¹ On the meaning of participation as the term is used in the preceding paragraphs see Plato, , Sophist, 248Google Scholar; Phaedo 100; Parmenides, 129; Symposium, 208. See, also, Aristotle, Metaphysics 993b20; 1070a4, 1072b20; Nicomachean Ethics 1178a26, and the indispensable theory of consciousness developed out of these texts by Voegelin, Eric in “Was ist Politische Realitaet?” Part III of Anamnesis: Zur Theorie der Geschichte und Politik (Munich, 1966), passim but esp. pp. 304, 306f.Google Scholar Also Sandoz, Ellis, “Eric Voegelin and the Nature of Philosophy,” Modern Age, XIII (Spring, 1969), 152–168Google Scholar.

² John R. Rodman remarks: “A little reflection on the text of the Principles of Political Obligation will suggest that these lectures might just as appropriately have been titled ‘The Principles of Political Freedom.’ Their central preoccupation is with rights …” Quoted from Green, T. H., The Political Theory of T. H. Green, ed. Rodman, John R. (New York, 1964), pp. 38f.Google Scholar More precisely to the point is Bergson, Henri, The Two Sources of Morality and Religion, English translation by Audra, R. A. and Brereton, C. (New York, 1935)Google Scholar, esp. chap. i. There seems to be a consensus that political obligation is “one of the oldest problems in political theory …” Mayo, H. B., An Introduction to Democratic Theory (New York, 1960), p. 170Google Scholar. See Cicero, De officiis; Aquinas, St. Thomas, “Treatise on Law,” Summa Theologica, I–IIGoogle Scholar, Questions 90–108.

³ With respect to the “givenness” of the order of being see Voegelin, Eric, Science, Politics and Gnosticism (Chicago, 1968), pp. 53ff.Google Scholar

⁴ Cf. Gilmore, Myron P., Argument from Roman Law (Cambridge, Mass., 1941), pp. 26ff, 127Google Scholar and passim; also, Pocock, J. G. A., The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (New York, [1957]), esp. chaps, i and iiGoogle Scholar.

⁵ See, for example, the summary in Morey, William C., Outlines of Roman Law, Comprising Its Historical Growth and General Principles, 2nd ed., revised (New York, 1914), pp. 167–218Google Scholar; also, Radin, Max, Handbook of Roman Law (St. Paul, 1927), sects. 181 et seq. (pp. 477ff)Google Scholar; and the same author's Handbook of Anglo-American Legal History (St. Paul, 1936), esp. chap, ix (pp. 111ff.)Google Scholar

⁶ See Kantorowicz, Ernst, Frederick the Second, 1194–1250 (New York, 1957), pp. 233ff.Google Scholar Also, Stone, Julius, Social Dimensions of Law and Justice (Stanford, 1966), pp. 89–94Google Scholar.

⁷ On Roman law influence on early English law see Radin, , Handbook of Anglo-American Legal History, sects. 162, et seq. (pp. 275ff)Google Scholar; on the Tudor period see Maitland, W., English Law and the Renaissance (Cambridge, Eng., 1901)Google Scholar; SirHoldsworth, William, A History of English Law (London, 1903–1938), IV, 253ffGoogle Scholar; cf. Radin, Max, Handbook of Anglo-American Legal History, p. 116Google Scholar; Elton, G. R., ed., The Tudor Constitution: Documents and Commentary (Cambridge, Eng., 1960), p. 152nGoogle Scholar; also the remark of Pocock, , The Ancient Constitution, p. 32Google Scholar.

⁸ Corwin, Edward S., ed., The Constitution of the United States of America: Analysis and Interpretation (Washington, 1953), p. 332Google Scholar.

⁹ Gilmore, , op. cit. p. 13Google Scholar, has observed that “the revival of the Roman law made possible the construction upon certain misunderstood texts, like those which dealt with the merum imperium, of a political theory which was completely unrelated to the original meaning of the texts, but nevertheless was represented as being the inevitable deduction from them.” The misuse of the Roman Law concept of obligation by Bentham and Austin is noted in passing by Anson, W. R., Principles of the English Law of Contract, 2nd American Edition, ed. Knowlton, J. C. (Chicago, 1887), pp. 6f.Google Scholar There seems to be no detailed study of this problem in the English thinkers; cf. d'Entreves, A. P., The Notion of the State: An Introduction to Political Theory (Oxford, 1967), pp. 97ffGoogle Scholar; Sabine, G. H., A History of Political Theory, 3rd ed. (New York, 1961), pp. 277–280, 400, 404Google Scholar.

