Essay Preview: Law
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THE LAW.
“The history of law is the history of civilization, and law itself is only the blessed tie that binds human society together. Our long armed and hairy ancestors had no idea of redress beyond vengeance, or of justice beyond mere individual reprisal. …
The law, like everything we do and like everything we say, is a heritage from the past.”1
THE LAW AND CIVILIZATION:
THE AGE OF REASON:
LOCKE:
DEFINITION OF LAW:
NATURAL LAW:
HOBBES:
RULE OF LAW:
CONCLUSIONS.
FOOTNOTES.
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The Law and Civilization:-
To state it in its extremes: Law is a cobweb,2 entangling the weak, the sport of the strong; however, those in the law, most, take the view of the author of our lead quote — Law is the very substance of civilization.3 Implicit, in Judge Gests comment about our “long armed and hairy ancestors” is the Hobbsian concept that man, in his natural state, is a vile beast that needs to be restrained by laws. Actually, our western culture, as it has developed, took its cue from quite an opposite notion. While, no doubt, man must be restrained by laws, and, indeed, has been restrained by natural laws since his earliest beginnings: man is not, and could not, have come to be what he is today if he was but a snarling and thoughtless being, who, as a general statement, cannot see beyond his present place and moment in time.
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The Age of Reason:-
The enormous scientific and intellectual advancements made in the 17th century, the Enlightenment, — the Age of Reason — brought about in Western Thought, the age of the scientific man. The thinkers of the age were no longer content to accept the cosmos and its contained life as a mystery to be simply accepted. The time had come for man to test his theories which flooded into his mind; to test these theories with his observations and to reset these theories in accordance with his accumulated observations: and, seemingly without end, to continue to retest and to reset.
“… the closed and authoritarian system of the Middle Ages was replaced by the open and relativistic world of modern times. The closed geography of feudal Europe was pried open, first by the Crusades, then by the discovery of new trade routes, and finally by the world-wide explorations of the great navigators. The flat two-dimensional earth became a spheroid, three-dimensional world. The limited and static spatial theory of Ptolemy gave way to the dynamic heliocentric theory of Copernicus, Galileo, and Newton. Time, as well as space, was broadened. The development of chronology, the recovery of ancient monuments, and speculations about the future expanded the temporal scope of mens views. Economically, the closed and largely self-contained feudal estates were replaced by cities and towns, with the mutual interdependence that comes from the specialization of labor, till the whole medieval scheme of production was made over into the “free” system of commerce and industry.”4
It was Francis Bacon (1561-1626) much impressed by the materialist theories and the resultant discoveries of both Copernicus and Galileo, delineating the principles of the inductive scientific method, who argued that the only knowledge of importance to man was empirically rooted in the natural world. (It is, incidentally, to Bacon we trace the expression, “Knowledge is Power.”) The age had finally arrived whereby it was believed by a clear system of scientific inquiry, a new approach, that man might exercise mastery over the world. It is with such thinkers as did follow Bacon — Voltaire, Rousseau, Montesquieu, Paine, and Jefferson — that this scientific approach was applied to political and social issues; and so arose the liberal, the humanitarian, and the belief in a sense of human progress and the belief that the state could be a rational instrument in bringing peace to the whole of society.5
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Locke:-
Foremost among these new political thinkers was the Englishman, John Locke (1632-1704) who picked up on the beliefs of Bacon: “all knowledge is founded on and ultimately derives itself from sense …” Locke, while insisting on the natural morality of pre-social man (unlike Hobbes who had espoused the view that man was a vile beast), thought it best for an individual to contract out “into civil society by surrendering personal power to the ruler and magistrates”; this, for Locke, was “a method of securing natural morality more efficiently.” Thus, what was stated, was the so-called Social Contract Theory which has been so badly misapplied and overly extended by the political theorists of this century. So, too, it was Locke who wrote, that if the “ruling body offends against natural law; it must be deposed”: this was the philosophical stuff which sanctioned the rebellions of both the American colonialists in 1775, and the people of France in 1789. Incidentally, it is the political, legal and constitutional views of Locke which are at the core of all modern western democracies. All have been modelled after the first of them, the United States of America; Locke views having been carefully drafted into its Constitution of 1787.
As I go about giving an answer (irrefragable, I think) to the popular theories that we might legislate laws and thus resolve our great social problems in one stroke, I shall, in other pages, as are listed in the subject index, make extensive reference to the lives and works of those authors to whom I have referred and to numerous other classical thinkers. But, now, I am obliged to hurry along in this, my introductory note to the subject of law.
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Definition of Law:-
Is it not my design, at this place, to show what stands as law; but, rather my aim is to develop ideas on what law is.6 Law is a “rule of conduct imposed by authority. … The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.” Upon considering this definition (OED), the first question that arises, is: “On whose authority?” Prior to the 18th century it was on the authority of a divinely appointed king; during the 18th and