuart monarchs. It included clauses that forbade the monarch to keep a standing army in peacetime without consent of Parliament; provided free elections of members of Parliament and absolute freedom of speech in parliamentary debates; required parliamentary approval before the monarch could suspend laws of the land or levy taxes; stipulated the proper empanelment of jurors in criminal trials; brought an end to excessive bail, fines, and cruel and unusual punishments;

 

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and required frequent meetings of Parliament. At the conclusion of its thirteen clauses, it states: "And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties."

70

A revolution would be required in the American colonies before a new Constitution with a Bill of Rights could be written for America. What happened to turn an abstract theory of natural law into inspiration for a revolution? How did a notion stripped of "every particular fact" when promulgated by someone like Grotius turn into a road map for forays into the untidy turns of revolution and power politics? In addition to Locke's midwifery and such precedents as Magna Carta and the English Bill of Rights, the answer lies to a surprising degree in the meaning of certain words and in the assimilation of Roman law to natural law and the new ways of thinking.
Contributions of Roman Law to the New Thought
The Roman law element in natural law placed individual liberties strictly within the human enterprise. This was because that was where the locus of Roman law always lay. Michel Villey has shown that the Romans and the early Roman law glossators never possessed any subjective concept of right. For them
ius
always meant something
objective
, that is, what is right in a particular situation.
Ius
seemed to mean something objectively right and discoverable by law, often in issues having to do with land or other private, bilateral relationships.
71
The Latin term for "law" (
ius
), as in "law of nations" (
ius gentium
) and "natural law" (
ius naturale
), had two meanings. It could refer both to objective
rules
of action and subjective
rights
to act. Lawyers trained in Roman jurisprudence learned to distinguish between these two references but did not see them as antithetical. Thomas Hobbes contrasted the two meanings, exploiting the difference between the terms
ius
and
lex
, rights and law, by insisting that they ought to be distinguished ''because RIGHT consisteth in liberty to do, or to forbeare; Whereas, LAW determineth, and bindest to one of them:

 

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so that Law, and Right, differ as much, as Obligation, and Liberty."

72

More than the interpretation of words, however, was at stake. The sociopolitical culture of the medieval period was also changing. The descending theory of government that dominated the early Middle Ages flowed from an abstraction, the theory of the divine right of rulers. It was a seamless theory, unflawed except in one detail: it did not take into account the ragged edges of real experience. Abstractions are deadly because they discount the complexities of things. Any idea dehumanizes if it is the only idea one has. In the closed systems of classical antiquity, even those with an ascending theme of government, only the citizens, a minority of the entire population, had full status as persons. In the scheme of the Middle Ages, the ruler and the Church had the "one idea" of divinely ordained power, with individuals considered mere subjects within their spheres.
With a return of the Aristotelian idea of the state as a collection of persons, grown up in accordance with the laws of nature without theological intervention, comes the return of the citizen. These citizens, however, are no longer individuals who are subjects to higher authority but individuals who act on their own authority. The concepts of state and citizen are dangerous to the corporational structure of medieval Christian society and government because they imply the autonomy of persons. Once those concepts are in place, the unipolarity of Christian culture gives way to bipolarity as individuals become both Christians
and
citizens.
Hans Julius Wolff discusses the ways in which Roman law provided the emerging natural rights theory with a political, legal, and civic basis. Out of its long history, natural law theory now joined with positive law for the benefit of the citizen rather than of the corporation:
The Protestant rationalists, in their quest for the true natural foundations of human life, as conforming to and perceivable by reason, again raised the postulate of an absolute law, and thus found themselves in line with a long tradition. Refusing to

 

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