USQ Law Society Law Review
Katie Lush
Winter 2021
conscience bearing witness.(Romans 2;14-15)’8 As Christianity became the dominant political force during the first millennium, the idea of the natural law being God’s law took a strong hold. Hence religion, and thus morality, and law were firmly connected. During the Middle Ages, Thomas Aquinas developed the natural law theory further through rational argument.9 He understood that humans are fallible and therefore human law was subject to error and contradiction. Natural or Divine Law however came from an infallible source and was thus always reliable.10 The Enlightenment brought new clarity as well as greater discourse and opposition to natural law theories. John Locke in writing his Second Treatise made a number of important contributions to Natural Law theory. In particular, he began to articulate the idea of rights. In his preface he described the peoples ‘love of their just and natural rights.’11 He goes on to discuss the right to make laws, the right of punishing a wrong doer, the ‘right to destroy that which threatens me with destruction’, the right to liberty, the right to property and, importantly for democratic government, the right of resistance to an unjust sovereign.12 Locke proposed how these basic rights of natural law become part of a system of government as society becomes more complex.13 Locke’s ideas of morality were part of the shift towards seeing natural law as ‘providing the solution to the problem of how rational beings, constituted as we are, can live together’ rather than ‘with showing individuals how they are to attain their own perfection or highest good’.14 The age of enlightenment and this shift in thinking, had an effect on English common law, since the nature of common law is to develop over long periods of time, as ancient social customs begin to be a ‘systematically recorded body of law’.15 A vast amount of these social customs derive from the dominance of Christianity in both politics and society. Those in positions of authority were predominately clergy, so it is reasonable to assert that judgements would tend to follow theological lines of thinking.16 However political events, such as the signing of the Magna Carta, also strongly affected the customs which formed the common law. This is evidenced by two of the most fundamental ‘principles of common law [which] concern (1) natural freedom and (2) that the state must not violate this freedom except as authorised by law’.17
II
NATURAL RIGHTS AND THE CONSTITUTIONAL MOVEMENT
Locke’s Two Treatises on Government were written in the years immediately prior to the Glorious Revolution of 1688, an event which resulted in a strong Declaration of Rights being 8
Ibid 161. Ibid 163. 10 Thomas Aquinas , The Summa Theologica of Saint Vol ii Part 1 Q. 91 art. 4: The Great Books (The University of Chicago, 1952). 11 John Locke , Second Treatise of Government (The Project Gutenberg EBook, 2010) preface 12 Ibid ss 3,8,16,22,39, 45, 149. 13 Ratnapala, above n 3, 181. 14 J.B. Schneewind, Locke’s Moral Philosophy: The Cambridge Companion to Locke (Cambridge University Press, 1995) 209. 15 Ratnapala above n 3, 183. 16 Ibid 184. 17 Ibid 185. 9
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