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or fundamental law ratified by the people or their popularly elected representatives. Ordinary laws or statutes are enacted by legislatures chosen by the people. In the United States and other countries under a Presidential system of government the laws are enforced by an executive elected by and responsible to its citizens. Countries with a Parliamentary system have executives chosen by and responsible to popularly elected legislatures. In either instance it is the people who in the final analysis control the reins of government.
The U.S. Constitution contains a Bill of Rights guaranteeing the rights of individuals. All of these safeguards are in the interest of the individual. Nevertheless, there is wide divergence of opinion as to the extent that government, within its constitutional limitations, should curtail the liberties of individuals in the interest of all the people or society as a whole.
ordinances requiring a license to preach the Gospel on street corners, although such preaching may prove inconvenient to the police.
In 1919 the Supreme Court, in the Schenck case, upheld the conviction of a person who had attempted, by speeches and pamphlets, to obstruct the recruitment of men for the Armed Forces of the United States during the First World War. The unanimous opinion of the Court, read by Justice Holmes, an outstanding defender of free speech, employed a new yardstick for measuring the limitations on this freedom. In each case, the test must be “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger." This was the origin of the well-known “clear and present danger" doctrine that has been generally followed by the Supreme Court.
One of the outstanding differences between Communist regimes and democratic governments is their attitude toward the problem of liberty and authority. In democracies the problem is approached with the intention of finding a reasonable compromise between complete individual liberty and the claims of society or the general welfare. Under communism the problem is simply brushed aside. For example, the Soviet Constitution includes a detailed Bill of Rights which is not respected in practice. The liberty of citizens is not honored. All persons must be subordinated to the Communist Revolution, under the sole guidance of the dictatorship of the Communist Party.
Problem of Liberty and Authority
Where is the dividing line between the liberty of the citizen and the supreme authority of the state? This conflict is one of the oldest problems of mankind. It appears again and again throughout the history of civilization, from the Greek citystates to the U.S. Republic. The problem emerges in every age with new and complicated aspects. In some areas of modern life, the boundary line is easily defined. Free speech permits a person freely to express his opinion about anyone or anything. But this freedom cannot be permitted to extend to the utterance of malicious and false statements that seriously injure innocent persons. To safeguard the rights of all citizens, American as well as British law has for centuries provided a remedy and damages for injured citizens in the courts by means of libel suits. Again, in the United States and Great Britain, censorship of newspapers is strictly avoided. But in time of war, when the publication of news regarding the movement of troops would aid the enemy, a mild form of censorship has been adopted in both countries, and it has been completely abandoned at the end of the
Civil Rights of Subversives
Communist Party members are pledged to a world conspiracy to destroy constitutional government in all countries, the result of which would be the destruction of the civil liberties of all citizens. Is a governnient dedicated to liberty compelled to allow such unrestrained freedom as to permit its own destruction by violence? The only reasonable answer is: No.
This problem was presented in an appeal to the to the U.S. Supreme Court by eleven leaders of the American Communist Party who had been convicted of conspiring “to teach and advocate" the overthrow of the U.S. Government by violence. Chief Justice Vinson, speaking also for Justices Reed, Burton, and Minton, pointed out that a constitutional government has the right to protect itself against attempts to overthrow it by
In other areas of freedom of speech, it has been more difficult to draw the boundary line. It is obviously illegal, as Justice Holmes said in the Schenck case, maliciously to cry “Fire!" in a crowded theater. On the other hand, the United States Supreme Court has sternly struck down city
violence. In upholding acts of Congress to safeguard the government as justified limitations of freedom of speech, he added, “Obviously the words [clear and present danger) cannot mean that before the Government may act, it must wait until the putsch [revolt] is about to be executed, the plans have been laid and the signal is awaited. If the Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required."
Nevertheless, when prosecuted in U.S. courts, Communists and their lawyers invoke all the civil rights guaranteed to all persons, whether citizens or not, in the Bill of Rights of the Constitution. Invariably, the courts have recognized these rights and have accorded Communists all the guarantees under the same Constitution they are pledged to destroy. In the case of the eleven Communist leaders mentioned above, the trial judge went to extreme limits to safeguard their constitutional rights. Patiently, Judge Harold Medina allowed the Communists and their lawyers to attack the American judicial system and even to heap insults on himself. As a result of these extraordinary tactics, the trial consumed ten months—the longest criminal trial in American history. The convicted Communists appealed their case to higher courts, and were allowed their freedom on bail. The convictions were upheld by the U.S. Supreme Court. But, in the meantime, four of the Communists skipped bail and disappeared.
