ELEVEN: THE ORIGINS OF THE RULE OF LAW
1 Modern Liberty Begins in Seventeenth-Century England
Modern individual liberty in England has roots in the seventeenth century, emerging from struggles for power rather than intentional design. Over two hundred years, this focus on preserving and refining liberty influenced global ideals. While the Middle Ages played a role in shaping modern concepts of freedom, it is often overstated. During that time, people had specific privileges, but not universal liberties like today. Ancient views held that the state could not create law, only recognize it, a belief that began to change in the late Middle Ages. Consequently, Parliament evolved from finding to creating laws, contributing to the idea of limited government. This shift, along with medieval documents like the Magna Carta, became central in advancing individual freedom.
2 the Sources of the Ideal in Ancient Athens
In ancient Athens, especially during its peak, the concept of liberty was more nuanced than many realize. While it is often thought that the ancients lacked a sense of individual liberty, Athenians enjoyed a unique form of freedom that extended to their personal lives. This idea of freedom, tied to the concept of "isonomia," or equality before the law, meant that all individuals were subject to the same laws. This principle was established by Solon, who aimed to provide equal laws for both the noble and the common people. Isonomia was crucial in contrasting the arbitrary rule of tyrants and was celebrated in Athenian culture.
Though democracy in Athens eventually diverged from this ideal, the Greeks recognized that isonomy and democracy were related but distinct concepts. Philosophers like Aristotle emphasized that true governance should be by law rather than individual rulers. He criticized any system where the majority's decisions overruled established laws, arguing that such a system could not be considered a free state. His ideas influenced later thinkers who stressed the importance of law over the whims of men, laying the groundwork for modern principles of governance centered on the rule of law.
3 and in the Roman Republic
In the seventeenth century, the influence of Roman writers started to replace Greek ideas. The Laws of the Twelve Tables were important for Roman liberty, stating that laws should apply to everyone equally and not give special privileges to some individuals. Over time, this led to the creation of a system of private law that was different from the later Justinian code. Key figures like Cicero helped spread these concepts of freedom under the law. However, starting in the second century AD, government control increased, which started to damage the freedom established by the law. This shift led to a focus on imperial authority instead of protecting individual freedom, especially during Justinian's rule.
4 the English Fight Against Privilege
During the reign of Elizabeth I in England, classical literature influenced the emergence of individual liberties. After her death, a conflict arose between the king and Parliament, leading to greater individual rights. This struggle involved economic issues, such as the kings' attempts to create monopolies, which felt familiar to people even centuries later. Parliament argued that exclusive production rights violated the common law and individual freedoms. The 1610 Petition of Grievances highlighted the importance of being governed by consistent laws rather than arbitrary decision-making by the king, emphasizing that punishments should only be based on established laws made with parliamentary consent.
Sir Edward Coke's interpretations during the discussions on the Statute of Monopolies in 1624 became foundational. He argued that monopolies challenged freedom and warned Parliament to adhere to laws rather than exercising discretionary power. Over time, debates from the Civil War led to political ideals against arbitrary government action. The role of law should be prioritized, and punishments should have legal backing.
By 1641, the abolition of certain courts symbolized progress toward justice and judge independence. It was recognized that arbitrary actions could come from either the king or Parliament. Key ideas included a written constitution and the separation of powers, which aimed to protect citizens' freedoms against arbitrary governance and ensure justice was accountable and fair.
5 the Codification of the Whig Doctrine
The ideas discussed had a significant impact for a hundred years in England, America, and Europe, especially following the expulsion of the Stuarts in 1688. John Locke's Second Treatise on Civil Government stands out for its influence, serving as a philosophical justification for the Glorious Revolution. Central to Locke's work is the importance of established laws that protect individuals from arbitrary power. He argues that government authority must be based on known laws, with judges interpreting these laws fairly. Locke emphasizes the need to limit the powers of government through the separation of powers to prevent abuse. Ultimately, he seeks to ensure that laws protect society and its members.
6 Developments During the Eighteenth Century
In the eighteenth century, the idea of the rule of law slowly became more accepted in England, but it wasn’t fully practiced yet. Important events included the Act of Settlement in 1701, which made judges independent, and the last bill of attainder in 1706, which confirmed the separation of powers. A member of the House of Commons explained that people can’t be punished without a law, and Lord Camden stated that courts should focus on general rules, not on government goals. While progress was slow and equality before the law was still uncertain for the poorest, these ideas gained wider acceptance, even as the separation of powers started to weaken with the growth of cabinet government.
7 Restatements by Hume, Blackstone, and Paley
In the late eighteenth century, key ideas about government greatly influenced public opinion for the next hundred years. David Hume highlighted the shift from arbitrary rule to laws guiding governance. He argued that no government at that time could function without some arbitrary power, yet it was essential for liberty to limit such power. The Parliament's decision to restrict the King's power was crucial for maintaining freedom, even though it led to some challenges. Later thinkers like Blackstone reinforced these ideas, emphasizing judicial independence and the separation of powers. William Paley elaborated on the importance of having laws created by one group and enforced by another, stressing that this helps ensure fairness and prevents personal interests from affecting justice. This separation encourages laws that are general and serve the common good rather than individual motives.
8 the End of the British Evolution
By the end of the eighteenth century, England's influence on the principles of freedom began to fade. Though some thinkers continued to support classical views of liberty, new ideas emerged that shifted away from traditional beliefs. Philosophers like Bentham and the Utilitarians criticized aspects of the British constitution, pushing for reforms based on rationalism. This change was reflected in the ideas of early supporters of the French Revolution, who misunderstood English liberty. Over time, French concepts of political liberty replaced earlier English ideals, leading to significant shifts in British thought about freedom.
