II
Jewish Law contributed powerfully to the ideal of
freedom. The enslavement of the Israelites under the
Egyptians led them to found a society in which
Pharaohs had no place and in which individuals owed
allegiance only to God, thereby obviating the need to
depend on any human institution. But their assertion
of independence went further, for even the rulership
of God had to rest on voluntary acceptance, which
is alleged to have occurred in the Covenant with
Abraham (Genesis 15:18), and to have been renewed
with Isaac and Jacob. This arrangement also set a
pattern for the benevolent use of power by the ruler.
The later appointment of Saul as king in 1037 B.C.
amounted to a rejection of God's rulership, but the
king's own position still rested on a contract with his
people. The partnership between God and Man in the
latter's development towards holiness led to an em-
phasis on discipline and corresponding restraint on
liberties of action. At the same time, be it noted, these
ideas must be considered in the light of the social
structures of the age, for slavery was recognized, and
equality did not obtain between men and women.
Throughout the Greek era the background was one
of precarious social stability, which tended to empha-
size moderation and preservation of the status quo.
Solon, it is true, sought to limit power by means of
the idea that men should have a say in selecting those
to whom they have to submit—the idea of democracy;
but both Plato and Aristotle stressed the need for
restraint in action. The former argued that the re-
straints imposed by society are necessary to develop
virtue in those who possess this capacity. Not all men
are so endowed, for they differ in this respect just as
they differ in physique. Aristotle, for his part, con-
demned democracies in which people acknowledge no
restraints. But it is not enough merely to have laws;
they must be just laws, that is, laws which enable
virtuous people to achieve as far as possible in the light
of their reason the fullness of their nature in society.
A just law favors liberty, and freedom and good gov-
ernment go together. To educate is to develop the
subject in virtue, so it becomes a prime task of the
state to be the school of the citizen. On the other hand,
slaves should accept their lot, since some people are
slaves by nature. Indeed, it is the very service of wise
and virtuous masters that brings out the best in their
slaves; and masters should of course treat slaves with
kindness.
The achievements of the Romans were practical
rather than theoretical. That great repository of Roman
Law, the corpus Juris Civilis, contains passages which
would support absolute authority (e.g., Digest 1.3.31)
as well as the authority of law (e.g., Codex 1.14.4). It
was left to Cicero, who was not strictly a lawyer, to
strike off the ringing statement, “We are slaves of the
law that we may be free” (
Pro Cluentio 53.146). But
he added that there were limits to the use of law. “True
law,” he said, “is right reason in agreement with na-
ture” and from it there can be no dispensation either
by the Senate or the people (
De republica III, xxii).
This doctrine of Man's nature as the “true” source of
law had much influence later. Roman Law recognized
slavery throughout, and there were also grades of free
men who in varying degrees were less privileged than
cives, or citizens. Although it was admitted that slavery
was contrary to Natural Law, it continued because it
suited the economic order. The movement towards
freedom is discernible in three ways. (1) In A.D. 212
citizenship was conferred on free men throughout the
Empire; (2) increasing restrictions were imposed on the
powers of masters over slaves; and (3) there was a
preference for freedom rather than slavery in the in-
terpretation of rules concerning a person's status.
Even early Christian philosophy did not condemn
slavery, or for that matter condemn authoritarian gov-
ernment. The equality of souls in Heaven did not call
for social disruption in order to achieve equality of
bodies on earth. So it was that Saint Paul urged a
fugitive slave to return to his master (Epistle to
Philemon). Saint Augustine, however, sought to explain
slavery as a form of collective retribution for original
sin. All in all the early Christian concept of freedom
was far removed from that of the Jews; it was, in effect,
freedom to enter into the bondage of God.
After the Dark Ages, which followed the Roman era,
the establishment of order required a power structure,
not liberty; the power of monarchs, of the feudal no-
bility and, from the eleventh century onwards, of the
Church. The economic order was the feudal system
under which a person was bound to render service to
the overlord whose land he held. The trends of the
age consolidated power in the sovereign who, on the
one hand, sought to entrench his position and, on the
other, was looked up to by his subjects in their struggle
for freedom from the power of the feudal nobility.
