Early civilisations had a simple, self-sufficient and communal way of life orientated around natural law, which involved unwritten moral codes in which people were respectful of their environment and each other; including beliefs that the Earth was the centre of everything, given to everyone equally by God and provided all sustenance for life. As societies grew and developed into empires with rulers and the church in the powerful positions to create laws which economically and religiously codified, standardised and regulated the life of the population, and changed the expectations of society and resources. Religious leaders ordained the divine right of kings, allowing monarchs to be the only sovereign of the state as they proclaimed they were rulers directly chosen by God. This created the legitimacy of religious laws embraced by the people, developing insidious institutionalisation of the state, intent on private economic growth. The objective of this essay is to critically discuss the achievements and limits of classical liberal jurisprudence by outlining the arguments during the Enlightenment which brought about fundamental and significant changes to society which still has an impact on our lives today.
After the abolition of feudalism, the period of Enlightenment began the discussion of the rights of man. Hugo Grotius was key in acknowledging and developing the modern concept of rights, moving away from medieval ideas dictated by the church. His belief was that God created the world for all of human life and the laws which govern us, and therefore concluded that God was law (Freeman, 2011, pp. 22).
The state, in the view of political philosopher Thomas Hobbes, was essential to a cohesive civilisation as without it the State of Nature would be ‘nasty, brutish and short’ where there would be ‘a war of all against all’ (Hobbes, 1968). Men are naturally and exclusively self-interested, and coupled with limited resources and no power available to force men to cooperate, a level of distrust forms and all civilisation ends in chaos. However, because people are rational, Hobbes argues that they will choose to submit to the authority of a Sovereign in order to live in a civil society with laws, which they instinctively know is in their best interests.
The state is the overseer of all life in society which puts in place laws which all men are to adhere to, including the monarch, and is considered to be the embodiment of reason. In order to get acceptance for the state to be legitimised by the people, rights and obligations were created whereby all citizens gave away some of their freedom in exchange for security from ill treatment from others. This is the creation of the social contract which emancipated people from feudal life and gave freedom to seek employment outside the control of landowners; fair trials and punishments and the ability to enjoy their own private property. The right to private property is central to classical jurisprudence because “private property…made possible the break from stagnation and the narrow boundaries which had hemmed in the old world.” (Fine, 2002, pp.12) but it also was the beginning of universal justice. A contract is created in which individuals collectively and reciprocally renounce the rights people had against one another in the State of Nature and agree to live together under common laws, and create an enforcement mechanism for the social contract and the laws that constitute it. This is seen today as the criminal justice system and the enforcers of the law – police. Society becomes possible because, as with the State of Nature there was no power to control behaviour, there now exists artificially and conventionally superior and more powerful people who can force men to cooperate in the form of the Sovereign.
John Locke, a political philosopher in the 17th century, influenced by Hobbes, believed society should have a minimal state which allowed for the right to personal property with trades regulated and protected. He wished to uphold the notion of natural law stating ‘no one ought to harm another in his life, health, liberty, or possessions’ (Locke, 1988). Private property is created when a person mixes his labour with the raw materials of nature, whereby if someone tills a piece of land in nature, and makes it into a piece of farmland, which produces food, then there is a claim to own that piece of land and the food produced upon it. Under natural law, morally no one is allowed to take more than they can use which would cause others to go without because nature is given to all of mankind by God for its common subsistence. The Enlightened thought believed sovereignty, liberty and free conscious humans were highly compatible with early forms of capitalism as it allowed for the freedom of movement, trade and private property; but it always favoured the wealthy who would accumulate wealth through the purchase of property during the death throes of feudalism. Lords appropriated communal land in order to rent it out to the property-less to gain continual income.
The government acts as facilitators of the ‘neutral’ state and exercises power through the rule of law which is written down and publicised (and reflects the will of all), enforced by civil servants including the police, lawyers and judges. Political society comes into being when individual men, representing their families, come together in the State of Nature and agree to each give up the executive power to punish those who step over the Law of Nature, and hand over that power to the public power of a government. Having done this, they then become subject to the will of the majority. In other words, by making the change to leave the State of Nature and form society, they make “one body politic under one government” (Locke, 1988) and submit themselves to the will of the state. Having created a political society and government through their consent, men then gain three things which they lacked in the State of Nature: laws, judges to adjudicate laws, and the executive power necessary to enforce these laws. Locke replaced the idea of natural law with positive law, naturalising the tensions between the rule of law being essential to civilised social life and it being the result of the power wielded by the bourgeoisie.
