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 17^th century, were already present in Cicero’s account of natural law from the 1^st 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 12^th 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 13^th 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 9^th 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 12^th 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 13^th 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 16^th 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 17^th 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).

Conclusion

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.

How did we get from natural law to natural rights?

It seems to be becoming fashionable these days for people in the western world to downplay the importance of liberty. Some people even express a Utopian vision of a society in which we would sacrifice liberty to enable wise scientists to govern our lives, making sure we don’t harm the environment, that everything we do is in the interests of social justice, that no-one says or does anything that might offend anyone else, and of course, that we all feel happy. When you try to remind these visionaries that scientific socialism ended in tyranny, they say it will be different next time. When such people take over, guess what happens.

"Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."

Lord Acton wrote that in 1887, well before Lenin, Stalin and Mao, came on the scene as young idealists, intent on creating utopias. They were ruthless in attaining power, and became evil tyrants to retain it.

Anyone who doubts the value of liberty should ask themselves what it would be like to live in a country that doesn’t allow the basic freedoms that they take for granted. What would it be like to live in a country where you don’t have freedom of religion, where you can be put in jail for expressing views not approved of by political leaders, where you could be subject to arbitrary arrest, where your property can be seized by the government, or where your freedom to  move around is restricted? Such countries are still easy to find.

The purpose of that introductory rant was just to suggest that the liberty we have is worth keeping. If you want to keep it, you should be interested in how we got it.

You don’t need to know much history to be aware that recognition of the right to life, liberty and property has had strong links to the concept of natural rights. You might also be aware that John Locke 1632 -1704) is widely viewed as an important figure in promoting the concept of natural rights.

John Locke’s Second Treatise on Civil Government was “outstanding in its lasting effects”. The quoted phrase, by Friedrich Hayek, is in the Constitution of Liberty (p 170). Rights to life, liberty and property are often referred to as Lockean rights. The attribution is appropriate even though the definition of such rights has changed somewhat since Locke wrote his Second Treatise. Locke’s exposition of natural rights has had lasting effects on political philosophy and discussion of constitutional issues.

Locke’s view of natural rights stems from his perception of the state of nature, prior to government:

“In this state men are perfectly free to order their actions, and dispose of their possessions and themselves, in any way they like, without asking anyone’s permission—subject only to limits set by the law of nature”.

He goes on to explain that natural law entails obligations to respect the life, liberty and possessions of others:

“The state of nature is governed by a law that creates obligations for everyone. And reason, which is that law, teaches anyone who takes the trouble to consult it, that because we are all equal and independent, no-one ought to harm anyone else in his life, health, liberty, or possessions.”

A couple of chapters later, in explaining property rights, Locke asserts that individuals own themselves:

“every individual man has a property in his own person; this is something that nobody else has any right to. The labour of his body and the work of his hands, we may say, are strictly his. So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property”.

John Locke obviously made an important contribution in explaining that natural law implies natural rights. However, I don’t think a few quotes from Locke provides an adequate answer to my question of how we got from natural law to natural rights. As discussed in a recent post, the history of liberty began in the ancient world.

Where can we find an example from the ancient world of a statement of natural law that provides some recognition of a right to liberty? Aristotle might come to mind as a possibility, but as indicated in another recent post, I have some misgivings about his account of natural law.

Cicero provided a more coherent account of natural law, in my view. He saw natural law as a moral force integral to human nature, whilst also recognizing the laws of the republic as the product of an evolutionary process protecting the rights of citizens.

 Cicero was a Roman statesman, lawyer and philosopher who lived from 106 BC- 43 BC. He has been described as eclectic in his philosophy (e.g. by Anthony Kenny in A NewHistory of Western Philosophy, 2010). For my purposes, Cicero’s eclecticism is helpful. His views provide a coherent synthesis of some of important contributions of those who came before, including Aristotle and the Stoics.

The following quotes from Cicero’s Treatise on the Laws illustrate his view of natural law as an inner moral force:

“For of all the questions on which our philosophers argue, there is none which it is more important thoroughly to understand than this, that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature”.

“But in nothing is the uniformity of human nature more conspicuous than in its respect for virtue. What nation is there, in which kindness, benignity, gratitude, and mindfulness of benefits are not recommended? What nation in which arrogance, malice, cruelty, and unthankfulness, are not reprobated and detested!”

“It follows, then, in the line of our argument, that nature made us just that we might participate our goods with each other, and supply each others’ wants”.

“As far as we are concerned, we have no other rule capable of distinguishing between a good or a bad law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous”.

The laws of ancient Rome gave citizens immunity from arbitrary arrest and recognized their rights to make legal contracts, to own property, to choose an occupation, and to move freely, as well as the right to vote and stand for public office. In the introduction to The Republic Cicero recognised that the laws of the republic were the product of an evolutionary process. He approvingly quoted Cato, the elder, as claiming “that the condition of Rome was pre-eminent above all other countries” because: 

“the constitution of our republic was not the work of one, but of many; and had not been established in the life of one man, but during several generations and ages. For [Cato] said so powerful a mind had never existed; from which nothing had escaped; nor that all minds collected into one, could foresee so much at one time, as to comprehend all things without the aid of practice and time”.

