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Quotations about Liberty and Power

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Plucknett has a key insight into the nature of the modern legislative state which he believed emerged during the Renaissance under the influence of Machiavelli, namely that instead of being the enforcer of a divine or natural law to which he himself was subject, the sovereign was now the creator of the law which applied only to his subjects and not to himself. In very strong and colorful language, Plucknett calls the Renaissance State “a sort of anti-Christ” who is waging war against the very idea of the rule of law by seeking to set himself up as an “amoral and irresponsible” entity outside the law. He sees the medieval tradition of thinking about law as universal justice being taken up by 17th century jurists and political philosophers in England and the American colonies with their ideas of “due process” and a political contract between the ruler and his people articulated by means of a written constitution or charter. John Locke’s theory of a contract between the people and a state with very limited powers is seen by Plucknett as the culmination of this reaction against the Renaissance state’s claims to power.

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1 October, 2012

Theodore_Plucknett196

Plucknett on the Renaissance state’s “war against the idea of law” (1956)

Read the full quote in context here.

The English legal historian Theodore Plucknett (1897-1965) argues that a new concept of law emerged during the Renaissance, replacing the medieval notion of a king both enforcing and subject to divine or natural law, with that of “the modern State based upon force and independent of morality”:

When we come to Machiavelli we reach the spirit of the Renaissance, and begin to find law itself questioned, for his distinction between public and private morality is essentially the same heresy as to divide the substance of the Godhead; a double standard introduces a sort of polytheism utterly repugnant to mediaeval thought. And true enough, there soon came the State, as a sort of anti-Christ, to wage war with the idea of law. The issue of this conflict is perhaps still uncertain, but mediaeval thought is to-day fighting hard for the cause of law against the amoral, irresponsible State….It was Machiavelli himself who gave us the word “state” and filled it with the content which we now associate with it. Instead of the mediaeval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality.

The full passage from which this quotation was taken can be be viewed below (front page quote in bold):

Religion had an important rôle in this development and contributed the valuable conception of Jehovah as a law-giver and law-enforcer—a conception derived from Judaism. Out of all the confusion and disaster of the middle ages there arose the unanimous cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. Of the many intellectual systems devised in the middle ages, there was one which proved to be a practical as well as an intellectual answer to some of the most urgent of life’s problems, and that was law, law which was directly based upon the divine attribute of justice.

It might have been that the idea of law was no more than a despairing refuge in an impossible Utopia, devised by minds frightened by the evils around them. But Utopias belong to modern history; the mediaeval man was above all a man of action, and out of the night of the dark ages he began to build the fabric of law. To him the rule of law was not only a worthy achievement of the spirit, but also a great active crusade, and the greatest of all the crusades, because it alone survived its defeats.

THE RENAISSANCE AND THE STATE

Such is the subject matter of legal history in the middle ages where we can follow the rise and progress of law and the rule of law. When we come to Machiavelli we reach the spirit of the Renaissance, and begin to find law itself questioned, for his distinction between public and private morality is essentially the same heresy as to divide the substance of the Godhead; a double standard introduces a sort of polytheism utterly repugnant to mediaeval thought. And true enough, there soon came the State, as a sort of anti-Christ, to wage war with the idea of law. The issue of this conflict is perhaps still uncertain, but mediaeval thought is to-day fighting hard for the cause of law against the amoral, irresponsible State. It was mediaevalists in England, armed with Bracton and the Year Books, who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke upon Littleton before their eyes. Could anything be more mediaeval than the idea of due process, or the insertion in an instrument of government of a contract clause? Pacta sunt servanda [pacts should be kept], it seems to say, with the real mediaeval accent. It was Machiavelli himself who gave us the word “state” and filled it with the content which we now associate with it. Instead of the mediaeval dominion based upon divine right and subject to law, we have the modern State based upon force and independent of morality. And so, where many a mediaeval thinker would ultimately identify law with the will of God, in modern times it will be regarded as the will of the State.

[More works by Theodore Frank Thomas Plucknett (1897 – 1965) and on Law]