Natural Rights and the New Republicanism

Michael Zuckert

• Publisher: Princeton University Press
• Year: 2011
• Print ISBN: 9780691059709, 9780691034638
• eBook ISBN: 9781400821525
• Topic: Philosophy
• Subtopic: Political Philosophy

In Natural Rights and the New Republicanism, Michael Zuckert proposes a new view of the political philosophy that lay behind the founding of the United States. In a book that will interest political scientists, historians, and philosophers, Zuckert looks at the Whig or opposition tradition as it developed in England. He argues that there were, in fact, three opposition traditions: Protestant, Grotian, and Lockean. Before the English Civil War the opposition was inspired by the effort to find the "one true Protestant politics--an effort that was seen to be a failure by the end of the Interregnum period. The Restoration saw the emergence of the Whigs, who sought a way to ground politics free from the sectarian theological-scriptural conflicts of the previous period.


The Whigs were particularly influenced by the Dutch natural law philosopher Hugo Grotius. However, as Zuckert shows, by the mid-eighteenth century John Locke had replaced Grotius as the philosopher of the Whigs. Zuckert's analysis concludes with a penetrating examination of John Trenchard and Thomas Gordon, the English "Cato," who, he argues, brought together Lockean political philosophy and pre-existing Whig political science into a new and powerful synthesis. Although it has been misleadingly presented as a separate "classical republican" tradition in recent scholarly discussions, it is this "new republicanism" that served as the philosophical point of departure for the founders of the American republic.

PART ONE

Protestants

CHAPTER ONE

Aristotelian Royalism
and Reformation Absolutism:
Divine Right Theory

WHETHER Locke and the Whigs, or whether the English Whigs of 1688 and the American Whigs of 1776, spoke with one voice or not, there was surely one thing they were all agreed in—their opposition to the political doctrine of the divine right of kings. Locke’s most important political writing, his Two Treatises of Government, contains a lengthy and detailed commentary cum refutation of one of the leading divine right theorists, and Locke’s was but one of several such large-scale efforts to refute that particular thinker. Even as late as fifty years after the American Declaration of Independence—that is, more than two centuries after the emergence of the divine right position—Thomas Jefferson was still citing divine right as the enemy. He made the point with his usual eloquence in a moving fiftieth-anniversary rumination on the Declaration of Independence: “The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”¹ Opposition to monarchy by divine right formed a stable part of every current of political thought that might be held to flow into the Whig tradition. The divine right theory stood then as probably the clearest element within the context of political thought out of which Locke’s philosophy ultimately emerged.

At the same time, the very depth and breadth of the opposition to divine right monarchy obscures the variety within that context, and contributes to views like John Dunn’s, that Locke, the English Whigs of 1688, and the American Whigs of 1776 all spoke with one voice.

The divine right doctrine, firmly fixed and widely repellant as it was, nonetheless was itself quite new in England in the seventeenth century. When exactly it came to England is highly uncertain, but its emergence and rise to prominence reveals especially well the underlying dynamic at work in the development and ultimate clash of systems of political thought in the seventeenth century. It has been widely noted that this was the era in which the English were engaged in strenuous efforts to discover and implement the “correct” implications of the Protestant Reformation for church organization, governance, and liturgy.² Having largely postponed that effort for a variety of reasons under Elizabeth, the nation set off on this task in the seventeenth century with an earnestness and intensity that surprised—and ultimately terrified—many of the participants. The transforming pressures to which the Reformation subjected issues of ecclesiology are thus widely recognized; however, the same transforming pressures, with the same disruptive results, were at work in the sphere of political thought. The first half of the seventeenth century was marked not only by the theologico-political conflict which eventuated in the Civil War but by the reworking of inherited modes of political thought, with the result that new doctrines, far more extreme and far more opposed to each other than anything that had prevailed in England to that time, emerged and vied with each other for supremacy. At one extreme lay the full-grown divine right theory as it appeared ultimately in the work of Sir Robert Filmer, at the other a variety of Protestant contractarian doctrines. Some of these doctrines, like that of Philip Hunton, were rather moderate; others, like the one that reached semi-official status in John Milton’s powerful prose, were just as extreme, in a mirror-image sort of way, as Filmer’s. That the development of political thought in the seventeenth century saw the emergence on English soil of these two alternative theories about the origin and nature of political authority, divine right, and contract was striking in itself; what was really remarkable was the fact that both developed as efforts to work out the authentic meaning of the Protestant principle for politics. Both had a plausible claim to having done so, and that, it turned out, was the real problem.