When mentioning people as sovereigns to the state, Locke was not talking about all citizens, only ‘heads of households…excluding women children, servants, fools and criminals’ (Fine, 2002). While Locke uses Hobbes’ notion of the State of Nature, as do virtually all social contract theorists, he uses it to a quite different end. Locke’s arguments for the social contract, and for the right of citizens to revolt against their king were enormously influential in the democratic revolutions that followed, including the American Civil War. Thomas Jefferson, one of the United States’ founding fathers, wrote as part of the US Constitution that life, liberty and the pursuit of happiness were important to its citizens (Jefferson, 1776).
Jean Jacques Rousseau (1762) believed ‘man was born free yet everywhere in chains’ to critique the modern state. In his Discourse on Inequality (1984) he creates a four part account of the moral and political evolution of human beings over time, from a State of Nature to modern society. It firstly contains his naturalised account of the social contract, which he sees as very problematic. Rousseau then creates a social contract which was meant to solve the problems that modern society has created for citizens, laid out in the ‘Second Discourse’ (1984) where private property, which he sees as the moment in humanity’s evolution out of a simple, pure state into one characterised by greed, competition, vanity and inequality, which results in the detachment from the State of Nature.
Having introduced private property, initial conditions of inequality became more pronounced. Some citizens have property whereas others are forced to work for the propertied, resulting in the development of social classes. Eventually, those who have property notice that it would be in their interests to create a government that would protect private property from those who do not, but are able to acquire it by force. Through a contract, government is established, which purports to guarantee equality and protection for all, even though its true purpose is to naturalise the very inequalities that private property has produced. In other words, the contract, claims to be in the interests of everyone equally,when it is really in the interests of the few who have become stronger and richer as a result of the developments of private property. The legitimacy of state is important in order to create social cohesion. By offering reciprocal rights and duties, subjects can be seen to obey laws, give taxes, cooperate with policy and even fight in the state’s defence. The state is there to represent the will of all and is objective, neutral and resolve conflicts. This is an idealistic approach which has not been seen, as wealthy families’ control and influence governmental sectors, even today. The state is necessary to social order and human civilisation and to perpetuate the class systems and inequality.
Humans are essentially free, and were free in the State of Nature, but the ‘progress’ of civilisation has substituted subservience to others for that freedom, through dependence, economic and social inequalities, and the extent to which we judge ourselves through comparisons with others. Rousseau maintains, by submitting our individual, particular wills to the collective or general will, created through agreement with other free and equal persons, we can achieve freedom in a society of rules. Like Hobbes and Locke before him, and in contrast to the ancient philosophers, all men are made by nature to be equals, therefore no one has a natural right to govern others, and therefore the only justified authority is the authority that is generated out of democratic agreements.
Some argue that ‘consent’ is distinctive of liberal democracy but Beetham, D. (‘Political Legitimacy’ in. Nash et al. 2008. pp 107 – 116) argues that the popular authorisation of government rather than popular consent is the distinctive feature of liberal democracy and its legitimisation. Subordinates elect from a group of people already picked from other authorities such as the church, party members, self-appointment et cetera. It is the constitutional rule of law and protection of individual rights started during the bourgeois revolutions which has differentiated liberal democracy to other regimes which have not managed to survive to modernity. But there are issues with liberal democracy which includes the inescapable tensions between economic and social inequalities necessary for capitalism. Although everyone is treated equal under the law, E. P. Thomson believes that a paradox is created whereby the ruling class need the rule of law to facilitate their agenda through coercion, but at the same time the law restricts their ability in controlling by force when he said “the great gentry were content to be subjected to the rule of law only because this law was serviceable and afforded to their hegemony the rhetoric of legitimacy” (pp.269, 1976).
It is believed rights are there to empower the ordinary citizen but people have diverse opinions and do not have a voice unless they are associated with large political systems. A hegemonic view of society which favours the ruling class due to naturalised societal norms which believe in the good of the ruling class results in a tyranny of the majority whereby citizens are prone to further subjugation; particularly ethnic and religious minorities, women and the poor. As Thomson said “…the rule of law is only another mask for the rule of class” (pp. 259, 1976). The French Revolution tried to counter this inequality by creating a new class system which allowed for social movements to make claims against the state. Their new rational-legal state implied an equal democracy to allow for the progression to new universal rights to previously ignored citizens. This led the way to black citizens and French colonies receiving equal rights as French citizens and women the right to divorce in 1791.