¹⁰ Anson, loc. cit.; see the excellent analysis of Bentham and Austin by Hart, H. L. A., The Concept of Law (Oxford, 1961)Google Scholar, passim; ibid., p. 238 for the Roman Law meaning of obligation and current Anglo-American usage. Cf. Paton, G. W., A Text-Book of Jurisprudence (Oxford, 1946), pp. 107ff.Google Scholar

¹¹ Second Treatise of Government, chap, v, sect. 27. For the argument that this is “normal usage” for Richard Baxter and other of Locke's contemporaries and possible sources, see the discussion and literature cited in Locke, John, Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus by Laslett, Peter (Cambridge, Eng., 1963), pp. 100ff, 101n, 305n.Google Scholar

¹² For these distinctions in the Roman law, see Morey, , Outlines of Roman Law, pp. 341ff.Google Scholar

¹³ See the critique of the “simple imperative theory” in Hart, , The Concept of Law, passim, esp. pp. 16f, 62f, 234–237Google Scholar.

¹⁴ Cf. the classic passages: Locke, Second Treatise of Government, chap, viii, sects. 95–100; Hobbes, Leviathan, chap. xvii. Hobbes uses the term covenant, which he has previously defined as a species of contract (chap. xiv).

¹⁵ Macpherson, C. B., The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1962), pp. 271f, 276f.Google Scholar

¹⁶ The Second Treatise of Government, chap, xix, sect. 233, quoting William Barclay.

¹⁷ Cf. Lasswell, Harold, Politics: Who Gets What, When and How (New York, [1936])Google Scholar; also, Bluhm, William T., Theories of the Political System: Classics of Political Thought and Modern Political Analysis (Englewood Cliffs, 1965), chap, ix, esp. pp. 326fGoogle Scholar; Friedrich, Carl J., An Introduction to Political Theory: Twelve Lectures at Harvard (New York, 1967), chap, ixGoogle Scholar; Crick, Bernard, The American Science of Politics: Its Origins and Conditions (Berkeley and Los Angeles, 1967), chap. x.Google ScholarStoring, Herbert J., ed., Essays on the Scientific Study of Politics (New York, 1962), chap, ivGoogle Scholar; Germino, Dante, Beyond Ideology: The Revival of Political Theory (New York, 1967), pp. 198–214Google Scholar.

¹⁸ “… feudal law is not a special law applicable only to one fairly definite set of relationships, or applicable only to one class of men; it is just the common law of England.” Quoted from Pollock, F. and Maitland, F. W., The History of English Law Before the Time of Edward I, 2 vols., 2nd ed. (Washington, 1959), I, 235f.Google Scholar The discovery of this relationship between common law and feudalism in seventeenth-century England is analyzed by Pocock, The Ancient Constitution and the Feudal Law.

¹⁹ This is not simply to say that the Lockean account is unhistorical, but to notice that it is ahistorical as well: a theoretical construct built up out of a speculation on the nature of man and existence which is heedless of the non-brutish differentia specified of man, his mind and spirit. See the analysis of Pocock, , op. cit., pp. 236EFGoogle Scholar.

On the compact in the Founding Fathers see, for example, the following: Madison, James, Letters and Writings of James Madison, 4 vols. (Philadelphia, 1865), IV, 63, 294, 392f, 422Google Scholar. Farrand, Max, ed., The Records of the Federal Convention of 1787, 4 vols., Revised Ed. (New Haven, 1937), I, 54, 250, 314f, 324; III, 140, 166Google Scholar. Hamilton's, Alexander “H. G. Letter XII,” of March 8, 1789, in Hamilton, The Papers of Alexander Hamilton, eds. Syrett, H. C. and Cooke, J. E., 12 vols. (New York, 1961), V (1962), 294Google Scholar. Thomas Jefferson's letter to Madison of September 6, 1789, in Boyd, J. P., ed., The Papers of Thomas Jefferson, 52 vols. (Princeton, 1950-), XV (1958), 392ff.Google Scholar

²⁰ Quoted from Pollock, and Maitland, , History of English Law, I, 297f.Google Scholar

²¹ Ibid., II, 190.

