University of Virginia Library

II

Some conception of a higher law will be found
throughout the history of Western political thought.
Thus in the very early Greek classical period Heraclitus
taught that “all human laws are sustained by the one
divine law, which is infinitely strong, and suffices, and
more than suffices, for them all” (quoted in Andrews

[1968], p. 15). Generally speaking, however, the an-
cient Greeks made no distinction between the state
and society. In their view the state is as old as human
association itself, from which it followed that there was
no natural law older than the law of actual states. For
them, the law of nature merely meant the actual laws
which were the same in all states. Furthermore, since
the ancient Greeks had no concept that an unconstitu-
tional law is unenforceable, they had no remedy for
an unconstitutional act short of actual revolution. For
them a revolution did not merely change the public
law of the state; it changed the whole state and its
institutions, which was a very compelling reason why
revolution was so much feared.

Plato believed that human law was at best an imper-
fect reflection of an idea in the world of ideas. Contrary
to the teaching of the later Stoics, he believed that
the law of nature was merely an intellectual standard,
a basis for comparison, and most certainly not a basis
for actual judicial decisions. His ideal, or best form of
government, as set forth in The Republic, was one ruled
over by philosopher-kings who were not limited by
law. But he came to believe that supermen with the
necessary divine qualities were not and were not likely
to become available. Accordingly, in his later thought,
as expressed in The Statesman and in the Laws, Plato
settled for constitutional government, but only as sec-
ond best. The best sort of government would be one
unhindered by law, but this was only an ideal, and he
believed that actual states can only approximate the
ideal. Whether the state had one or several rulers, his
main point was that in a constitutional system govern-
ment is limited by law derived from the uniformities
of nature.

Aristotle, fully committed to the politics of modera-
tion, rejected Plato's ideal state as a form of despotism,
however benevolent. He was unwilling to vest un-
restricted power in any particular individual or class,
and insisted that those who exercise the powers of
government must be guided by the law. Thus he fa-
vored constitutionalism in that the guiding principle
of rulership was the rule of law, not force. He thought
that governments must be responsible to the governed,
and that freedom depends upon the right of men to
have a hand in making the laws they are required to
obey. The rule of law also meant for Aristotle that all
men are equal under the law. The procedural aspects
of constitutionalism were well developed in Aristotle's
Politics. A constitution, he wrote, is “in a sense the
life of the city.” Thus he emphasized law, rather than
human will, as the repository of the basic norms of
the political society.

Natural law theory, which has been an essential
element of concepts of constitutionalism, received its
earliest significant development in the thinking of the
Stoics of Greece and Rome after about 300 B.C. Thus
Cicero made a characteristic statement of the nature
of natural law in the following words:

(Coker [1938], p. 151).

In accordance with this point of view, the Roman
jurists established a basic distinction between public
law (jus publicum) and private law (jus privatum).
Furthermore, it was a basic principle of Roman juris-
prudence that the ultimate source of all legitimate
political authority in a state is the people, not the ruler.

This principle prevailed through the Middle Ages.
That all political authority is limited by a higher law
was a staple of medieval political thought. The medie-
val schoolmen regarded the origin of natural law as
divine since they tied natural law to God. Illustrative
of this view is the statement of Thomas Aquinas in
the Summa Theologica that man as a “rational creature
... has a share of the Eternal Reason... and this
participation of the eternal law in the rational creature
is called the natural law” (Pegis [1948], p. 618). Thus
God and reason were fused. Above all, the natural law,
along with the Church and the feudal nobility, limited
the power of the king. This is suggested by the well-
known observation of John of Salisbury in Policraticus
(1159) that “there are certain precepts of the law which
have a perpetual necessity, having the force of law
among all nations, and which absolutely cannot be
broken with impunity” (Sabine [1937], p. 247). John
distinguished between a proper king and a tyrant in
terms of whether the ruler obeyed the law.

