I. Basic Interpretation

If you are interested in learning more about this topic after reading Lee Ward’s essay, please go to the Primary Source Documents to read some of the texts mentioned in the essay. Biographies of James Otis, Algernon Sidney, and William Blackstone are also available. As you go back to the primary sources, keep in mind the following questions:

1.     What differences were there between the liberal and conservative strains of the natural law tradition in the years leading up to the American Revolution?

2.     Why does Ward suggest these differences developed? What historical and political reasons might have motivated them?

3.     Why was it important to the British (and to many Americans) to uphold the ideal of Parliamentary sovereignty? Why were the British unable or unwilling to accept the American conception of natural law?

4.     What were the differences between the moderate and radical theories of empire mentioned in Ward’s essay? How are these theories expressed in the primary source texts?

5.     What did Jefferson believe united the colonies to each other and to Britain?

6.     Why did many of the thinkers discussed in this section argue that there was a difference between Parliament’s power to tax the colonies and its power to regulate their trade?

7.     How did Thomas Paine modify and develop the ideas of earlier American thinkers about the relationship between Britain and her colonies?

II. Connections to Other Thinkers

1.     According to Aristotle, there is naturally a maximum size for polities, above which political life begins to break down. The polis, he argues, must be a concrete community; its government must be an integral part of it. Two thousand years later, Thomas Paine argued that “’tis not in the power of Britain to do this continent justice,” and that “a government of our own is a natural right.” Is the resemblance between Aristotle’s arguments and Paine’s merely superficial? Is there anything Paine’s political views have in common with Aristotle’s? Where do they differ?

2.     Thomas Aquinas argues that a government gains its legitimacy by promulgating laws that accord with the natural law. Paine, like most representatives of the “radical strain” of natural law thinking, believes that governments gain legitimacy from the consent of the governed. How much common ground is there between these positions? In your opinion, what would Thomas have thought of the American Revolution?

3.     When describing how British law applies to the colonies, Blackstone says that much of British positive law does not automatically apply to the colonies, and that the laws of countries conquered by Britain, “unless such as are against the law of God,” remain in effect. Compare this with the “law of nations” described by Grotius, Pufendorf, and others. Is Blackstone arguing that Britain and its colonies are, in effect, separate nations?

4.     The American thinkers discussed in this section all endorse the idea of self-government, to a greater or lesser extent; they think political communities ought to be able to make laws for themselves. In his debates with Lincoln, Stephen Douglas argued that each territory should be allowed to make its own rules on slavery, i.e., that they should be allowed to govern themselves.  In Lincoln’s opposition to this idea, and in his later defense of the Union by arms, was he contradicting the thinkers discussed in this section? Does the rhetoric of self-government in the texts discussed in this section allow for any universal standards, even on an issue such as slavery?

5.     For Renaissance political thinkers like Machiavelli and Guicciardini, what matters is not whether political authority is justified, but rather whether it can be maintained. Obviously, then, they would not share Jefferson’s or Otis’s concern over Parliament legislating for the colonies. But what might they conclude about Britain’s management of its American empire? Would they have approved of the approach taken by Parliament?

6.     Blackstone, when describing the powers of Parliament, argues that even if Parliament should enact an immoral law, there is no power but Parliament that could undo it. Should this view be classified as legal positivism, like that of Hobbes or Justice Holmes? What would it mean to say that a law is wrong, if there is no political authority that can judge or overturn unjust laws? What are the implications of his view that the Parliament has the power to “alter the established religion of the land”?

III. Critical Interpretations

1.     How was it possible that the natural law tradition should develop into two very distinct branches in the 18th century? Were there common elements that held together the “conservative” and the “liberal” strain of natural law thinking? Based on your understanding of natural law, which strain do you think is more consistent with the premodern natural law tradition?

2.     In his essay, Ward gives historical and political reasons to explain why Americans and Britons came to differing interpretations of natural law. Neither group, however, understood their interpretation to be historically contingent: proponents of both views believed they had reasoned their way to the truth. Does the existence of a plausible historical explanation for their positions make you more or less likely to be convinced by their arguments? Why?