²² This principle is clearly formulated in the Schwabenspiegel (late 13th century) as follows: “Wir sullen den herren darumbe dienen, daz si uns beschirmen. Beschirmen sie uns nit, so sind wir in nit dienstes schuldig nach rechte.” Quoted from Brunner, Otto, Land und Herrschaft: Grundfragen der territorialen Verfassungsgeschichte Oesterreichs im Mittelalter, 4th Ed. (Wien-Wiesbaden, 1959), p. 240Google Scholar.

²³ Sachsenspiegel, ed. Ecfchardt, K. A. (Hannover, 1933), lines 175–182, pp. 8f.Google Scholar

²⁴ The classic study is Hartz, Louis, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York, 1955)Google Scholar.

²⁵ Clear expression of this self-interpretation of Americanism is given in Ezra Stiles' sermon “The United States Elevated to Glory and Honor” (preached on May 8, 1783); reprinted in John W. Thorton, ed., The Pulpit of the American Revolution: Or, The Political Sermons of the Period of 1776 (Boston, 1860), pp. 399ff. Of interest is the article by Mead, Sidney E., “The Nation with the Soul of a Church,” Church History, XXXVI (1967), 262–283CrossRefGoogle Scholar.

²⁶ Nicomachean Ethics, 1166al-1167b16; Politics, 1252al-1253a18.

²⁷ Voegelin, Eric, Order and History, 3 vols. (Baton Rouge, 1956–1957), III, 33nGoogle Scholar; Strauss, Leo, Natural Right and History (Chicago, 1953), p. 244Google Scholar.

²⁸ Crito, 51b-d.

²⁹ Second Treatise of Government, sect. 97. Cf. Bentham, Jeremy, Fragment on Government, ed. Montague, F. C. (London, 1891), pp. 153ff.Google Scholar

³⁰ The Federalist, No. 2.

³¹ Politics, 1253a4 citing Homer, , Iliad, ix, 63Google Scholar.

³² Common sense is here used to designate the core consensus of the American community, or Americanism as coined by Jefferson. See his Letter to Edward Rutledge, June 24, 1797, which speaks of “the dictates of reason and pure Americanism” in Jefferson, , Writings of Thomas Jefferson, eds. Lipscomb, A. A. and Bergh, A. E., definitive ed., 20 vols. in 10 (Washington, 1905), 9:409Google Scholar; cf. the use of the term by John Adams, Letter to Benjamin Rush, July 7, 1805, in Adams, , Old Family Letters, Copies from the Originals foi Alexander Biddle (Philadelphia, 1892), p. 70Google Scholar. The understanding of Americanism as the common sense of the nation, further, depends upon a conception of common sense which ranges from that of Vico (“Common sense is judgment without reflection shared by an entire class, an entire people, an entire nation, or the human race”) to that of Thomas Reid (“There is a certain degree of it which is necessary to our being subjects of law and government, capable of managing our own affairs, and answerable for our conduct towards others: This is called common sense, because it is common to all men with whom we can transact business, or call to account for their conduct”). See Vico, Giambattista, The New Science, trans., and ed. from the Third Edition (1744) by Bergin, T. G. and Fisch, M. H. (Abridged and Revised Ed.; New York, 1961)Google Scholar, paragraph 142 (p. 21); Reid, Thomas, Essays on the Intellectual Powers of Man (Edinburgh, 1785)CrossRefGoogle Scholar, Essay VI, chap. ii. Cf. the reference to this kind of consensus in Crick, , The American Science of Politics, pp. 36, 43, 55, 234Google Scholar, and passim. See the discussion of common sense in Bergson, , Two Sources of Morality and Religion, pp. 96ff.Google Scholar

³³ Second Treatise of Government, sect. 134.

³⁴ Politics, 1287a19–32.

³⁵ Blackstone's statement of the principle is clear enough: “This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original” (Commentaries, I, 41). Quoted in Boorstin, Daniel J., The Mysterious Science of the Law (Boston, [1941]), p. 49Google Scholar.

³⁶ As Parker of Waddington, Lord Chief Justice of England, recently observed: “The great commentators, notably Bracton and Fortescue, paid great homage to the concept of the rule of law, Bracton laying it down that the King is under God and the law.” Quoted from Howard, A. E. Dick, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville, 1968), p. xGoogle Scholar.

