Wednesday, September 4, 2019

How did beliefs about individual rights travel from Cicero to Locke?

This rather long post follows on from one in which I asked how we got from natural law to natural rights. In case you are wondering, the “we” referred to are people who currently have relatively broad scope to exercise natural rights to liberty. 

I concluded the preceding post by suggesting that many of the ingredients of John Locke’s view of liberty and natural rights, enunciated in the 17th century, were already present in Cicero’s account of natural law from the 1st century BC.

This post is about the ways in which beliefs about individual rights were transmitted, or evolved, over time. When people think about the transmission or evolution of beliefs and shared values it is common to have in mind a process in which books and other media are maintained or rediscovered, and thinkers reject or build on the premises of the reasoning of those who came before.

However, transmission and evolution of beliefs about individual rights can also occur as people observe the spontaneous evolution of rules of just conduct and social norms. It is possible for such evolution to occur spontaneously as “the result of human action but not human design” (to use an expression coined by Adam Ferguson, but much loved by Friedrich Hayek). Evolution of the English common law is often cited as an example of that process.

How much can be explained in terms of the spontaneous evolution of rules?

Hayek began his discussion on the classical and medieval tradition of the evolution of law by noting that even in the height of democracy in ancient Athens it was not possible to alter the rules of just conduct by a simple decree of the assembly. A change could only be brought about through a complicated procedure involving a specially elected body (Law, Legislation and Liberty (LLL), V1, p82). He also notes that classical Roman civil law was almost entirely the product of law-finding by jurists rather than legislation. (See the preceding post for Cicero’s quoting of Cato in support of that view. Hayek included that quote in Constitution of Liberty, p57). The famous law code of the Emperor Justinian was largely a collection of past laws and extracts of the opinions of Roman jurists.

Hayek argues that in the early medieval period, for about 1,000 years, law was again regarded as something to be discovered, not made. He quotes Fritz Kern:
There is in the Middle Ages, no such thing as the ‘first application of a legal rule’. Law is old; new law is a contradiction in terms; for either new law is derived explicitly or implicitly from the old, or it conflicts with the old, in which case it is not lawful” (LLL, V1 p 83).

Larry Siedentop describes how the Christian church created canon law in the 12th century by sifting through Roman law to establish which rules were compatible with Christian beliefs. Canon law covered aspects of private and criminal law including usury as well as marriage, adultery and divorce. Siedentop comments:
Little wonder that at times civil lawyers felt their domain was under threat” (Inventing the Individual, p 212).

Hayek notes that from the 13th century onwards, law making on the European continent gradually came to be regarded as an act of the will of the ruler. He suggests that was associated with the rise of absolute monarchy. England managed to preserve the medieval ‘liberties’, because of “a deeply entrenched tradition of common law” under which jurists “had developed conceptions somewhat similar to those of the natural law tradition” (LLL, V1, p 84-5). Hayek mentions the contribution of Edward Coke in defending the common law tradition against King James I and Francis Bacon, that of Mathew Hale in opposition to Thomas Hobbes.

That account almost takes us to John Locke. In his discussion of natural rights, Locke does not seem to have acknowledged the relevance to his views of the common law of England. However, as noted by Stephen Shepherd, Locke left evidence that he had read Coke and that he was influenced by near contemporaries, who had learned the law from Coke and the common lawyers. Shepherd also points out that Locke’s account of property rights has parallels in the common law (‘The Common Law and the Constitution’, American Society of Legal History, November 2005).

Spontaneous evolution via legal processes can explain how many ideas about natural rights evolved and persisted, but has limited capacity to explain recognition of natural rights of people who haven’t had standing in the courts. Judges can only discover individual rights in respect of cases that are brought before them. For example, the famous case (Somerset v Stewart) in which Lord Mansfield found slavery to be unsupported by the common law of England was decided in 1772 (many years after Locke died). The case was heard because Somerset's three godparents, from his baptism as a Christian in England, made application to the court on his behalf. Lord Mansfield narrowly limited his judgment to the issue of whether a person, regardless of being a slave, could be removed from England against their will, and said they could not.

A more fundamental limitation of spontaneous evolution of natural rights arose because in medieval times the common law was constrained by the influence of church authorities. For example, English common lawyers conceded jurisdiction to the church courts in relation to usury, defined then as "whatsoever is taken for a loan beyond the principal". The common law courts did not protect the rights of individuals to engage in mutually beneficial arrangements to borrow and lend money.

In order to understand the evolution of rules in relation to matters such as usury it is necessary to consider the evolution of reasoning about natural law.

How was Locke influenced by the evolution of reasoning about natural law?

Locke attributes the view that all are created equal “with no-one being subjected to or subordinate to anyone else” to Richard Hooker (1554-1600), an influential theologian in the Church of England:
The judicious Richard· Hooker regards this natural equality of men as so obvious and unquestionable that he bases on it men’s obligation to love one another, on which he builds their duties towards each other, from which, in turn, he derives the great maxims of justice and charity”.

Such views are, of course, central to Christianity. By mentioning Richard Hooker, however, Locke was indicating that he wanted to link his views to the symbolism of natural law which, as Linda Raeder has observed, was “a well-developed tradition of Western moral and political discourse”:
“The symbol was first advanced by the ancient Greeks, impressively elaborated by the Roman Stoics (most notably the Roman orator Cicero [106-43 B.C.]), and later incorporated into the Christian tradition as the “unwritten” law embedded in the heart of man and similar constructs. During the Middle Ages Thomas Aquinas (1225-1274), the “Angelic Doctor,” provided Christian civilization with a philosophical elaboration of the natural law that remains a characteristic element of Roman Catholic teaching to the present day” (The Nature and Purpose of Government, A Lockean View, 2017, p25).