Equality Under the Law For centuries the relation of liberty and equality has been a moot topic of political philosophy. Some reformers have insisted that democracy calls for complete equality of all men as well as for liberty. They have insisted on a "leveling” proc
Yet equality in all things is often inconsistent with complete liberty. For instance, liberty usually insists on the right to acquire property, and some men have little desire for property. The American Declaration of Independence declared that "all men are created equal." But it is clear that Thomas Jefferson did not mean that all men are born with equal capacities. Some men, by their nature, are physically strong, and others weak. Some have greater intelligence than their fellow citizens.
In the writings of Plato and Aristotle, equality meant the equal rights of all citizens of the Greek city-states to the protection of the law and to participate in government. This was also the assumption of Locke, Montesquieu, Rousseau, and Kant. In England, as early as the seventeenth century, equality of civic rights under law had already appeared in common law in the form of guarantees of due process of law or procedures in court conforming to the "law of the land.” Equality of rights under the law was the meaning of the American Declaration of Independence (1776). It was also emphasized as a leading principle of the French Declaration of the Rights of Man and Citizen (1789), and became one of the permanent achievements of the French Revolution. It was a feature of the Bill of Rights (the first ten Amendments) of the U.S. Constitution, adopted in 1791. And it was conspicuously emphasized in the Fourteenth Amendment (1868), which reads in part:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any persons within its jurisdiction the equal protection of the laws.
Similar guarantees are found in the constitutions of all democratic nations. For instance, Article 3 of the Basic Law (Bonn Constitution, 1949) for the Federal Republic of Germany declares: "All men shall be equal before the law. Men and women shall have equal rights. No one may be prejudiced or privileged because of his sex, descent, race, language, homeland and origin, faith or his religious and political opinions." These constitutions carry out the old American proverb: “Equal rights for all, special privileges for none."
Equality under law also came to include the Greek concept of the right of all adult male citizens to participate in government, including the right to vote and to run for office. The Fifteenth Amendment (1870) of the U.S. Constitution sought to guarantee the right of Negro men to vote. The Nineteenth Amendment (1920) removed the restriction on all women as voters.
The History of Liberty The analysis of the nature of liberty in the pre- Thucydides. One underlying reason, according coding chapter has been largely limited to the to Pericles, was the need for the protection of the concept of liberty in the modern age. The subject citizens of the city-state from external enemies, of liberty as a vital force in civilization will be and another reason was the need to permit every brought into sharper focus by a brief survey of citizen to realize or achieve the virtue that was the history of the idea through some of the sig- the ideal of Greek morality. While this was far nificant stages of recorded history.
from the individualism of modern times, it was
at least the beginning. Liberty in Ancient Greece
Within a century, Greek self-sufficiency was to
develop almost to the point of egoism, or the docThe ancient Greeks were devoted to liberty. trine that individual self-interest is the valid purBut Greek liberty existed only for the citizens or pose of all human action. Plato combated this freemen of the Greek city-states, not for barbar- doctrine in his Republic by the invention of the ians and slaves. Despite all the greatness of contract theory which nearly 2,000 years later had Greek civilization in the Golden Age, there were deep significance in the development of modern several political ideas that contrast sharply with liberty. By nature, according to Plato, men want modern concepts of liberty. One defect of Greek to do injustice and not to suffer it themselves. But politics, in the modern sense, was the deep dis- this situation proving intolerable, men made a dain of all Greeks for foreigners, barbarians as contract neither to inflict nor to suffer injustice. the Greeks called them. Barbarians were con- Thus, by submission to law the liberty of the indisidered wholly unequal to the citizens of the city- vidual was promoted. states. In the Greek world, they were worthy only The most extreme Greek individualism blosof the position of helots or slaves. Another im- somed in the philosophy of Epicurus, based perfection, from the modern view, was the insti- largely on materialism, or the doctrine that the tution of slavery. Slavery was justified as facts of the universe are explained by the existrational by both Plato and Aristotle and as a ence and nature of matter. Thus, according to necessary element in social organization.