³⁷ Second Treatise of Government, sects. 23, 135, 149, 168, 233, 240. “The Obligations of the Law of Nature, cease not in Society, but only in many Gases are drawn closer, and have by Humane Laws known Penalties annexed to them, to inforce their observation. Thus the Law of Nature stands as an Eternal Rule to all Men, Legislators as well as others.” This quotation from section 135 contains one of Locke's rare uses of the term obligation; it is sandwiched between two quotations from Richard Hooker, the second of which is itself taken from Aquinas, Thomas (Summa Theologica, I, ii, 95)Google Scholar. As d'Entreves has noted “the greatest trick played by Locke on Hooker was that of presenting him as a forerunner of his own theory of the social contract” (The Notion of the State, p. 197n). See Laslett, , Locke's Two Treatises of Government, pp. 376, 295ff.Google Scholar

The grounding of civil disobedience in resistance to tyranny is supported by Hume, David in A Treatise of Human Nature, first published in 1740, 2 vols. (London, 1911), II, 251f.Google Scholar It is similarly justified by perhaps the most famous of American disobedients, Henry David Thoreau, who argues that “Government is at best but an expedient” and resolves all “civil obligation” into this expediency. He juxtaposes the “lawyer's truth” to “Truth,” “prudence” to “wisdom”: “Truth is always in harmony with herself, and is not concerned chiefly to reveal the justice that may consist with wrong-doing.” His orientation is taken toward “the fountainhead” from which has trickled downstream the relatively impure truth of “the Bible and the Constitution.” See his “Civil Disobedience” (1849), in Walden and Other Writings, ed. Atkinson, Brooks (New York, 1937), pp. 635, 639, 657ff.Google Scholar Cf. The Journal, II (01 10, 1851), 141Google Scholar; Torrey, B. and Allen, F. H., eds., The Journal of Henry D. Thoreau, 2 vols. (New York, 1962), II, 179Google Scholar.

Finally, the most celebrated American disobedient of our time takes the same ground and appeals to natural law and St. Augustine, in “Letter from Birmingham Jail,” reprinted in M. L. King, Jr., Why We Can't Wait (New York, 1964), p. 82.

³⁸ Politics, 1287a30.

³⁹ Bagehot, Walter, The English Constitution and Other Political Essays, “Latest Revised Edition” (New York, 1877), p. 296Google Scholar.

⁴⁰ The Federalist, No. 51. This key principle of the separation of powers and system of checks and balances seems to have as its immediate source John Adams' Defence of the Constitutions whose first volume appeared shortly before the Convention convened. For Madison's term ambition Adams employs emulation; see Adams, John, The Works of John Adams, ed. Adams, C. F. (Boston, 1850–1856), VI, 279Google Scholar. On the influence of Adams on the Convention see the letter of Benjamin Rush to Richard Price of June 2, 1787, quoted in Farrand, Max, ed., Records of the Federal Convention of 1787, III, 33Google Scholar. The theme of separation and equilibrium of powers is prominent in Adams' writings: cf. Works, IV, 391, 408 (citing Montesquieu), 410, 436; V, 10, 40, 273, 488; VI, 234, 246ff, 252, 271f, 284, 297f, 323, 397, 399; VIII, 560; IX, 183. See the important letter of Madison to Jefferson of June 6, 1787, in Madison, James, Letters and Writings, ed. Adams, Charles F., 4 vols. (Philadelphia, 1865), I, 332Google Scholar. Also the statements attributed to Luther Martin in the convention in Farrand, , op. cit., I, 437–441Google Scholar. Blackstone's analogy of the parts of government with “three distinct powers in mechanics,” so operating as to “form a mutual check upon each other” (Commentaries, I, 154f) is intimately connected with Adams' and the Constitution's principles; cited in Walsh, Correa M., The Political Science of John Adams: A Study in the Theory of Mixed Government and the Bicameral System (New York, 1915), p. 233Google Scholar. It appears likely that the whole symbolism can be traced to Newton's “System of the World,” which appeared as Part III of the Principia in 1687, and that the fundamental principle of the Constitution is based on a marriage of political physics and philosophical anthropology; See Ellis Sandoz, Americanism: Political Theory and the American Civil Theology, chap, ix, forthcoming. Cf. Hamilton, in Federalist, No. 9Google Scholar. Also, of course, Montesquieu, The Spirit of the Laws, Bk. XI.