The divine right doctrine proved so antithetical to so many different streams of political thought in the seventeenth and eighteenth centuries that theorists who would otherwise see each other, and be seen by outside observers, as quite antithetical made common cause against it. Even today, scholars treat as altogether similar such very different thinkers as Richard Hooker, Philip Hunton, Richard Baxter, and John Locke on the basis of their common rejection of divine right doctrines.

DIMENSIONS OF DIVINE RIGHT

Although it is difficult to identify the exact origin of the divine right doctrine, Locke believed he knew “by whom this doctrine came at first to be broach’d, and brought in fashion amongst us.” A contemporary historian seconds his judgment: “Both the theory and practice of absolutism came to England with James I.” A monarch who prided himself on his scholarly talents, James authored and published anonymously his Trew Law of Free Monarchies in 1598, when he was king in Scotland, before being called south to succeed Elizabeth. Soon after his arrival in England, his book was reprinted there. Although he did not originate the doctrine, his sponsorship of it did give it a definite éclat.³ There was always a nice symmetry and even some irony to the careers of the Stuart monarchs—at the head of the line James I, riding in triumphantly from Scotland to succeed Elizabeth, the murderer of his mother; two generations later, his grandson and namesake, James II, skulking off in the dark to France in order to escape the bloody fate of his father, Charles I, and about to be succeeded by his daughter and her husband. It would be not too much of a historical exaggeration to say that the divine right theory arrived in glory with James I and slunk off in shame with James II. The idea remained sufficiently alive for Whig polemicists like Benjamin Hoadley and Cato, and the American Whigs in general, to continue the assault against it until well into the eighteenth century, but after 1688 things were never the same for the divine right of kings.

Jefferson was surely correct to contrast the divine right theory, which he abhorred, with the natural rights philosophy, which he favored; but many of the former doctrine’s advocates would challenge Jefferson’s portrayal of it as an engine of oppression. The divine right theory, tracing the origin of political authority to a divine ordination, did indeed bestow political power “by the grace of God.” But in most if not all versions of the royalist doctrine in the seventeenth century, we do not find an explicit endorsement of the most colorful part of Jefferson’s denunciation—his comparison of divine right rulers and their peoples to riders and horses, respectively. Divine right theorists would deny Jefferson’s implication that the doctrine justified government as entirely for the benefit of the rulers at the expense of the ruled. The power of kings, said an Elizabethan homily, was given lest “all things should come into confusion and utter ruin,” as a protection against “all mischiefs and miseries.”⁴ Even one of the most extreme of the defenders of the divine right thesis, Roger Manwaring, identified the king as the “protector of [his subjects’] persons, lives and estates,” and, more emphatically, as “the procurer of all the happiness, peace, welfare which they enjoy who are under him.”⁵ King James devoted the whole of the first part of The Trew Law of Free Monarchies to the duties kings have to their subjects: the king is to “care for his people” as “the head cares for the body.” James pointedly rejected the idea that “the world [was] only ordained for kings.”⁶ The promoters of the divine right of kings justified it in terms of the common good of the community; this was true even of the most radical of the writers in that tradition, Sir Robert Filmer. Filmer argued, for example, that absolutist monarchies are the only regimes that can keep order and avoid those “mischiefs [that] are unavoidable and of necessity do follow all democratic [i.e., non-monarchic] regiments.” Monarchies, he maintained, even when they degenerate into tyrannies, as sometimes happens, are less bloody than popular governments. “The murders by Tiberius, Caligula, Nero, Domitian and Commodus put all together,” said Filmer, “cannot match that civil tragedy which was acted in that one sedition between Marius and Sulla.”⁷

Much confusion, both historically and today, has resulted from a failure to make certain key distinctions regarding the divine right doctrine. That theory consisted of propositions about political power at four different levels: propositions regarding (1) the “original of political power”; (2) the ends of political power; (3) the extent of political power; and (4) recourse against the misuse of political power. Along these four dimensions one might construct a paradigm of divine right absolutism by asserting that (1) political power derives directly from God to the king; (2) the end of political power is the glory, or welfare, of the king; (3) political power is absolute and unlimited in extent, and wielded by the monarch alone; and (4) there is no recourse whatever against the misuse of political power, if it even makes sense to speak of misuse.⁸

