Greece, Rome, and the Bill of Rights (13 page)

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Authors: Susan Ford Wiltshire

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

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consentwhich may be the first time in political thought that governmental legitimacy was determined by consent based on natural law.

35

Given the subsequent role of private property in arguments about rights, it is significant that the context of Ockham's political writings was the controversy between the papacy and the Franciscans over apostolic poverty. The Franciscans argued that they should not own property but only exercise the use of it for their immediate needs. Ockham's
Opus nonaginta dierum
was written in direct refutation of a papal bull issued in 1329 by Pope John XXII entitled
Quia vir reprobus
. In that document the pope attacked the Franciscan position by arguing that God possesses lordship
(dominium)
over the earth just as individuals do over their possessions. Thus, property is natural to human beings and is sustained by divine law. One scholar takes the view that it was the reaction to Ockham, rather than Ockham's own work, that led to a radical natural rights theory. If God has property in the world, such a view holds, then human beings can, too, and in this one way resemble their maker. This basic fact about human beings can thus lead fairly directly to an individualistic political theory not far removed from the classic theories of rights of the seventeenth century.
36
Ockham's younger contemporary, John Wyclif (13201384), has been credited with advancing the theme of the individual as a fully fledged, autonomous, independent member of society who had inherent, inborn rights. What made Wyclif especially important was his resistance to the corporational or collectivist point of view and his appreciation of subjective judgments, the same values that led him to translate the Bible into the vernacular. For Wyclif, the validity of law and public actions depended on the "moral worth" of the body or person creating the law.
37
The evolution of individual liberty in feudal England, together with events originating in the late Middle Ages on the Continent, would combine to create entirely new ways of thinking about human autonomy and individual rights.

 

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Chapter 4
Enlightenment Humanism the "New Thought"
The State of Nature has a Law of Nature to govern it, which obliges every one; and Reason, which is that Law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Liberty, or Possessions. J
OHN
L
OCKE
The emergence of the individual in political thought is one of the supreme achievements of the human mind. The gestation of the idea was long, stretching from the late Middle Ages through the Renaissance and Reformation to the eighteenth century. In classical Athens and Rome the status of human beings was defined by membership in the city or state. In the medieval period it was conditioned by membership in the
corpus Christi
.
Now the individual emerges as independent citizen in the social sphere, and now for the first time a belief in individual rights grows out of natural law theory. This chapter of the story of rights begins with certain cultural innovations during the late medieval period; continues

 

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with the humanistic scholars of the early Italian Renaissance; shifts to northern Europe with the thought of Grotius and Pufendorf; acknowledges the roles of Hobbes, Rousseau, and Montesquieu; and concludes with the seminal thought of John Locke. While such a survey passes over many key figures and moments, it traces in outline the emergence of individual rights in political thought, without which there would have been no United States Bill of Rights.
The Medieval Legacy
From the late twelfth century on, a combination of factors converged to widen the arena for individuals within the political realm and to enhance humanism in all areas of life. These cultural and intellectual innovations, some of them in unexpected ways, helped bring major breakthroughs in political thought.

1

In the visual arts there was an increased naturalism, in which idealized stereotypes gave way to the portrayal of more individualistic traits. Architecture, sculpture, and painting were increasingly entrusted to laypeople.
Important works were now written in or translated into the vernacular, making all kinds of knowledge more widely accessible. With the spread of written work available in the vernacular as well as Latin, knowledge of many subjects was no longer limited to a small circle of educated clergy.
The writing of history changed, with a new emphasis on the role of individual human beings in the making of history. Otto of Freising, for example, claimed that history should be pleasant to read: ''We have not set out to write tragedy, but a pleasurable history."
2
Grim themes of
memento mori
(remember to die) gave way to
memento vivere
(remember to live) as optimism and a zest for living replaced resignation and escapism.
Interest in the natural sciences grew, bringing with it an enhanced enthusiasm for discoveries about the natural world in which we live. Roger Bacon (c. 12191294), for

 

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example, experimented with convex lenses and rediscovered the crossing of the optic nerve.
"Political Platonism," with its emphasis on the perfection of a closed ethical/political system, was replaced by Aristotelianism, which saw both politics and ethics as imprecise endeavors that allow for many variations and different ways of life. Aristotle was more interested in empirically observing how people really behave. While Aristotle's central thesis about organic society would give way to a citizen-centered model, his intellectual methodology proved more amenable to humanistic thought than Plato's.
This breakdown of Platonic wholeness opened the way for renewed appreciation of Aristotle's views on natural law and the concept of citizen as constituent of the state. Aristotle had shown that person and citizen were two different categories, so that the good citizen need not be a good person and vice versa.

