Read Online Greece, Rome, and the Bill of Rights by Susan Ford Wiltshire - Free Book Online
Authors: Susan Ford Wiltshire
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more sophisticated environment. Later, emperors and kings were added to the protection list since they too fulfill a unique role. In every case, the criterion for a legal renunciation was in one vital respect the same: inalienable rights were those that touched the public interest.
54
In summary, the individual had not yet emerged in the medieval world. This is due to a host of factors, but chief among them is the primacy of Roman law with its emphasis on the group rather than on the individual in both Church and society. Paradoxically, the influence of Roman law eventually would prepare the way for the secularization of government and the new place of the individual within it. By the end of the twelfth century, Western Europe was in the grip of Roman principles of government supplied by Roman law, having undergone what one observer calls a "bloodless revolution" such as Europe had not known before. 55 Roman law would become both a source of inspiration and a means of accommodation to changebut not yet.
Natural law, too, contained the seeds of the potentially revolutionary idea that the "laws of nature and of Nature's God" might someday be taken to mean that individuals as well as corporations are endowed with rights. The legal renaissance of eleventh-century Italy raised the possibility that there might be a superior code capable of abrogating human laws. This could not happen as long as the Church Universal remained all-powerful, but when the
page_50
Page 50
breakdown occurred in the Renaissance and Reformation, the way was clear for the flowering of these seeds of thought.
56
The pervasive presence of natural law and Roman law in medieval Christian civilization thus helped enhance the possibilities for human freedom because they kept alive the possibility of conflicting loyalties that eventually would clear a space for the individual in society.
In the meantime, a theory of individual rights emerged from contemporary events in feudal medieval England, where Roman law was giving way to common law and creating yet another set of conditions conducive to human liberty.
page_51
Page 51
Chapter 3
English Beginnings: Common Law and Magna Carta
Magna Carta is such a Fellow, he will have no Sovereign. S IR E DWARD C OKE
The Romans considered Britain to be so far removed from the center of civilization that the poet Catullus (c. 8454 B.C.
) emphasized the separation of the "faraway Britons" by placing the adjective and noun, ultimos ... Britannos , in two different lines of one of his poems.
1 This geographical remove helps account for the very different historical circumstances that shaped the rise of English common law.
English feudalism, evolving at a distance from the Roman jurisprudence that dominated the Continent, brought forth the gradual development of practical legal institutions that ultimately enhanced the role and status of the individual. From as early as the twelfth century in feudal England, common law shielded individual liberty against the aspirations of monarchs because it involved the element of consent.
page_52
Page 52
Feudalism and the Rise of Common Law
In many ways medieval England exhibits in fact if not in theory an ascending form of governance. If the people were supposed to be "subjects," they may frequently not have known it since they were so busy with the daily realities of conducting public business, participating in guilds in which individuals had full membership and elected their own officers, and practicing self-governance in the villages. Customary laws, which as the term implies were the product of customary usage, permeated the affairs of the island, and the rulers tended to give at least tacit approval to these lay laws by having "all the laws in their breasts." The practical deployment of individual capabilities among persons in the lower strata of society thus provided a bridge between the medieval and humanistic theses.
2
Feudalism was contractual in nature, a matter
54
In summary, the individual had not yet emerged in the medieval world. This is due to a host of factors, but chief among them is the primacy of Roman law with its emphasis on the group rather than on the individual in both Church and society. Paradoxically, the influence of Roman law eventually would prepare the way for the secularization of government and the new place of the individual within it. By the end of the twelfth century, Western Europe was in the grip of Roman principles of government supplied by Roman law, having undergone what one observer calls a "bloodless revolution" such as Europe had not known before. 55 Roman law would become both a source of inspiration and a means of accommodation to changebut not yet.
Natural law, too, contained the seeds of the potentially revolutionary idea that the "laws of nature and of Nature's God" might someday be taken to mean that individuals as well as corporations are endowed with rights. The legal renaissance of eleventh-century Italy raised the possibility that there might be a superior code capable of abrogating human laws. This could not happen as long as the Church Universal remained all-powerful, but when the
page_50
Page 50
breakdown occurred in the Renaissance and Reformation, the way was clear for the flowering of these seeds of thought.
56
The pervasive presence of natural law and Roman law in medieval Christian civilization thus helped enhance the possibilities for human freedom because they kept alive the possibility of conflicting loyalties that eventually would clear a space for the individual in society.
In the meantime, a theory of individual rights emerged from contemporary events in feudal medieval England, where Roman law was giving way to common law and creating yet another set of conditions conducive to human liberty.
page_51
Page 51
Chapter 3
English Beginnings: Common Law and Magna Carta
Magna Carta is such a Fellow, he will have no Sovereign. S IR E DWARD C OKE
The Romans considered Britain to be so far removed from the center of civilization that the poet Catullus (c. 8454 B.C.
) emphasized the separation of the "faraway Britons" by placing the adjective and noun, ultimos ... Britannos , in two different lines of one of his poems.
1 This geographical remove helps account for the very different historical circumstances that shaped the rise of English common law.
English feudalism, evolving at a distance from the Roman jurisprudence that dominated the Continent, brought forth the gradual development of practical legal institutions that ultimately enhanced the role and status of the individual. From as early as the twelfth century in feudal England, common law shielded individual liberty against the aspirations of monarchs because it involved the element of consent.
page_52
Page 52
Feudalism and the Rise of Common Law
In many ways medieval England exhibits in fact if not in theory an ascending form of governance. If the people were supposed to be "subjects," they may frequently not have known it since they were so busy with the daily realities of conducting public business, participating in guilds in which individuals had full membership and elected their own officers, and practicing self-governance in the villages. Customary laws, which as the term implies were the product of customary usage, permeated the affairs of the island, and the rulers tended to give at least tacit approval to these lay laws by having "all the laws in their breasts." The practical deployment of individual capabilities among persons in the lower strata of society thus provided a bridge between the medieval and humanistic theses.
2
Feudalism was contractual in nature, a matter
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