Epicurus: “There is no such thing as human These imperfections (from the modern view- society. Every man is concerned for himself.” point) were characteristic of the Greek age in Obviously, Epicurean philosophy, which identiworld history. Some Greek ideas were, however, fied morality with expediency, was in sharp conan advance over preceding ages, and over the trast to the ethics of Plato and Aristotle. contemporaneous despotism of Persia. For in
In his Politics, Aristotle gave the classical view stance, there was an element of enlightenment in of the difficult question of authority versus librefraining from putting all conquered peoples to erty, holding that liberty was not incompatible the sword and in saving some of them to serve with submission to law. Aristotle, like most as slaves. But as for the Greeks, only the free Greeks, detested anarchy. The objection of both citizens of the city-state deserved the blessings of Plato and Aristotle to democracy as well as their liberty for which the heroes of Marathon and preference for mixed government was due to the Thermopylae bled and died.
tendency of Greek democracy to degenerate into The origin of Greek liberty was well explained mobocracy, resulting eventually in the rise of a in the funeral oration of Pericles as reported by dictator (the Greeks called him a tyrant) to re
store law, order, and justice. To the Greeks, the purpose of government was to render justice to all men and women. In Greek thinking, this meant submission to law. In his Republic, Plato made justice dependent, not on law, but rather on education. Aristotle's criticism of Plato's neglect of law led Plato, in his last great political treatise, The Laws, to admit the necessity for law. Both of these philosophers then agreed that liberty of all individuals is preserved by submission to law. For several centuries this view was the prevailing opinion in the Greek world.
servants of the law in order that we may be free.' This noble precept of liberty under law continued throughout the period of Roman law, even during the centuries when the personal power of the Emperor was supreme. Stoicism contributed also to the Roman practice of allowing peoples conquered by Rome to retain their own laws and customsa remarkable advance in the progress of liberty. It also contributed to the decree of Caracalla (212 A.D.) conferring Roman citizenship upon all free persons within the Roman Empire. Finally, Stoicism contributed to the many imperial decrees mitigating the condition of slaves and providing for their manumission. All of these elements made Roman law a great instrument of moral progress.
Roman Law and Liberty
Judaism and Christianity
The Romans have the distinction of developing one of the most perfect systems of jurisprudence in the history of civilization. Like all systems, whether of law or philosophy, it contained many inconsistencies and contradictions. But, in the form of the Justinian Code (534 A.D.), it won the admiration of all nations acquainted with its content. Perhaps no institution, other than the church, has had a more profound effect on the course of civilization.
Much of the urbanity, as well as moral excellence, of Roman law came from Greek Stoicism. In Stoicism a concept of natural law emerged which had never been clearly formulated by either Plato or Aristotle. To the Stoics, the Law of Nature was a body of supreme universal wisdom. Justice was the keynote in this system. Natural law, as a form of universal reason, was understood to be fixed and immutable.
After the Roman conquest of Greece in 146 B.C., Greek scholars were brought to Rome where their teaching profoundly influenced the development of Roman law and administration. Greek thought contributed to the celebrated saying of the great Roman jurist Ulpian, who declared:
Justice is a fixed and abiding disposition to give to every man his right. The precepts of the law are as follows: to live honorably, to injure no one, to give every man his own. Jurisprudence is a knowledge of things human and divine, the science of the just and the unjust.
From Greek philosophy also came the concept of the supremacy of law as the prerequisite of liberty. The idea was expressed in the oft-quoted phrase of the Roman statesman Cicero: “We are
Western civilization is rooted in the JudaeoChristian religious tradition. Cardinal aspects of Judaism are the universality of God, the reign of law, and respect for the freedom and dignity of the individual.
Moses, the lawgiver of Israel, died about 1200 B.C., many centuries before the Golden Age in Greece. The laws given to Moses are the ethical foundations on which all democracies since the decline of Rome have rested. Most of the "Thou shalt nots" of the Ten Commandments are also the "Thou shalt nots” of present-day democratic governments.