It seems to me that many of the ingredients of John Locke’s perception of natural rights were already present in Cicero’s account of natural law. That leads me to my next question:

How did we get from Cicero to Locke?

How could the great philosopher of human flourishing endorse slavery?

Aristotle (384-322 BCE) was the great philosopher of human flourishing. He argued that although health, wealth, honour, pleasure etc. may be sought for themselves, we choose them also for the sake of living well. Living well involves making use of the vital functions that make us human. Many of the vital functions of humans, including nutrition, reproduction and movement, are the same as those of other animals. However, humans also have the capacity to use reason to guide themselves and exercise appropriate moderation in their behaviour. Parents and fellow citizens may help us to acquire good habits, but we are individually responsible for exercising the practical wisdom that we require to flourish.

It would be reasonable to expect that a person who held such views would be opposed to slavery on the grounds that slaves can only use reason to guide their actions within the limits imposed by their owners. So, how could Aristotle endorse slavery?

Julia Annas explains in The Morality of Happiness that Aristotle saw slavery to be natural. His appeal to nature has two aspects. The first is his claim that slavery has a natural basis in differences between types of people. According to Aristotle, there are “natural slaves” whose “state is such that their function is the use of their body, and this is the best they can do”. On that basis he argues that “it is better for them to be ruled”. He also suggests that the benefits owners obtain from use of slaves “differs only a little” from those obtained from use of domesticated animals. Aristotle saw the relationship of subordination between owner and slave as an example of a general pattern, also encompassing the relations between men and women (p 152).

The second aspect of Aristotle’s appeal to nature was based on his observation that slavery was widespread and should therefore be considered natural.  (p 153).

Julia Annas suggests that Aristotle’s defence of slavery fails even in terms of his own view of what is natural. Aristotle distinguishes between natural behaviour, governed by internal sources of change, and forced behaviour, brought about by external factors that overrule the internal sources of change. Even if we were to accept Aristotle’s claim that some people are natural slaves, that cannot explain the functioning of actual slavery which is based on the use of force.  Again, Aristotle’s observation that slavery was a “near universal social institution” did not justify his inference that it is natural in the sense of not resting on force. Annas comments:

“The usual may be natural with plants and animals, but the complexity of human nature allows the usual to be something that is forcibly repressed, unjust and in every way frustrating to normal human capacities” (p 155).

How could Aristotle not see this? Perhaps he perceived that some people are natural slaves because he couldn’t imagine the slaves he knew as free citizens. Many of us have a somewhat similar problem today is assessing the potential of individuals to accept more responsibility than they have at present. There seems to be a common cognitive bias that leads us to identify people with their current roles. We don’t know what people are capable of until we see them in a different role.

Aristotle’s perception that it was natural to make slaves of defeated enemies can possibly be explained as the biased perception of a slave owner, but his loose definition of circumstances in which external force is involved left him scope to take a biased view. He was able to disregard the use of force at the heart of the system of conquest and slavery by identifying the whole system as a natural system.

Similarly, Aristotle’s loose definition of circumstances in which external force is involved enabled him to condemn the profit motive and the market economy. In this instance he identified the natural system as the primitive system of directly producing what meets one’s needs, and only using exchange as much as required to satisfy unmet needs and get rid of unusable surplus. That enabled him to identify the market economy as an external force that disrupted a natural system.

Aristotle’s view of what is natural would have been less prone to bias if it had been based on the natural rights of individuals, and hence the naturalness of mutually beneficial voluntary cooperation and exchange among individuals. That would have made it much more difficult for him to condone any use of force (coercion) that constrains individual flourishing.

However, we shouldn’t judge Aristotle too harshly for his wobbly views about what is natural. It is worth remembering, that a more coherent view of natural law didn’t prevent eminent philosophers who lived much later from also endorsing slavery. For example, Thomas Aquinas, who lived over 1500 years after Aristotle, also endorsed slavery despite holding the view that the first precept of the natural law is to do good and avoid evil.

A question worth exploring further is the extent to which Aristotle’s views on the potential for individual human flourishing played a role in the eventual recognition of the natural rights of individuals, via Aquinas’ endorsement of those views in his natural law theory of morality.

Was individual liberty discussed as a political ideal in the ancient world?

“There seems to be scarcely any discussion of individual liberty as a conscious political ideal (as opposed to its actual existence) in the ancient world.”

Isiah Berlin wrote that in his essay, Two concepts of liberty, first published in 1958. Berlin was a distinguished, Russian born, British social and political theorist, philosopher and historian of ideas. His view should not be lightly dismissed, but he does seem to have understated the extent of discussion of individual liberty as a conscious political ideal in ancient Athens and Attica.

