● Law is “ reason free from all pasion”
● Property is just mere instruments or possessions
● Justice is equality, but only for equals; and justice is inequality, but only for those who
● The worst form of inequality is to try to make unequal things equal.
● (on Inequality) ... For he is a slave by nature who is capable of belonging to another —
which is also why he belongs to another — and who participates in reason only to the
extent of perceiving it, but does not havt.
● (Not necessarily important) The case of the Hero is slightly more illuminating with
respect to Aristotle’s notion of varying degrees of prudence. Still, the caricature again
places such an individual outside normal political life. The Hero is so distinguished on
account of virtue that citizenship (understood as the appropriate participation in ruling) is
moot with respect to the other people of the city.Aristotle explains the possibility:
● “If there is one person so outstanding by his excess of virtue — or a number of persons,
though not enough to provide a full complement for the city — that the virtue of all the
others and their political capacity is not commensurable with their own (if there are a
number) or his alone (if there is one), such persons can no longer be regarded as part of
the city. For they will be done an injustice if it is claimed they merit equal things in spite
of being so unequal in virtue and political capacity; for such a person would likely be like
a god among human beings. ”
● Property- Possessions, thoughts, knowledge, justice, and happiness
● Roman law was an engagement resting restraints on popular will
● Acceptance of natural law being “higher” either by reason or will of god
Henry of Bracton
● Government and Law
● The King was absolutely in government but limited to government.
● In law you have both a constitution and the oath that bound the King.
● “the King should be under no man, but under god and the law, for the law makes him
● Custom, reason, word of god ● Descartes discourse on method (1637)- start with premises and use reason to make a
Political Theory Vs Natural Law
● Social Contract and state of nature which exists apart from the contract
Locke, Coke, Milton, Sydney, Harrington, Montesquieu, Hume, Blackstone, Delolme
Bodin, Hobbes, Rousseau, Priestley, Richard Rice
England Court decisions made supremacy of government over law depend on the kings
Grotius and Samuel Pufendorf
● Pactum Unions which formed a people, Pactum subjection - which people put themselves
under government, while stressing moral restraints on the rulers, they failed to emphasize
the peoples rights to resistance.
Sir Edward Coke
● thought common law was “ the perfection of reason”
● 1608 James I told all his judges that since they acted as his surrogates he could at will
remove cases from their jurisdiction.
So Sir edward coke responded that cases had to be judged by the law of England.
James replied that since the law rested on reason, he had as much of that quality as the
Coke said that the law was not simple and his majesty not learned in it should leave legal
matters to his judges and lawyers.
“This means,” declared an outraged James, “That I shall be under the law, which is
treason to affirm.”
Coke then quoted Bracton “The king should not be under man, but under God and law,”
this sent the absolutist monarch into a fit.
● Coke also declared parliament to be similarly bound “the common law will control acts of parliament, and sometimes adjudge them to be utterly void; for when an act of
Parliament is against common right and reason or repugnant, or impossible to perform,
the common law will control it, and adjudge such an act to be void.”
(this case is one of the origins of judicial review, and its shows that the court has the
power to invalidate the legislation)
● He thought English law was a constitution protecting the liberty of the subjects and
stressed existence of a fundamental law neither crown nor parliament could alter.
● Dividing legislative and executive function lest tyranny ensue.
● Born in fear amongst civil war in his country
● Man's state in nature is war against all
● people should give up all their rights for security ( not used in the convention)
(Hobbes)THE STATUS OF EQUALITY
● Inequality does not exist in the natural condition. Any inequality that exists is the
result of civil laws, not natural ones.
● We MUST recognize each other as equal by nature? Why? "If Nature therefore
have made men equal, that equality is to be acknowledged: or if Nature have made
men unequal; yet because men that think themselves equal will not enter into
conditions of Peace, but upon Equal terms, such equality must be admitted. And
therefore for the ninth law of Nature, I put this, that every man acknowledge others
for his Equal by Nature. The breach of this Precept is Pride."
● 10th law: Do not reserve any right for yourself that you would not allow to others.
● Those who break this law are arrogant - (vainglorious)
● 11th law: Judges must deal Equally between all people. This is equity.
● 12th law: Things capable of division are enjoyed in common; otherwise,
proportional to right.
● In society, those who are acknowledged to be "great" are more to be condemned for
transgressions than the ordinary person, since the "great" have "least need t