Many critics of the theory assume that partisans of divine right automatically took the absolutist position on all four dimensions of political power. As we have seen, however, divine right theorists did not typically affirm the ends of political life solely in terms of the good of the rulers, but did affirm the common good. Moreover, the advocates of divine right did not necessarily invest unlimited power in the ruler, as is often thought: divine right and absolutism are not necessarily identical. On the one side, we can see this in the political philosophy of Hobbes, who put forth an entirely different doctrine of the origin of political power—contract or covenant—but derived from that origin an absolute power. Some of the divine right theorists, again notably Filmer, also affirmed a royal power of this extent, but not all did.⁹ King James I made the point with extraordinary clarity in a discourse reported to Parliament by the Earl of Salisbury. Although James asserted that “for his kingdom he was beholden to no elective power” but instead “did derive his title from the loins of his ancestors,” he admitted that his powers were by no means unlimited. “He did acknowledge that he had no power to make laws of himself, or to exact any subsidies de jure without the consent of his three estates,” and conceded that the king may not rightfully “command anything directly contrary to Gods word, and tending to subverting of the church.”¹⁰ As Harro Höpfl and Martyn Thompson conclude in summarizing their survey of seventeenth-century writings, “Not even the most determined advocate of monarchical absolutism was disposed to deny . . . a reciprocity of rights and duties.”¹¹ Many, if not all, of the advocates of divine right monarchy thus endorsed some version of the traditional constitution, whereby Parliament shared in certain key powers, most notably the legislative and tax powers. And so J. P. Kenyon, a keen student of the seventeenth-century Constitution, could conclude, “With remarkable unanimity early seventeenth century Englishmen believed that they were bound to abide by the ancient Constitution. . . . In the sphere of practical politics the disagreement essentially lay in how to operate a constitution of whose nature few had any doubts.”¹²

Nonetheless, the limited or constitutionalist character of even the most restrained divine right royalism must not be overestimated. Although “moderates” like King James I theoretically accepted the idea of limits, they insisted that there existed no earthly agent rightly able to enforce these limits. Above all, supporters of divine right denied any right in the people actively to resist, much less to depose, their king: “What shall subjects do then? Shall they obey valiant, stout, wise and good princes, and condemn, disobey, and rebel against . . . indiscreet and evil governors? God forbid.”¹³ However, as James himself averred, that did not mean that kings are beyond all control:

I [do not] mean that whatsoever errors and intolerable abominations a sovereign prince commits, he ought to escape all punishment, as if thereby the world were only ordained for kings, and they without controlment to turn it upside down at their pleasure. But by the contrary, by remitting them to God (who is their only ordinary judge) I remit them to the sorest and sharpest schoolmaster that can be devised for them.¹⁴

Furthermore, that sharp schoolmaster never neglected his corrective task: “Yet does God never leave kings unpunished when they transgress these limits.”¹⁵ With all correction in God’s hands, subjects had no recourse against a faithless or wicked ruler and no legitimate means (other than passive resistance) of enforcing constitutional limits upon a ruler bent on disregarding them.

Moreover, those constitutional limits themselves stood on a precarious footing. According to Roger Manwaring, Parliament did not “contribute any right to kings,” but merely aided in “the more equal imposing, and more easy exacting of that which unto kings doth appertain by natural and original law.”¹⁶ Parliament shared in power as a matter of convenience, not by virtue of any necessity of right. Thus, according to Manwaring, the king could levy charges against the community without parliamentary approval. In a speech to Parliament in 1628, King Charles I came very close to an outright endorsement of Manwaring’s doctrine. He sought money from Parliament, “judging a Parliament to be the ancient, speediest and best way in this time of common danger, to give such supply as to secure ourselves and to save our friends from imminent ruin.” But, he warned, Parliament was not the only way: “If you should not do your duties in contributing what this state at this time needs I must in discharge of my conscience use those other means which God hath put into my hands.”¹⁷

James was more politic and never said such things openly, but he did argue that laws “are properly made by the king only”; so far as the king is limited by law (and thus by the law of the constitution) it is because the king “bound himself by a double oath to the observation of the fundamental laws of his kingdom.” The obligation derives from the king’s “paction made to his people.” A king who “leaves off to rule according to his laws degen...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Introduction
• Prologue
• Part One: Protestants
• Part Two: Whigs
• Part Three: Natural Rights and the New Republicanism
• Notes
• Bibliography
• Index