For medieval England, Magna Carta (1215)
strengthened the traditional view that the law is su-
preme. This supremacy was best stated in Chapter 39,
which declared: “No freeman shall be taken or im-
prisoned or disseised or outlawed or exiled or in any
way destroyed, nor will we go upon him nor send upon
him, except by the lawful judgment of his peers or
by the law of the land (vel per legem terre).” Magna
Carta derived a great measure of its influence from
repeated confirmations by later rulers (there were
forty-four confirmations between 1327 and 1422), and
from its revival and reinterpretation by Coke and other
lawyers and judges in the conflict between parliament
and the Stuart monarchy in the seventeenth century.
Thus, in the words of Arthur Sutherland, “the Great

Charter was obviously a cherished standard, a welcome
assurance that people could set some limitation on the
arbitrary powers of the king” (Constitutionalism in
America, p. 31).

Writing in the thirteenth century, Bracton, a justice
of King's Bench in the reign of Henry III, and the most
important English law writer before Blackstone, de-
clared in De legibus et consuetudinibus Angliae that
the law “is not anything rashly presumed by will of
the king, but what has been rightly defined with the
king's authorization on the advice of his magnates after
deliberation and conference concerning it.” In this
philosophic treatise on the laws and customs of Eng-
land, Bracton distinguished between “government,”
which was within the king's control, and “right,” which
was based on ancient custom, the elements of which,
“since they have been approved by the consent of those
using them and confirmed by the oath of kings, can
neither be changed nor destroyed without the common
consent of all those with whose counsel and consent
they have been promulgated” (McIlwain [1947], p. 83).
To put it somewhat differently, Bracton made a basic
distinction between government (gubernaculum) and
law (jurisdictio), and held that the king's absolute au-
thority extended only to the former. The basic weak-
ness of this concept, and indeed the fundamental in-
adequacy of all medieval constitutionalism, was that
there was no way to combat violations of the law
except by revolutionary violence or the threat of its
use.

The supremacy of the law over government was
greatly strengthened in England by the stirring events
of the seventeenth century, culminating in the Revolu-
tion of 1689, which made the royal title dependent
upon an act of parliament, the Act of Settlement of
1701, which gave the judges a tenure independent of
the will of the king, and which established parlia-
mentary control over the government. As Coke, one
of the leading spokesmen of the resistance to Stuart
claims to absolute power, declared in 1610: “That
ligeance or obedience of the subject to the Sovereign
is due by the law of nature: 2. That this law of nature
is part of the laws of England: 3. That the law of nature
was before any judicial or municipal law in the world:
4. That the law of nature is immutable, and cannot
be changed.” Speaking as a Justice of the Court of
Common Pleas, Coke went so far in Dr. Bonham's Case
(1610) as to declare that under certain circumstances
the judges could refuse to enforce even an act of Par-
liament, “for when an act of parliament is against
common right and reason, or repugnant, or impossible
to be performed, the common law will controul it and
adjudge such act to be void.” Similarly, in his historic
debate with James I, Coke asserted that “the King hath
no prerogative, but that which the law and the land
follows.”

While Coke's contention that the judges have the
power to refuse to enforce acts of Parliament which
they deem to be contrary to the supreme law of the
land, now known as the power of judicial review, did
not prevail in subsequent English practice, his view
that Magna Carta, later strengthened by frequent royal
confirmations, was a compact between ruler and the
ruled binding upon government, merged quickly into
broad theories of social compact and natural law which
contributed much to the modern history of higher law
concepts.

The great natural law philosophers of the sixteenth
and seventeenth centuries—such as Hugo Grotius,
Samuel Pufendorf, Algernon Sydney, and John Locke—
took God out of the law of nature and made it the
basis for the modern secular constitutional state. For
John Locke (Second Treatise on Civil Government,
1690), government was based on a social contract
entered into in a preexisting state of nature operating
under natural law, and for him natural law became
the natural rights of the individual. Since the purpose
of the social contract was to create government in
order more effectively to protect man's natural rights,
Locke, as the justifier of the Revolution of 1689, con-
cluded that when government fails of its central pur-
pose the people regain the right to create a new social
contract. The state, therefore, is committed to consti-
tutionalism, the terms of which are spelled out in a
social contract which controls the acts of government.