Legal theory was adapted to these ends. Niccolò
Machiavelli in his Discourses characterized republics
as superior to princedoms and as requiring high moral
quality in citizens. People who lack this must be
governed by tyrants, and in his Prince he proceeded
to analyze and advocate absolute monarchy. Thomas
Hobbes in his Leviathan turned to Natural Law. Men,
he said, in a state of nature were so unprincipled that
the life of Man was “solitary, poore, nasty, brutish and
short.” This ended when all people yielded their rights
to a sovereign, who in return for absolute subservience
guaranteed order and a measure of freedom for all.
The sovereign's external independence and internal
omnipotence posed two serious threats. Under the guise
of the “sovereignty of states” the unbridled pursuit of
selfish policies soon reduced Europe to a barbarous
condition which culminated in the Thirty Years War.
Little wonder that voices, notably that of Hugo
Grotius, began to be heard urging restraint. A body
of duties, known as “International Law,” was evolved
in the hope of limiting the liberty of action of states.
But duties lacking enforceability, which is the case with
International Law, are of little avail, and today, when
the weapons of war are assuming increasingly mon-
strous proportions, the continued insistence on the
sovereignty of states foreshadows a very bleak future
indeed. In the municipal sphere the individual, who
had trusted so fondly to his sovereign to be a bulwark
against feudal oppression, soon found that he had ex-
changed one tyrant for another. Accordingly, John
Locke was moved to argue that when men in a state
of nature entered into the primeval contract with the
sovereign, they surrendered to him only the right to
preserve order. Personal rights to “life, liberty and
estate” could never be surrendered since they were
inalienable, and a sovereign who tries to infringe them
may be overthrown. Locke thus became the philoso-
pher of the revolution of 1688 in England by which
the supremacy of the royal prerogative power was
replaced by that of the Crown in Parliament, and his
theory also furnished the main arguments in the
classic case of Somersett ([1772], 20 State Trials, 1) in
which English Law set its face against slavery for
all time.
In France events took a more drastic turn. Jean
Jacques Rousseau imagined a social contract whereby
sovereignty was surrendered to society as a whole. This
dispensed with the need for a personal sovereign, and
within a few years of his death the French Revolution
put the theory to sinister effect. Once again the pattern
of development was repeated: deliverance from the
evil of untrammelled monarchical power led to the
evil of untrammelled liberty of popular action, which
in turn led to the power of Napoleon.
The problem of protecting the individual was not
to be solved merely by giving him immunity from the
power of the monarch, for power was thereby only
transferred to the faceless institution called “govern-
ment.” Protection against this had to come from an
independent judiciary, that is, one which holds itself
free to weigh governmental interests against individual
interests according to yardsticks of its own. Now, there
is always a measure of interpretative discretion left to
a judge in the application of any rule, and even with
enacted laws a judge can, if he wants, adopt an inter-
pretation favoring the individual. Chief Justice Coke's
assertion in 1612 to King James I that the king was
under God and the Law, was of the profoundest sig-
nificance, for it made the people's ultimate protection
from power rest on the craftsmanship of the law of
which the judges are the exponents, and thereby estab-
lished one of the proudest traditions of Anglo-American
Law.
Where there is a constitution guarded by the courts
their protective function is more pronounced. Baron
de Montesquieu, in his Spirit of Laws (De l'esprit des
lois, 1748), believed the secret of freedom to lie in
vesting the legislative, executive, and judicial powers
of government in separate bodies. Under the Consti-
tution of the United States, which embodies this idea,
the Supreme Court has frequently declared Acts of
Congress to be void for infringing fundamental rights.
Yet another way in which the courts might help is by
refusing to uphold the exercise of legislative power
which, though not unconstitutional, is nevertheless
immoral. Discriminatory racial laws are an example.
Until now, courts have generally not concerned them-
selves with the morality of laws, but it is possible to
find a basis for at least some judicial control. Nearly
every revolution or constitutional settlement takes
place as a reaction against an abuse, and the moral
objectives behind the new power distribution are
built-in limitations on its future exercise. To argue that,
no matter what the circumstances of its origin, power
somehow becomes absolute, is an illogical assumption
and one which has had the sorriest consequences.
Whether courts will adopt this line of approach re-
mains to be seen.
