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Greek philosophers Plato and Aristotle explored the concept of political philosophy (Trajkovic). In the process of exploring such concept, both came to the agreement that the best form of government was that which every man can act best and live happily. In considering how such a government might be organized Plato and Aristotle discussed the concept the rule of law. The rule of law is the principle that no one is exempt from the law even those in a position of power. In his last book, Plato summarized his stance on the rule of law: "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state (Cooper: p.1407)."
From these early beginnings, the rule of law and its relationship to the formation of a state has been a significant topic for philosophical discussion. For Plato and Aristotle law was how order was maintained in society and how the power of the state was controlled but since the days of Plato and Aristotle the function of law in society and its relationship to the nation-state has remained an important philosophical issue. For the most part the debate surrounding this issue is between positivists and natural law schools of thought. The positivists argue that there is no connection between law and morality and that the only sources of law rules that have been enacted by a governmental entity or a court of law. Naturalists, on the other hand, insist otherwise. They argue that moral philosophy, religion, human reason and individual conscience are also essential parts of the law. Naturalists do not deny the need for man-made law but consider such law to be inferior to natural law. The views of Aristotle and Plato are typical of those espoused by naturalists. In fact, Aristotle is considered by most philosophers to be the father of natural law.
The natural law tradition was continued by the Romans. Cicero was the most noted of the Roman legal theorists and a staunch follower of the Greek philosophers. Cicero argued that only just laws deserve the name law and that inherent in the concept of law was the idea that law is what is just and true (Asmis). Although the Roman society in which Cicero lived was to become one based on civil code as opposed to common law, at the base of such legal system was still a strong belief in natural law.
With the rise of the Christian Church in the dying days of the Roman Empire, there was a need to reconcile Christian and Hellenistic thought. The philosopher, St. Augustine, in his seminal work, The City of God, incorporated the two schools of thought and set up the distinction between the highest law which Augustine described as eternal law and positive law (man-made). Augustine subordinated the belief in a natural law of society which for Aristotle and Plato was based on reason and based it instead on faith in God (Raeder). Reason became subordinate to faith and formed the basis for law and order in feudal society. Augustine laid the foundation for the assimilation of natural law with Christian theology but it was St. Thomas Aquinas who completed the synthesis (Hensler). Aquinas continued the dichotomy between the positive law and the natural law and went on to explain that there are good and bad positive laws. The bad positive, man-made, laws, according to Aquinas, are those that either contravene the eternal law or are humanly unfair. Aquinas felt that individuals did not have a moral obligation to obey bad laws unless a greater scandal would result from such disobedience. Unlike Plato and Aristotle who had dreams of a perfect city, Aquinas was willing to accept the fact that some measure of unjust government is to be tolerated and expected. Aquinas, believed that natural law should dominate and that the fundamental principle of natural law is that good is to be done and evil is to be avoided and that this is best done through the divine laws ordained by God. Aquinas argued that the Scriptures provide the basis of the moral values which are the guide for all the formation of all human laws.
In the early 17th century and English philosopher, Thomas Hobbes, appeared on the horizon and offered a different point-of-view from that espoused by Augustine and Aquinas. Hobbes differed in that he did not believe that human beings strive for happiness. His outlook was far less optimistic. Hobbes believed that men not only strive for happiness but they also seek power (Springboro). This pursuit of power provides the motivation, Hobbes argues, for men to organize themselves into a peaceful society where the fear of violence and war can be avoided. From this belief Hobbes laid the foundation for what developed into the social contract theory that eventually formed the basis for most of Western political philosophy. Hobbes argued that through the organization of society through a social contract the natural inclination of men to pursue their own self-interest and seek power could be minimized.
Hobbes and Aquinas had totally different views regarding the concept of natural law. Hobbes believed that there was no superior natural law like Aquinas did. Instead, Hobbes believed self preservation was at the heart of all of man's actions and that any action that ensured self preservation was justified. For Hobbes law was not innate like it was for Aquinas. Men gave up their right to do whatever was in their best interest in order for security and safety and surrendered their individual rights to a sovereign government.
Writing just a few years later, John Locke expanded upon Hobbes' social contract theory but he did so in such a manner as to limit the power of the state. Hobbes did not concern himself too heavily on the rights of the individual and was comfortable with the concept of an absolute sovereign. Locke also brought the concept of God back into the equation (Zuckert). Hobbes largely ignored the role of God and, in fact, was considered by many to be an atheist. Locke's theory was based on the doctrine that there was a God-given natural law that states that all individuals have certain natural rights as human beings that no one can take away from them. Like Hobbes, however, Locke asserted that individuals should be afforded the opportunity to pursue their own interests so long as such pursuit does not impinge on the rights of others. Locke questioned the validity of the absolute sovereign and began the process of advocating for the rights of individuals that had been practically absent in the discussion of natural laws and the establishment of the state through the centuries but such discussion increased in earnest from the time of Locke forward.
To put the development of Locke's theories into perspective one must consider what else was taking place in Europe. It was the Age of the Enlightenment, the Reformation had continued, and the oppression of the Middle Ages had ended. The power of the Catholic Church had been diminished and the concept of religious freedom was gaining in popularity. The freedom to practice the religion of one's choice became a major social issue and this pursuit helped fuel a growth in other individual freedoms as well.
Suddenly, the field of philosophy was transformed by the introduction of David Hume's treatise. Hume suggested that there was no unity between Reason and Morality (Westphal). Hume believed that individuals set their goals on the basis of Morality but utilize their reason to achieve their goals. Like Hobbes and Locke, Hume believed that humans follow their own self-interests but do so in an enlightened manner. Strangely, Hume also believed that this process resulted in the interests of society as a whole being satisfied.
Hume believed strongly in the rule of law and assumed a conservative position in regard to radical change in governmental form. He never expressed any particular preference for any specific form of government but felt that, whatever form the government might assume, its system of laws should be applied fairly. Living in an era that would eventually end with the American Revolution and during which there was considerable conversation regarding the value of overturning existing governments, primarily monarchies, Hume took a position that people should not resist the efforts of their government except in cases where the government is overtly tyrannical.
The quarrel between natural law theorists and legal positivists has been brewing since the ancient Greeks but the overall trend since the Enlightenment has been toward the advantage of the positivists. Immanuel Kant came along and redefined for humanity the idea of natural law and fashioned it as a higher order of justice (Insole). Kant explained natural law in such…[continue]
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