As Larry Siedentop has pointed out, some leaders of the early Christian church recognised freedom of religion. Tertullian (c 155 – c 240) argued that “it is a basic human right that everyone should be free to worship according to his own convictions” (Inventing the Individual, 2015, p 78). Unfortunately, many of the church leaders who followed did not recognise such basic human rights.

Augustine (354 – 430) acknowledged the ethical significance of free will, and tried to strike a balance between fatalism and the belief that individuals could achieve salvation by their own efforts. He emphasised that it is important for individual Christians to develop a moral perspective, or conscience, and argued that it was the task of the church to try to create and tend consciences. Augustine’s emphasis on the importance of conscience set the scene for theologians who came much later to recognise freedom of conscience.

In the 9th century, Eriugena, an Irishman, known by his contemporaries as John the
Scot, produced a vigorous defence of free will against those who claimed the authority of Augustine for their view that “predestination applies both to good and bad” (Darrin McMahon, Happiness: A History, 2006, pp 110 – 112).

Research by Brian Tierney (discussed in Larry Siedentop’s book, pp 245-9) found the idea of natural rights to be present in 12th century canon law. Important contributions, including those of Rufinus, Odo of Dover and Hugguccio, led to a range of individual rights – overlapping those recognised by jurists in ancient Rome - being defended in terms of natural justice.
Thomas Aquinas (1225 – 1274) gave some recognition to freedom of conscience. He acknowledged that under some circumstances a person is justified in acting in accordance with an erring conscience, even if this entails disobeying the state. Nevertheless, he defended persecution of religious heretics.

Aquinas made an important contribution to liberty in recognising that laws exist primarily to enforce the rules of justice, rather than to make human beings virtuous (George H Smith, The System of Liberty, 2013 p 91).

Arguably, Aquinas’ most important contribution to liberty came indirectly via his Christianisation of the teachings of Aristotle. Aquinas argued that individuals can attain some happiness in this world through their natural capacity for contemplation of (religious) truth. Darrin McMahon suggests:
Aquinas’s opening up of a space in which ‘some partial happiness can be achieved in this life’ continued a process of restoring agency to the individual that had received impetus from the work of Eriugena and others during the Carolingian Renaissance” (op. cit. pp 129 – 131).

In the 13th century, John Duns Scotus argued that “an act is neither praiseworthy nor blameworthy unless it proceeds from the free will” and, in the 14 the century, William of Ockham associated reason with individual experience and choice, and saw ‘right reason’ as obligated by principles of equality and reciprocity. (I wrote about Duns Scotus and Ockham in my review of Siedentop’s book.)

In the 16th century, the late Spanish scholastics made important contributions to recognition of natural rights. Murray Rothbard highlighted the role of Francisco de Vitoria (c 1450 – 1514) who denounced the conquest and enslavement of the Indians of the New World (Economic Thought Before AdamSmith: An Austrian Perspective on the History of Economic Thought, V1, p 102). Rothbard also notes that some of those who followed Vitoria in the Salamanca school, made important contributions in defining circumstances in which the charging interest on loans was acceptable. Juan de Mariana (1536 – 1624) was the forebear of John Locke’s theory of popular consent. He held that in transferring their original political power from a state of nature to a king, the people reserved important rights, including rights concerning taxation, vetoing laws and reclaiming political power (Rothbard, op cit, pp 117-119).
A recent book by Ángel Fernández Álvarez points out the striking similarities between Locke’s Two Treatises on Government (1689) and Mariana’s On the King and the Royal Institution (1599). Fernández points to evidence that Locke had read Mariana’s books and that he and Mariana had the same position on the origin of property in work as well as the similar views on natural rights mentioned above.

What about Spinoza?
Baruch Spinoza (1632-1677) was a Jewish-Dutch philosopher whose views were influential, but difficult for his contemporaries to cite. In the 17th century, being accused of being a Spinozist was apparently as hazardous for an author’s claim to have views worthy of consideration as being accused to be an atheist. Spinoza held that there is only a single substance, which may be called either God or Nature, raising the issue of whether he was a pantheist, an atheist, or a "God-intoxicated man".(Anthony Kenny, A New History of Western Philosophy, p 550, 552).

The similarity between many of the views of John Locke and Spinoza has been noted by Wim Klever (Locke’s Disguised Spinozism). Spinoza argued:
“Inward worship of God and piety in itself are within the sphere of everyone's private rights, and cannot be alienated.”
Spinoza held that such “opinions fall within a man's natural right, which he cannot abdicate even with his own consent” (George H Smith, The System of Liberty, 2013, p91).

Beliefs and values supporting natural rights of individuals to life, property and liberty seem to have travelled from Cicero to Locke through both the spontaneous evolution of rules and evolution of reasoning about the natural law. Those different transmission processes interacted. There were periods when reasoning about natural law held back recognition of individual rights to participate in mutually beneficial activities e.g. lending and borrowing. Eventually, however, reasoning about natural law reinforced and extended individual rights recognised under common law.

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