3
Ideally the two would be the same, but this wedge between ethics and politics opened the way for a wider arena of political action and a larger role for the individual on the stage.

Classical Greek and Latin authors were read with a new openness of mind. Rather than being scrutinized for conformity with Christian doctrine, they were interesting now for how they could enhance understanding of human life.
In a seemingly small but consequential advance, eyeglasses were invented, making it possible for more people to read the works that were increasingly available. The first documented manufacture of spectacles was that of Bernard Gordon in 1305 at the University of Montpellier.
4
Finally, the continuity of Roman law with its concepts of the citizen and the state provided what Walter Ullmann calls "preparatory familiarity" for a new understanding of individuals as citizens in their own right.
5
Dante and the Italian Renaissance
The poet Dante (12651321) contributed significantly to the new ways of thinking with his inclusive view of the

 

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human community,
humana civilitas
. For Dante, this concept embraced not only Christians but Muslims, Jews, and pagans as well. While Dante subscribed to Aquinas's "double ordering" of things human and divine, he also evinced a great belief in human freedom. Grounded in this belief, Dante articulated in his
De monarchia
a new relationship between governors and governed: "Citizens are not there for the sake of governors, nor the nation for the sake of the king, but conversely the governors for the sake of the citizens, the king for the sake of the nation."

6

Dante appears to have been the first to speak of human liberty as inherent in human nature and not granted by any exterior authority except God. Now citizens were seen to have choices about how they live with one another and how they organize human society. For Dante, liberty was the guarantee that human beings would be happy on this earth since freedom means that human beings exist for their own sake, not for the sake of something or someone else.
7
Dante's
De monarchia
also contributes to other new forms of political thought. A faithful follower of Aquinas, Dante advocated
civilitas
as an antidote to political fragmentation and urged a world state composed of free states. For Dante, freedom was the "greatest gift conferred by God on man," and only free citizens had the possibility of developing all their capacities.
Following Dante, Lucas of Penna (c. 13201390) also combined Platonic, Stoic, Aristotelian, and Ciceronian ideas with the Christian faith to come up with a new and more inclusive amalgam. Lucas saw human beings as part of universal nature as well as creatures of God. Therefore people are endowed by God with inborn and indestructible rights, regardless of human legislation.
8
True happiness is a function of the freedom into which human beings are born,
ad libertatem nati sumus
, and which they can exercise against even legitimately instituted laws if the demands of officials are unjust. Lucas believed strongly that human happiness depended, to a very marked degree, on the adequate payment of wages, basing his belief on Lev. 19.13: "You shall not keep back a hired man's wages

 

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till next morning." Penna believed that rights, while only contributory to happiness, nevertheless could be exercised against even legitimately instituted laws.

9

The thought of Pietro Pomponazzi of Padua (14621524) provides another striking example of the shift in the status of the individual in the Renaissance. Pomponazzi has been called the last of the Scholastics, but he is just as aptly considered the first representative of the Enlightenment.
10
In his treatise
On Fate, Predestination, and Free Will
, Pomponazzi never attacks the faith held by the Church of the Middle Ages, but he does heighten the distinction between faith and reason, leaning heavily to the side of reason. While not challenging the theory of a transcendent world, he makes clear that he does not need a theory of transcendence on which to base his ethics. In his worldview the human sciences now have a basis independent of theology.
Pomponazzi's thoughts on individualism in
On the Immortality of the Soul
differ diametrically from those in an essay of the same name by his slightly earlier contemporary, Marsilio Ficino of Florence (14331499). Both philosophers strive to define the individual, but Ficino does this by tying the freedom of human beings to the supernatural transcendence of their souls, while Pomponazzi believes that the justification of individuality resides not outside of but within nature. For Pomponazzi, the soul is a direct continuation of the body. In this emphasis on nature he is following Aristotle the biologist rather than Aristotle the metaphysician.
11
Even though his thought had to be revised in many important respects, the rediscovery of Aristotle helped foment the intellectual revolution in the thirteenth century. For Aristotle the state was a natural unit that had grown entirely according to the laws of nature, independent of theology or divine intervention. This led to an abandonment of the "wholeness" point of view because it addressed not the Christian as the "whole person subject to the Ruler" but the state as a collection of persons. With the reintroduction of the concept of the state, the concept of the citizen also emerged. Both notions would

 

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