Why should we care whether people in the ancient world discussed individual liberty as a conscious political ideal, or just took it for granted? I think we should care because the reasons why norms of liberty emerged and disappeared in parts of the ancient world may have contemporary relevance. An understanding of the role played by conscious endorsement or opposition in sustaining or eroding norms of liberty in the ancient world might help us to understand the presence, absence, strength or fragility of those norms in various parts of the world today.

In one of his online articles about Ancient Greece’s Legacy for Liberty, Roderick Long draws attention to the views of Hesiod, along with Homer one of the twin founders of Greek epic poetry. Hesiod’s poems appear to date from the 8^th or 7^th century BCE. In his poem, Works and Days, Hesiod advocates respect for the rights of others. He advises his brother Perses, to “put away all notions of violence” for “fish, and wild animals, and the flying birds” may “feed on each other, since there is no idea of justice among them,” but “to men [Zeus] gave justice,” which is the “best thing they have.”  Hesiod condemns both force and fraud: the grabbing of goods either by “force of hands” or by “cleverness of … tongue.”

Hesiod contrasts war and market competition as “two Strifes” with different natures: 

“There is one Strife who builds up evil war, and slaughter.

She is harsh; no man loves her ….

But the other one was born the elder daughter of black Night. …

she is far kinder.

She pushes the shiftless man to work, for all his laziness.

A man looks at his neighbor, who is rich:  then he too

wants work ….  Such Strife is a good friend to mortals.

Then potter is potter’s enemy, and craftsman is craftsman’s

rival; tramp is jealous of tramp, and singer of singer”.

In The Other Greeks, Victor Hanson notes that Hesiod presented an ideology of reward for honest toil in agriculture. Secure property rights gave the owners of small farms incentives to work hard. Successful farmers were able to expand their holdings. Hesiod’s views about the virtue of hard work were presumably shared by the owners of many small farms at the beginning of the polis period of ancient Greece.

Hanson argues that the owners of small farms had a strong impact on the development of democracy in ancient Athens. He notes that by the early 6^th century BCE Athens had free markets and “was struggling toward the formal political recognition of a true class of yeomanry, who owned their own plots and sought political representation equal to their economic success".

Most of these farmers were apparently hoplites (citizen soldiers) who made up nearly half the citizen population of the early poleis after having been incorporated by the Solon, a famous lawmaker, into the Athenian political system around 600 BCE. Hanson comments:

“An enormous social transformation had obviously taken place in Greece, nothing less than the creation of an entire class, which through sheer preponderance of numbers overwhelmed the aristocratic culture of Dark-Age Greece."

The Athenian democracy gave citizens considerable individual liberty as well as the right to participate in politics. According to Thucydides, the leading Athenian politician Pericles (c. 495-429 BCE) declared:

“The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes”.

Writing later, Plato and Aristotle agreed with that assessment, but were critical of the individual liberty they saw exercised in Athens. Roderick Long suggests that Plato makes Athenian democracy sound like the panarchist ideal: there is “no compulsion to rule in this city, even if you are qualified to rule, or to be ruled if you do not want to be; or to be at war when the others are at war, or to keep the peace when the others are keeping the peace,” so that democracy constitutes not so much a single political system as a “supermarket of constitutions” where each person can “pick out whatever pleases him”. Aristotle suggested that according to the democratic conception, “freedom and equality consists in every one’s doing what they please,” so that “every one may live as he likes.”

Plato and Aristotle seem to have exaggerated the extent of liberty in Athens in order to argue against democracy.  In assessing the extent of liberty in ancient Athens it should also be remembered that many of residents were non-citizens or slaves.

An eminent  ancient historian also discussed freedom of speech as a political ideal. Herodotus (c. 484-425 BCE) puts into the mouth of Artabanos, advisor to Xerxes, a defense of the distinctively Athenian ideal of freedom of speech:

“O king, if opinions opposed to one another be not spoken, it is not possible to select the better in making the choice, but one must accept that which has been spoken”.

Did imposition of the death penalty on Socrates (399 BCE) for exercising freedom of speech conflict with that ideal? Chris Berg suggests that Socrates’ use of irony and rhetorical skill to induce people into questioning their beliefs would have been seen to be contrary to the purpose of Athenian speech freedoms. Socrates might have appeared to be deceitful because he was not forthright in expressing personal views. That interpretation of events is consistent with Plato’s account of the defence Socrates offered at his trial. Rather than defending his right to freedom of speech, Socrates asserts that he is honest and undeceitful.

Although the norms of liberty that existed in ancient Athens seem to have evolved without much conscious effort, they were not taken for granted. There was considerable discussion of the extent to which individual liberty was desirable, and the weight of intellectual opinion seems to have generally been more sceptical of the merits of liberty than it is today.