⁴¹ Federalist, no. 51.

⁴² Ibid., nos. 17, 28, 33, 45, 46, 49, 50.

⁴³ See Corwin, Edward, “The ‘Higher Law’ Background of American Constitutional Law,” The Harvard Law Review, XLII (1928–1929), pp. 149–185; 365–409Google Scholar; reprinted by Cornell University Press in 1957. This is not to say that talk of natural law has entirely ceased either in the streets or in the courts. See Note 35 supra.

⁴⁴ Hart, , The Concept of Law, pp. 86, 168Google Scholar. This is not, however, to minimize the importance, indeed, the ultimate decisiveness of the sense of obligation to moral and legal systems (cf. pp. 196ff, 206ff). Hart's considerations at these points parallel much that d'Entreves has to say in The Notion of the State, Part III.

⁴⁵ The “myth of the ancient constitution” designates the common law view of the English law and constitution as existing from time immemorial and containing all justice and liberty. The phrase and invaluable analysis are Pocock's, J. G. A. in The Ancient Constitution and the Feudal Law, p. 36Google Scholar, and chaps. ii and iii. The “myth” received its full expression in the work of Sir Edward Coke. Into the myth was woven the content of feudal law as well as divine and natural law (p. 51) as sources of common law. The myth is no doubt a fundamental symbolism of the Anglo-American civil theology. It finds expression in Blackstone (pp. 243f) and in Burke (pp. 35, 241f, 249). It is broken with by Hobbes (pp. 162f, 168), Locke (p. 237), Bolingbroke (p. 246), and Paine (p. 232).

The picture which emerges from Pocock's analysis as related to this essay is that of the clear rebellion of the rationalist and empiricist theorists against the historically grounded myth of the ancient constitution and its symbolization of the English transcendentalist political tradition. In the field of general philosophy, this tendency was also manifest: “English philosophy is, to this day, almost as empirical and positivistic as in the times of Bacon and Locke. We may even claim, in general, that England, though rich in thinkers of the highest order, has never had but a single school of philosophy, or, rather, that it has never had any, for its philosophy is a perpetual protest against Scholasticism.” Weber, Alfred, History of Philosophy, trans. Thilly, F., Revised Ed. (New York, 1925), p. 316Google Scholar.

⁴⁶ Eisen, J. and Steinberg, D. in The Annals of the American Academy of Political and Social Sciences, CCCLXXXII (03 1969), 85f.Google Scholar

⁴⁷ On parousiasm in modern ideology see Voegelin, Eric, Science, Politics and Gnosticism, pp. 48f, 53ffGoogle Scholar; and Sandoz, Ellis, “The Science and Demonology of Politics,” Intercollegiate Review, V (Winter, 1968–1969), 117ff.Google Scholar

⁴⁸ Cf. Green's, T. H. comment, Lectures on the Principles of Political Obligation, Lindsay, A. D., ed. (London, 1941), sect. 136, p. 141Google Scholar. He speaks of the “Roman state.”

⁴⁹ d'Entreves, The Notion of the State, passim; Hart, , The Concept of Law, pp. 196–200Google Scholar.

⁵⁰ Pro. A. Cluentio Oratio, C. 53, sect. 146.

⁵¹ See Sandoz, Ellis, Political Apocalypse: A Study of Dostoevsky's Grand Inquisitor (Baton Rouge, 1970)Google Scholar.

⁵² The Concept of Law, p. 188.

⁵³ Cf. Principles of Political Obligation, ed. Lindsay, , sects. 25, 251 (pp. 44, 247) and passimGoogle Scholar.

⁵⁴ Hart, , op. cit., pp. 177ff, 184ff.Google Scholar

⁵⁵ Politics 1253a2; 15–18, E. Barker's translation.

⁵⁸ Nicomachean Ethics 1177b26ff.

⁵⁷ Two Sources of Morality and Religion, pp. 232ff, 280ff. See Sandoz, Ellis, “Myth and Society in the Philosophy of Bergson,” Social Research, XXX (1963), 171–202Google Scholar.

⁵⁸ Cf. Two Sources of Morality and Religion, pp. 255ff.