Locke, Liberty and the Legal Tradition

In the Edexcel-approved textbook on political thought, McNaughton describes how liberalism was a product of Reformation protestantism and of the Enlightenment.  This is true to a certain extent, but, as Isaiah Berlin reminds us in his essays on liberalism, the Protestant Reformation also brought about Calvinism, which can hardly be said to be liberal.

What McNaughton completely ignores are other traditions that prepared the flowerbeds of liberalism.  For the A level course, the first liberal thinker is John Locke.  Locke was the son of a lawyer, and he himself was given a good classical education at Westminster and Oxford.  We can confidently say, therefore, that he grew up with both the influence of classical works (such as, for example, Plato’s Republic) and the English legal tradition – as well as being interested in contemporary philosophers such as Descartes.

Now, the English legal tradition is rather an important element of liberalism.  You cannot have a liberal society unless you have the rule of law.  (For the rule of law, see this blog post.)  Indeed, Locke bases his assumptions about liberal society on society, in its natural state, being bound by ‘natural law’.  The rule of law was reiterated, and perhaps established, by Magna Carta in 1215, and successive statutes and events backed this up.  The king was not above the law, and certainly not above his lords – look at the ‘abdications’ of Edward II and Richard II.  By the mid-16th-century, the king was theoretically part of, and not above, Parliament – a sort of Trinitarian concept:  Parliament was the Commons, the Lords and the Monarch, rather like God being the Father, Son and Holy Ghost.  So by the 17th century, when Charles I was attempting absolute rule, English political and legal thought had the monarch within the rule of law, and acting for his/ her subjects.

Sir John Fortescue, a fifteenth-century lawyer, described the kingdom being ruled ‘politicum et regale’, as opposed to the poor old oppressed French, who have a monarch ‘regale’.  (The translations are literally ‘politic’ and ‘royal’ – i.e. popular, in the interests of the people, and royal, or absolute.)

“And they differ in that the first king [‘regale’] may rule his people by such laws as he maketh himself. And therfore he may set upon them tailles [taxes] and other impositions, such as he will himself, without their assent. The second king may not rule his people by other laws than such as they assent unto. And therefore he may set upon them no impositions without their own assent.”

It should be quite clear why Charles lost his head:  he tried to rule as a ‘regale’ king in a kingdom which was ‘politicum et regale’.  This is where Locke comes from – Hobbes too, for that matter.  Hobbes is quite clear that a monarch needs to be ‘politicum et regale’ as much as Locke is, but his conclusions are a bit different. 

To this English strand of political thought is added Italian scholastic republican thought, which was translated and printed in England in the early 17th century.  This, of course, originated from firmly Catholic writers – and so we have to amend McNaughton’s account, and make it more broad and complex:  liberalism came about because of Catholic political theorists, English jurists, and then the Reformation and Enlightenment.

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