3.     Before the American colonies took to open rebellion, many thinkers proposed compromise positions that avoided the radical conclusions of Thomas Paine and the Declaration of Independence. James Otis, for example, argued that Parliament could legislate about trade, but not about internal colonial matters, and Jefferson argued that the King was the sovereign of the colonies, even if they maintained him only by their free choice. Do you think these compromises could ultimately have been tenable? Can these positions be defended in themselves, or do they lead inevitably towards rebellion?

4.     Thomas Paine, though one of the most influential advocates for the American Revolution, concluded in the end that it had not been a radical enough break with the past. He traveled to France, became a strong partisan of the revolution there, where he was almost guillotined for his views, before returning to America, where he was largely spurned for his radicalism. In your reading of his pamphlet Common Sense, do you see any evidence of principles more radical than those of the American Revolution? To what extent does our current régime correspond to Paine’s recommendations?

5.     In his Summary View of the Rights of British America, Jefferson dismisses the idea that Parliament has any authority to legislate for America. As the other texts in this section indicate, Parliament’s sovereignty over the colonies was a widely accepted fact at the time, both in England and in America. Why do you think Jefferson did not discuss this idea in his Summary View? Whom was he trying to convince? Is this text a petition or an ultimatum?

6.     Imagine for a moment that you are a member of the British Parliament in the late 18th century. What might you think about the American documents discussed in this section? How would you respond to their claim that Americans had a natural right to legislate for themselves? Would you find any of their arguments persuasive?

IV. Connections to Contemporary Concerns

1.     In modern American politics, those calling for smaller government and lower taxes usually claim to be continuing the legacy of the thinkers discussed in this section. Is there actually anything in common between the “Tea Partiers” of today and the Boston Tea Party of 1773? If so, what is it? How is your conclusion affected by the difference between America’s status as an imperial colony in 1773, and as a representative democracy today?

2.     To a greater or lesser extent, all of the thinkers you have read in this section believed the colonies had the right to make their own laws, even as they were subject to the laws of the Empire. How similar is this to the situation of American states, which enact their own laws while remaining subject to federal law? Today, many political thinkers call for “federalism” or “subsidiarity,” by which they mean that as many governmental decisions as possible ought to be made on a state or local level. Is this argument supported by the texts discussed in this section? Why or why not?

3.     In his essay, Ward mentions that there were “liberal” and “conservative” strains of natural-law thought in the years before the American Revolution. There is an analogous divide today. Some people, for example, argue that abortion violates the natural rights of the unborn, while the Supreme Court has maintained that the natural right to privacy demands that abortion rights be protected. Do this and other modern disagreements about natural rights have anything to do with the disagreements mentioned by Ward? Can that 18th-century debate shed any light on present-day controversies?

4.     At the time of the American Revolution, most Britons argued that Parliament enjoyed unlimited power to pass whatever laws it wanted. The first Americans viewed this as a problematic arrangement, and tried to avoid it while drafting the Constitution. Both at the time and today, however, some people worry that the American Constitution gives the Supreme Court almost unlimited power to overturn laws or to demand policy changes. Do you think these fears are justified? How well do you think the American Constitution succeeds at insuring that all branches of government are held to account?

5.     Thomas Paine observes that “the constitution of England is so exceedingly complex, that the nation may suffer for years together without being able to discover in which part the fault lies.” For him, this is one of the reasons why it would benefit the colonies to break off from Britain. The current American government is at least as complicated as the British government of that time, consisting of hundreds of agencies and departments in a very complex chain of command. In your opinion, is this a problem for America, as Thomas Paine might think, or is it a necessary response to the complex political and social realities of our times?

6.     In his Commentaries, Lord Blackstone argues that most British laws do not apply in the colonies or other territories held by Britain. Today, there is a similar principle in American law. As the saying goes, “the Constitution does not follow the flag”: the legal rights and protections guaranteed under the Constitution do not necessarily apply to all territories under American control. At the military prison at Guantánamo bay, for example, detainees do not have the rights they would have if they were tried on American soil. Do you think it is appropriate to apply Blackstone’s principle to these cases? Was Blackstone right to argue that British law did not necessarily apply to the colonies?