Wednesday, February 27, 2013 – Essay #8 – Discourses Concerning Government by Algernon Sidney – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

Algernon Sidney, the author of the Discourses, was a man of the 17th century’s Age of Reason. He was skeptical of organized religion though not by that measure doubting of God. He was firmly convinced of the inherent rationality of the human will and the essential equality of all humans as children of God, from which he deduced the ultimate sovereignty of individuals and the basis of the ethical state in the consent of the governed. That made him a foundational figure in the emerging English Whig republicanism, but one about whom history has given a divided verdict.

He was executed in 1683 for plotting to instigate rebellion against Charles II. Many historians believe that the evidence for that particular charge was procured. It is clear, however, that for many years he was supported in his machinations and plotting against the English government by generous support from the French king, Louis XIV.

 The sections of the Discourses presented here have an overtly Biblical tone. Theological arguments were a staple in political disputations for centuries in Christendom. Despite the shattering of Christian unity in the Reformation, the increasingly secularized metaphysics of emerging Modernity, and the gradual fading of an active God as the catalyst for human social organization, old habits of discourse persisted even among the educated elite well into the Age of Enlightenment.

 Sidney was responding at length to Sir Robert Filmer’s posthumously-published defense of royal absolutism, Patriarcha. (Sidney’s reference to “our author” is to Filmer). Filmer, who died in 1653, defended the position typical of early-Modern Era European monarchs that they governed “by divine right.” He based this on the analogy of the king to a father, who is the unquestioned head of the family. Filmer saw the family as the basis of government, and the entire structure as the creation of God, who made Adam the ruler of all his descendants. Adam’s authority passed to Noah and from him to his sons. From them, in turn, all kings obtained their authority to rule, and to do so through unquestioning obedience from the governed.

Filmer’s king-as-absolute-father found support not only in God’s order recounted in the Old Testament, but also in Roman law. There, too, the paterfamilias had unquestioned control, even—at least theoretically—over the life and death of his minor children. As well, Filmer borrowed from Roman constitutional law the principle that, to be sovereign, the ruler must be above the law. Laws cannot exist without a lawmaker. The authority to make law must rest somewhere, in a king, various noblemen, or the people, depending on the system of government. The king cannot be subject to the law, or else whoever is placed above the king is the true lawmaker and sovereign and must then be above the law. This also meant that whatever pleased the king was law, although Filmer pulled his punches by agreeing that a proper law would only be one that benefited the governed. Being above the law only made the king immune from having his actions questioned by earthly judges. Just as everyone, the king was still subject to God’s judgment. Therefore, Filmer rejected the authority of Parliament to try King Charles I, echoing the king’s argument that the “people” were sitting as judges in their own cause, contrary to basic natural rights.

The secular defense of royal absolutism came from Thomas Hobbes, who lived around the same time as Filmer. Unlike the latter’s argument from a divine ordinance that reflected the natural order of things, Hobbes relied on the voluntary assent of the governed. Prodded by the intolerable conditions of a “war of all against all” in a state of nature that rendered life “solitary, poor, nasty, brutish, and short,” men agreed with each other in a social contract to surrender to a sovereign all but their right to life. This “Leviathan”—again the Old Testament reference—could act in any manner needed to provide security. The sovereign was not a party to the contract. If he were, it would mean that he could be hauled before a judge who could enforce a remedy against him for breach. In that case, the latter would be the true Leviathan. As did Filmer, Hobbes argued that the king was morally constrained, however, to further the goals of the social contract among the governed, that is, their personal security.

 Neither Filmer nor Hobbes countenanced a right to revolution or other change to government from disaffected elements of society. Sidney rejected both versions of royal absolutism. For him, there was no historical proof to support Filmer’s claim that current kings descended from Noah’s sons or that God had given rule over the entire world to a particular individual, since God would not expect such a creature of limited capability to rule what he could not possibly know. Nor can one have a father who did not beget him, and therefore one cannot owe a duty of filial obedience to a ruler. Instead, Sidney asserted, we are all heirs and co-heirs with Christ, and we inherit the world equally. From that equality found in the universal law of God and nature, he concluded that all share the liberty of being free from the dominion of others. The ruler governs by consent and through earned respect, not birthright.

 As to Hobbes, Sidney rejected the writer’s claim that the suffocating security of a totalitarian state’s peace (“the peace of death”) was preferable to the alternative, even if that alternative was rebellion. Sidney declared that it is the people (“for whom and by whom the constitutions are made”) who have the absolute sovereignty to judge what is the right government for them. This was a radical sentiment for the time, too radical for Sidney’s contemporary, John Locke, who described a much more conditional and ambiguous right of the people to alter their form of government. For Locke, a government, once constituted under the foundational social contract, had a right to continue unaltered unless it engaged in systematic, continuous, and egregious usurpations.

For interested Americans of the Revolutionary Era, their hearts were with Sidney, but their minds were with the more cautious Locke. The Declaration of Independence was a carefully crafted indictment of the king’s constitutional transgressions that provided a Lockean justification for revolution. For Sidney, that indictment, and the extended series of petitions and remonstrances that preceded it would have been unnecessary to justify the break. However, within a decade, American constitutional theory fully embraced Sidney’s views, as reflected in Alexander Hamilton’s feigned disgust in Federalist 78 that the opponents of the Constitution supposedly questioned “that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution whenever they find it inconsistent with their happiness.”

Read Discourse Concerning Government by  Algernon Sidney here: http://www.constitutingamerica.org/blog/?p=3327

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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One Response to “Wednesday, February 27, 2013 – Essay #8 – Discourses Concerning Government by Algernon Sidney – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Dave says:

    The words may change, but the same ideas keep coming back. Call it Royal Charter or the divine right of kings; it is the same thing as our de facto charter of the administrative, or bureaucratic, state. It is the consolidation of power, power over the people and their property, with all the self-interested justifications. The Royal Sovereign says to the masses, “It’s for your own good, and it has the Divine Imprimatur.” The modern-day administrative sovereign taking on a form not unlike the mythical hydra says, “It’s for your own good, and it has the stamp of the experts, the elites, your betters.”

    It may be some kind of confirmation bias but I just keep seeing the same things repeating themselves in history. I think there are discoverable first principles concerning the attainment of the ends of government. I’m assuming, of course, at some point we can agree on the ends of government. I like Sidney’s formulation—“If the public safety be provided, liberty and propriety [property] secured, justice administered, virtue encouraged, vice suppressed, and the true interest of the nation advanced, the ends of government are accomplished . . . [.]” and he defends these ends against those in authority by adding that “since the magistracy is not instituted, nor any person placed in it for the increase of his majesty, but for the preservation of the whole people, AND THE DEFENSE OF THE LIBERTY, LIFE AND ESTATE OF EVERY PRIVATE MAN . . . .” [Emphasis added]

    Thank you, Professor Knipprath, for sharing your understanding of Algernon Sidney’s Discourses Concerning Government and putting the work in an historical context.

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