Greece, Rome, and the Bill of Rights

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Authors: Susan Ford Wiltshire
Tags: General, History, Reference, Political Science, Law, test, Civil Rights
institutions, strongly rooted in antiquity even while undergoing change in response to circumstances. 31
Magna Carta does not represent in any sense a democratic revolution. The constituted tribunals were tribunals of one's peers, that is, others of like status. It was unthinkable that one would be judged by anyone of lower status. The great breakthrough, however, was that individual rights were confirmed by a written document rather than imagined as a theory or conceded as a gift by one individual to another.
The impact of feudalism and English common law on human liberty was expressed succinctly in a special medal struck for Edward III's coronation in 1327, signalling a return of the ascending theme of government. The motto on the medal reads Voluntas populi dat jura , "The will of the people gives the laws."
Early English Theories of Rights
An important transitional figure in the late medieval period in England is William of Ockham (or Occam) (c. 12901349). Ockham saw the natural moral law as the positive law of divine will. He broke with Aquinas by positing that everything God does is done because God wills it, not because it is somehow suitable to the nature of human beings. Thus Ockham saw no universals, only individual particulars. By asserting that universals are only names ( nomina ) for similarities among existing thingsrather than, as Aquinas insisted, their real essencesOckham with his nominalism paved the way for a more radical individualism. 32 In many universities he came to represent the modem way, via moderna , as opposed to the via antiqua of Aquinas. Michel Villey holds that Ockham provides in his Opus nonaginta dierum the first systematic account of subjective rights. 33
Ockham advanced individualism also by his emphasis on natural law in his political writings. 34 As one provision of natural law, he states that rulers should be elected by

     

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consentwhich may be the first time in political thought that governmental legitimacy was determined by consent based on natural law.
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Given the subsequent role of private property in arguments about rights, it is significant that the context of Ockham's political writings was the controversy between the papacy and the Franciscans over apostolic poverty. The Franciscans argued that they should not own property but only exercise the use of it for their immediate needs. Ockham's Opus nonaginta dierum was written in direct refutation of a papal bull issued in 1329 by Pope John XXII entitled Quia vir reprobus . In that document the pope attacked the Franciscan position by arguing that God possesses lordship (dominium) over the earth just as individuals do over their possessions. Thus, property is natural to human beings and is sustained by divine law. One scholar takes the view that it was the reaction to Ockham, rather than Ockham's own work, that led to a radical natural rights theory. If God has property in the world, such a view holds, then human beings can, too, and in this one way resemble their maker. This basic fact about human beings can thus lead fairly directly to an individualistic political theory not far removed from the classic theories of rights of the seventeenth century. 36
Ockham's younger contemporary, John Wyclif (13201384), has been credited with advancing the theme of the individual as a fully fledged, autonomous, independent member of society who had inherent, inborn rights. What made Wyclif especially important was his resistance to the corporational or collectivist point of view and his appreciation of subjective judgments, the same values that led him to translate the Bible into the vernacular. For Wyclif, the validity of law and public actions depended on the "moral worth" of the body or person creating the law. 37
The evolution of individual liberty in feudal England, together with events originating in the late Middle Ages on the Continent, would combine to create entirely new ways of thinking about human autonomy and

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