FIFTH ESSAY

The Nature of Law

"In order to understand perfectly the nature of the law one must observe that all those who have spoken well about it have regarded it, in its origin, as a pact and solemn treaty by which men, by the authority of princes, agree together concerning that which is needful for establishing their society. By this I do not mean to say that the authority of the laws depends upon the consent and agreement of the peoples, but only that the prince (who, in any case, has by his nature no other interest than that of the public) is aided by the wisest heads of the nation and is supported by the experience of past ages."

(Jacques Bossuet, Politics Drawn from the Very Words of Holy Scripture[pub. 1709; written before 1700], ICCW, 877.)

"The law that was to govern Adam was the same that was to govern all his posterity, the law of reason... For law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law... So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom."

(John Locke, Second Treatise of Government [pub. 1690], ICCW, 1026.)

These two passages encapsulate two very different conceptions of law, with correspondingly different implications about the role of law in establishing and governing political society. Imagine that you are a respected seventeenth-century legal philosopher, and two contending parties have come to you requesting your judgment of their respective notions of law, as summarized in the passages above. The party supporting Bossuet argues that the Lockean formula is a recipe for anarchy and social chaos, as it does not prescribe obedience to a higher authority. The Lockeans, however, maintain that their opponents' formula is simply a recipe for unrestrained tyranny.

Decide which side's case seems more reasonable to you, and in an essay of 750 words defend it against the criticisms leveled by its opponents. Explain what assumptions about human nature, about God, and about political leadership underlie the notion of law which you have chosen to defend. This explanation should be based, of course, on a careful reading of the whole text in question.

The essay is due by 3:00 PM Monday, 8 December, in your preceptor's box in the History Department Office, 129 Dickinson Hall.