1 Modern Liberty Begins in Seventeenth-Century England
Modern individual liberty in England has roots in the seventeenth century, emerging from struggles for power rather than intentional design. Over two hundred years, this focus on preserving and refining liberty influenced global ideals. While the Middle Ages played a role in shaping modern concepts of freedom, it is often overstated. During that time, people had specific privileges, but not universal liberties like today. Ancient views held that the state could not create law, only recognize it, a belief that began to change in the late Middle Ages. Consequently, Parliament evolved from finding to creating laws, contributing to the idea of limited government. This shift, along with medieval documents like the Magna Carta, became central in advancing individual freedom.
2 the Sources of the Ideal in Ancient Athens
In ancient Athens, especially during its peak, the concept of liberty was more nuanced than many realize. While it is often thought that the ancients lacked a sense of individual liberty, Athenians enjoyed a unique form of freedom that extended to their personal lives. This idea of freedom, tied to the concept of "isonomia," or equality before the law, meant that all individuals were subject to the same laws. This principle was established by Solon, who aimed to provide equal laws for both the noble and the common people. Isonomia was crucial in contrasting the arbitrary rule of tyrants and was celebrated in Athenian culture.
Though democracy in Athens eventually diverged from this ideal, the Greeks recognized that isonomy and democracy were related but distinct concepts. Philosophers like Aristotle emphasized that true governance should be by law rather than individual rulers. He criticized any system where the majority's decisions overruled established laws, arguing that such a system could not be considered a free state. His ideas influenced later thinkers who stressed the importance of law over the whims of men, laying the groundwork for modern principles of governance centered on the rule of law.
3 and in the Roman Republic
In the seventeenth century, the influence of Roman writers started to replace Greek ideas. The Laws of the Twelve Tables were important for Roman liberty, stating that laws should apply to everyone equally and not give special privileges to some individuals. Over time, this led to the creation of a system of private law that was different from the later Justinian code. Key figures like Cicero helped spread these concepts of freedom under the law. However, starting in the second century AD, government control increased, which started to damage the freedom established by the law. This shift led to a focus on imperial authority instead of protecting individual freedom, especially during Justinian's rule.
4 the English Fight Against Privilege
During the reign of Elizabeth I in England, classical literature influenced the emergence of individual liberties. After her death, a conflict arose between the king and Parliament, leading to greater individual rights. This struggle involved economic issues, such as the kings' attempts to create monopolies, which felt familiar to people even centuries later. Parliament argued that exclusive production rights violated the common law and individual freedoms. The 1610 Petition of Grievances highlighted the importance of being governed by consistent laws rather than arbitrary decision-making by the king, emphasizing that punishments should only be based on established laws made with parliamentary consent.
Sir Edward Coke's interpretations during the discussions on the Statute of Monopolies in 1624 became foundational. He argued that monopolies challenged freedom and warned Parliament to adhere to laws rather than exercising discretionary power. Over time, debates from the Civil War led to political ideals against arbitrary government action. The role of law should be prioritized, and punishments should have legal backing.
By 1641, the abolition of certain courts symbolized progress toward justice and judge independence. It was recognized that arbitrary actions could come from either the king or Parliament. Key ideas included a written constitution and the separation of powers, which aimed to protect citizens' freedoms against arbitrary governance and ensure justice was accountable and fair.
5 the Codification of the Whig Doctrine
The ideas discussed had a significant impact for a hundred years in England, America, and Europe, especially following the expulsion of the Stuarts in 1688. John Locke's Second Treatise on Civil Government stands out for its influence, serving as a philosophical justification for the Glorious Revolution. Central to Locke's work is the importance of established laws that protect individuals from arbitrary power. He argues that government authority must be based on known laws, with judges interpreting these laws fairly. Locke emphasizes the need to limit the powers of government through the separation of powers to prevent abuse. Ultimately, he seeks to ensure that laws protect society and its members.
6 Developments During the Eighteenth Century
In the eighteenth century, the idea of the rule of law slowly became more accepted in England, but it wasn’t fully practiced yet. Important events included the Act of Settlement in 1701, which made judges independent, and the last bill of attainder in 1706, which confirmed the separation of powers. A member of the House of Commons explained that people can’t be punished without a law, and Lord Camden stated that courts should focus on general rules, not on government goals. While progress was slow and equality before the law was still uncertain for the poorest, these ideas gained wider acceptance, even as the separation of powers started to weaken with the growth of cabinet government.
7 Restatements by Hume, Blackstone, and Paley
In the late eighteenth century, key ideas about government greatly influenced public opinion for the next hundred years. David Hume highlighted the shift from arbitrary rule to laws guiding governance. He argued that no government at that time could function without some arbitrary power, yet it was essential for liberty to limit such power. The Parliament's decision to restrict the King's power was crucial for maintaining freedom, even though it led to some challenges. Later thinkers like Blackstone reinforced these ideas, emphasizing judicial independence and the separation of powers. William Paley elaborated on the importance of having laws created by one group and enforced by another, stressing that this helps ensure fairness and prevents personal interests from affecting justice. This separation encourages laws that are general and serve the common good rather than individual motives.
8 the End of the British Evolution
By the end of the eighteenth century, England's influence on the principles of freedom began to fade. Though some thinkers continued to support classical views of liberty, new ideas emerged that shifted away from traditional beliefs. Philosophers like Bentham and the Utilitarians criticized aspects of the British constitution, pushing for reforms based on rationalism. This change was reflected in the ideas of early supporters of the French Revolution, who misunderstood English liberty. Over time, French concepts of political liberty replaced earlier English ideals, leading to significant shifts in British thought about freedom.