Throughout the Old Testament are found commands and injunctions that safeguard the liberties of the people, and denunciations of those who defy the will of God by tyranny and oppression. “Proclaim liberty throughout all the land unto all the inhabitants thereof” is commanded in Leviticus (25.10). It is inscribed on our Liberty Bell. Leviticus also enjoins equality before the law for all people, citizen and foreigner alike, by “Ye shall have one manner of law, as well for the stranger, as for one of your own country" (24.22); and tolerance is affirmed with "Ye shall not therefore oppress one another” (25.17).
The Judaic concept of God was destined to be succeeded by a more universal idea of Christian Divine Providence.
Religious individualism did not originate in Christianity. But Christianity contributed much to its development. In Christianity, God's concern for the individual is more fully developed
gated by him who has the care of a community.” Moreover, there are, according to St. Thomas, four classes of law. (1) Eternal Law is the controlling plan of the universe existing in the mind of God. (2) Natural Law is the participation of man, as a rational creature, in the eternal law. (3) Human Law is the application, by human reason, of the precepts of natural law to worldly affairs, in other words, the command of the prince or ruler as well as popular custom. (4) Divine Law is a gift of God's grace or revelation from God to man.
The modern idea of liberty had not yet emerged in political thought. St. Thomas did not go far beyond the Roman jurists. Like the jurists, he defined justice as the perpetual will to give every man his own rights. Human law, the will of the ruler together with custom, is the immediate source of rights and justice. But if human law deviates from natural rights and natural justice it loses its binding force on men.
than in Judaism. Jesus, in the Gospels, constantly emphasized the direct relation of the individual to God, and the infinite worth of the human personality.
The teachings of Jesus, embodied in the Golden Rule, provided an additional foundation stone in the practical working of self-disciplines necessary to liberty under law.
The concept of democratic equality has little support in science either for the individual or for nations. The Greek Stoics based their doctrine of equality on the Law of Nature, and the Cynics on that of individualism and cosmopolitanism. These doctrines are not sufficient. A deeper, more solid doctrine of equality is required.
In their book, Western Political Heritage, Professors William Y. Elliott and Neil A. McDonald point out that this needed doctrine "came from the Christian concept of the brotherhood of man, the community in Christ, in which all shared a kinship with the divine—so far as men might by obedience to God's will claim their heritage as children of God. Man's universal possession of an immortal and perfectible soul lent a new reach to the claims of democracy."
St. Paul in his Epistle to the Galatians proclaimed the brotherhood of men and the equality of all peoples with “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus” (3.28).
Although suffering several centuries of persecution, Christianity became the leading religion in the Roman Empire after the conversion, in 323 A.D., of Emperor Constantine the Great. Thereafter the influence of Christian ethics can be traced in all legislation not only of the Roman Empire and the Germanic Empire (300–1806 A.D.) but also of national states, like France, England, and Spain, that began to emerge in the fourteenth century. It also was a cornerstone of modern international law, founded by Hugo Grotius in the seventeenth century. This law of nations became the legal basis of free, independent nations.
In his Summa Theologica, St. Thomas Aquinas (1225–1274), a Dominican monk, attempted to reconcile Christian doctrine with Aristotelian philosophy. St. Thomas' theory of law and justice reflected the ideas of Aristotle, the Stoics, Cicero, and the Roman jurists. Law, he defined as “an ordinance of reason for the common good, promul
The rise of the national states, like Spain, France, Prussia, and England, in the opening years of the modern age, was accompanied by the development of a new absolutism that completely submerged individual liberty. Charles V in Spain and the Netherlands, Louis XIV in France, and Frederick the Great in Prussia were examples of absolute monarchs. Supreme power was vested in a single individual unchecked by law. The right to a hereditary throne was bolstered with the theory of the divine right of kings.
It cannot be proved that Louis XIV ever said, as was attributed to him: “The state, I am the state.” But the expression accurately portrayed French absolutism. The States General (the national legislature) had been discontinued in 1614 shortly after the assassination of Henry IV. In Spain, the Cortes had been abolished as early as 1538. Only in England was there a continuous existence of the national Parliament. But, even so, the struggle between the English Parliament and the King supported by his royal prerogative was only partly resolved under Oliver Cromwell in 1649, when the British House of Commons ordered the trial of Charles I, resulting in the execution of the King. It was not until the Revolution of 1688 and the adoption of the Bill of Rights (1689) that the power of the British Crown was finally checked. Thereafter, England became a model for Euro