However, the social contract created easier trade arrangements which were rationalised because of the naturalised exploitative trading practices which allowed ‘free’ individuals to voluntarily enter contracts with the bourgeoisie after they removed serfs from land and properties. As Marx explained in Capital (1990), the bourgeoisie has mystified the proletariat into thinking they are now free, when in fact they were entrenched by the rule of law as labour is now a fetishised commodity. However, Marx ignores other forms of social dominance, such as ‘patriarchy, ethnic, ‘racial’, hegemonic masculinities, interstate, regional and territorial etc. which also ignores the disorganisation of the classes, as none are unified.’ (Jessop, B., 2008 pp. 3 – 14). Liberal theory only took into consideration the white European male when developing human rights which saw ethnic minorities and women left behind in universal suffrage, equal rights to work and education. The French were the first nation to introduce rights to women and minorities after the Revolution of 1789, although Napoleon Bonaparte reinstated slavery in 1802 when the slaves of Saint-Domingue were revolting for their independence from France (Dubois, 2004). The idea of human rights is seen by many Post Colonialists as another form of discrimination as they impose European/Western ideologies onto others who do not share the same values and social practices, and because of that difference, an ‘otherness’ develops where European values and way of life are superior because it is deemed as civilised. This reinforces old stereotypes seen during colonialism but it is also worth noting ‘… [t]he Arab and Islamic world as a whole is hooked into the Western market system. No one needs to be reminded that oil, the region’s greatest resource, has been totally absorbed into the United States economy (Said, 2003). Said explains that the West is still exploiting human life because it is still fixated on the capitalist economic market which is powered by inequality. Butler (2008) believes that Judeo-Christian influences throughout history has led to deep rooted social norms which have been unconsciously incorporated into secular Western way of life and the notions of civilisation and modernity. These rationales are used by governments to legitimate modern day imperialism through coercive military assaults against the Middle East which is celebrated by the citizens of the West due to the sense of otherness which sees foreign citizens as inhuman and pre-modern who need to be ‘freed’ from the restraints of backwards religious thought. To get rid of discriminatory state practices which are carried out in the name of universal freedom, Butler proposes that we first need to ‘critique state violence and the power it wields to construct the subject of cultural difference’ (2008, pp 21) and instead base our ideas of freedom on a basic human level rather than from outdated and bigoted pseudoscience and religious dogma.
Just like the philosophers of the Enlightenment who saw themselves as modern pioneers in universal equality, we also believe that of ourselves by comparing our present to the past and comparing our progression today on that past. However, it is by looking at the past and basing our future on it instead of starting from a new beginning entirely based on true equality which is perpetuating a cycle of Western imperialism throughout the world where the ruling class still dictates the social practices, behaviours, attitudes and laws as they did in the beginnings of capitalist society.
References
Beetham, D. 2008. Political Legitimacy in ‘Nash, K. Amenta, E., Scott, A. 2008. Wiley – Blackwell Companion to Political Sociology’. Blackwell: Oxford
Butler, J. 2008. Sexual Politics, Torture and Secular Time. The British Journal of Sociology. 59 (1) pp. 1 – 23
Dubois, L. 2004. Colony of Citizens: Revolution and slave emancipation in the French Caribbean, 1787 – 1804. UNC Press: USA
Fine, B. 2002. Democracy and the Rule of Law: Marx’s critique of the legal form. Blackburn Press: New Jersey
Freeman, M. 2011. Human Rights: An interdisciplinary approach. Polity Press: London.
Hobbes, T. 1968. Leviathan, Harmondsworth: Penguin Books.
Hume, D. 1978. A Treatise of Human Nature, Oxford: Oxford University Press.
Jessop, B. 2008. Marxist Approach to Power in ‘Nash, K. Amenta, E., Scott, A. 2008. Wiley – Blackwell Companion to Political Sociology’. Blackwell: Oxford
Jefferson, T. 1776. Declaration of Independence. [Online] Available from: http://www.archives.gov/exhibits/charters/declaration_transcript.html [Accessed 7 March 2016].
Locke, J. 1988. Two Treatises of Government, Cambridge: Cambridge University Press.
Marx, K. 1990. Capital Vol 1. Penguin: London
Rousseau J.J., 1984. A Discourse on Inequality, Harmondsworth: Penguin Books.
Rousseau J.J., 1973. The Social Contract and Discourses, London: Dent.
Said, E. 2003. Orientalism, Penguin: London
Thomson, E. P. 1976. Whigs and Hunters: The origin of the Black Act. Penguin: London
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