Now, the Renaissance humanists and the Enlightenment thinkers
did believe in the inherent equality of all human beings and as Sunstone explains, their movement was rather egalitarian and grassroots as opposed to elitist, just like modern secular humanism. They didn't derive this from studying the classics, nor was it a natural consequence of the dictates of rational thought, given that hundreds of years later supposedly more advanced intellectuals of the 19th and early 20th centuries parted ways with them in this respect and re-introduced a biologically based social elitism guided by eugenics.
In fact, the majority of contemporary scholars trace the origin of ‘modern’ individual rights to the medieval Christian Church, arguing that between the twelfth and thirteenth centuries, canonists and decretalists “
worked out a series of definitions of ius naturale as subjective right"
[3] that were subsequently embellished by theorists as diverse as the Franciscan nominalist Ockham and Bartolome de las Casa, an early advocate for the rights of indigenous people, to serve as fuel for subsequent generations.
Decretal X.1.2.6, a famous canonistic text by Pope Innocent III, is a case in point. The pope ruled in this text that the minority faction in an ecclesiastical corporation were not liable to be deprived of their individual rights as a result of a majority vote. A gloss interpreted this as implying that a majority vote could trump individual rights only in specific situations and otherwise unanimity of consent was required. Ockham utilized this as substantive proof for his argument that imperial power should be limited and could not aspire to
plena potestas (plenitude of power), interpreting it as a proof-text for limited government:
“the people cannot confer absolute power on an emperor…because the people itself does not possess such a power over its own individual members”.
[4]
This same decretal was seized upon by Bartolome de las Casas to buttress his defence of the native Indians then enslaved by the Spanish Empire, whereupon he contended that “the consent of a whole people or city could not prejudice the right of a single person withholding consent”
[5] such that were a majority to freely subject themselves to a foreign monarch’s imperium, their decision had no power to prejudice a dissident minority. This impelled him towards the conclusion that:
“all, both great and small, the whole people and individual persons, are to be summoned and their consent sought and obtained”.
[6]
Las Casas argued that the consent
omnes et singuli (by each individual person) was a requisite for Spanish sovereignty over the Indians to be legitimate, since otherwise “
it would detract from the right of each one if they all lost sweet liberty”.
[7] The fact that such an individualized idea of consent was advanced by a pre-Lockean Catholic philosopher wholly indebted to medieval theology, whom Reid opines delivered a stronger argument on behalf of natural human rights than the “pen of John Locke”,
[8] is clearly significant because it illustrates where Locke and other enlightenment intellectuals got these ideas from in the first place: medieval Christianity.
The sixteenth-century Anglican ecclesiastic Richard Hooker, whom Locke copiously references in the footnotes of his
Second Treatise, drew himself extensively on medieval Thomistic interpretations of natural law.
[1] Hooker concurs substantially with Aquinas and Giles that, in his own words, “natural bindeth universally, that which is positive not so”,
[2] arguing in lieu of the medieval tradition before him that positive law need not be obeyed where it is seen to conflict with natural law. In his
Second Treatise Locke frames his argument on behalf of limited government in this same language of natural law, stating:
“For so truly are a great part of the municipal laws of countries, which are only so far right, as they are founded on the law of nature.”[3]
He proceeds to reference with approval a maxim from the “judicious Hooker” (as he calls him) that “the Laws of Nature, do bind Men”,
[4] elsewhere citing Hooker once more in defence of the idea that there is no binding conscientious obligation to obey unjust positive legislation should it diverge from divine law: “Laws […] we must obey, unless there be reason shewed which may necessarily enforce that the law of reason, or of God, doth enjoin the contrary,
Hook.Eccl.Pol.l.i.sect.16”. The pre-eminent authority of ‘law’ over ‘legislation’, derived originally from the medieval Christian distinction between the pre-ordained natural law discoverable by reason and the socially constructed positive law of monarchs, is still a staple feature in the epistemologies of modern liberal constitutionalists as Thomas explains:
“Liberal constitutionalis[m]… ground law in some normative, non-purposive basis. Law is viewed as necessarily prior to both government and legislation and as a means of preventing government from overstepping its proper limits”.
[1]
It is scarcely a surprise, therefore, that the political theory of the neoliberal ideologue Friedrich Hayek held to the notion of the ‘rule of law’ as a “pre-existing body of law representing the will of the whole community”,[2] one “higher than the will of the current government and that limits the scope of that government’s acts”,
[3] such that, “law came before legislation”.
[4]
This also serves to demonstrate that medieval notions of limitation on the nature and exercise of political power are inherently related to contestations within the domain of ecclesiology (church governance), which as a result should be understood as a key source for modern constitutional theory. In this respect the early-twentieth century historian Neville Figgis contended that the 15th century ‘conciliar theory’ of the Catholic Church represented “
the culmination of medieval constitutionalism”
[9] and in a broader sense “
forms the watershed between the medieval and modern world”.
[10] It thus seems fair to agree with the contention of Rosenthal:
“Too much of our understanding of intellectual history remains trapped in a simple duality between medieval and modern political thought”.[11]