Copyright Feric 2011 Natural Law and Common Law Traditions

Copyright Feric 2011

Natural Lawand Common Law

Traditions


Making Lesson Connections

Philosophy and Political Thought


Aristotle384 BC-322 BC

Man is a political animal


Aristotle (and Plato and Cicero)

argued that morality is not conventional, but natural.

There is a natural law that must be obeyed whether it is written down by legislative authorities or not. This is the essence of classical natural law theory.

This conventionalist view was opposed from Plato


Good Virtuous Men Make Good Government


Cicero 106 BC–43 BC

True law is right reason in agreementwith nature; it is of universal application, unchanging and

everlasting ... Whoeveris disobedient is fleeing from himself and denying his human nature ...


Thomas Aquinas1225–1274

Eternal Law All the laws of the universe Natural Law The portion of the eternal law

that man can know through “reason” Man-made Law Laws or regulations like

traffic ordinances Divine Law Law only known through

revelation (religious faith)


Aquinas establishes that non-Christianscan learn “Natural Law” through reason

This dramatically changes Christianthought

Original Sin affects the soul, not the mind


Major Break with the Past: Major Changes – The Beginning of the Modern Era

1476 Swiss Pikemen1517 Luther1500-1520 Machiavelli


Swiss Pikemen — Army of Peasants

Defeat the greatest warrior in Europe, Charles the Bold of Burgundy and his

Knights, twice


INDIVIDUALISMand

ABSOLUTISM


MACHIAVELLI1469–1527

Father of Modern Liberal Democracy

Moves away from Natural LawUses History


MAN

Is WICKED!Christianity without Grace and Redemption

Do not trust anyone!


RETURN TO the Ancient Roman Paideia the Virtue of Heroic Martial Honor

Reject the Christian Message


GOOD INSTITUTIONS Not Good Men as the Means to

Good Government


BALANCE

CONFLICT

and TENSIONGrandi and Popolo unitedto destroy their neighbors


VIRTUE

In the Institutions

The Highest Moral Excellencein the Society


Richard Hooker brings the Natural Law tradition to Anglican England.

He makes Aquinas

acceptable to Anglicans.

Richard Hooker1554–1600


Protestants from Luther on rejected Natural Law.

Truth only comes from Divine Revelation as revealed to be consistent with Scripture.

Humans had original sin, which meant that their soul, mind, and body where corrupted by sin.

Human reason was corrupt and could not be trusted.


Aquinas brought Aristotelian Natural Law back into the Western tradition

Hooker allows it to stay in the Anglican (English) tradition

Very contrary to Puritan and Presbyterian Protestant doctrine


Further Development

Francis Bacon Thomas Hobbes Algernon Sidney John Locke


Francis Bacon 1561–1626

Wants to Overthrow and Conquer Nature Wants to Subvert the Church Throw the Priests Out of Universities Bring in the Scientists Science Is King


Thomas Hobbes 1588–1679

Bacon’s Secretary Reason Is the Slave to Passion

Like Machiavelli

Restores Justice-- but only as a tool

Orient Society around fear of violent death War Is an Obstacle to Progress

-- an obstacle to Commerce


ONLY

A Strong King can keep the Peace, through

fear of a Violent DeathPeace allows CommerceWe can get bits of satisfaction.


ONE KINGONE LAW

EASIERSAFER


Algernon Sidney 1623–1683

Sidney adheres more to the ancient view of “Natural Law” more than

Locke doesMan is a political animal.

Man’s natural state is within a society.


Sidney writes Discourses concerning Government to counter Robert Filmer’s Patriarcha, which supports the heredity

monarchy. Both men use Hooker extensively to make

their arguments.

Hooker is the authority


John Locke 1632–1704

Locke uses Hooker as a beginning Hooker’s view on Natural Law was the

accepted norm in Stuart England Protestant dissenters rejected Natural Law Locke began with Hooker to launch his new

view of Natural Law


Locke followed Thomas Hobbes’ notion that man was a solitary being in the State of Nature Natural Rights with the individual

Counters the Ancients, Aquinas, Hooker, and Sidney that Man is a political animal. Natural Rights within a society


Natural Law moves from:

DUTIES

to

RIGHTS


John Locke

Continues the Move away from Christianity

God gave man the EARTH God gave man REASON Natural Providence is a Reflection of Divine

Providence


ANCIENTS and CHRISTIANS

Humans only have use of things on Earth

Stewardship


Every Man Has Propertyin His Own Person

Major Paradigm Shift The Labor or Work of my hands are mine ----

My Property Common land becomes “my land.” “I work it. It’s mine!”


GENESIS 1:28

CHRISTIANS and JEWS

Be fruitful and multiply and replenish the Earth . . .

BACON and LOCKE

. . . and subdue it.


In America, Lockean Thought

Justifies colonization Justifies taking Indian land Justifies homesteads and settlements


Thomas Jefferson (1743–1826)

LIFE LIBERTY PROPERTY


Back to BALANCE

CONFLICTand TENSION

in Institutions


James Harrington (1611–1677) Oceana-- 1656

derived a theory akin to separation of powers from the old idea of mixed government.


Charles de Secondat, baron de Montesquieu (1689–1755)

Checks and Balances Only small republics

can work


David Hume (1711–1776)

History Strongmen become king –

the beginning of government He mocks Locke – “When was there ever a

‘state of nature’?”


Adam Smith (1723–1790)

Invisible Hand Competition Men Pursue Self Interests


James Madison (1751–1836)

The Science of Politics Checks and Balances Balance of Power A republic over a large area to minimize

factions


Natural Law — Natural Rights Consent of the Governed

Life Liberty Property (pursuit of happiness)


BUTMan and Factions Can’t Be Trusted

Virtue must be in the Institution, not in the man

Men will Pursue GLORY

GOOD!GOOD!


BALANCE

CONFLICTCONFLICTand TENSIONand TENSION

FederalismDivision of Powers

Checks and Balances

Documents

Copyright Feric 2011 Natural Law and Common Law Traditions