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Who thinks that they can subdue Leviathan? Strength resides in its neck; dismay goes before it. It is without fear. It looks down on all who are haughty; it is king over all who are proud. These words inspired PJ Wehry to create Chasing Leviathan. Chasing Leviathan was born out of two ideals: that truth is worth pursuing but will never be subjugated, and the discipline of listening is one of the most important habits anyone can develop. Every episode is a dialogue, a journey into the depths of a meaningful question explored through the lens of personal experience or professional expertise.
PJ Wehry (00:01.474)
Hello and welcome to Chasing the Viathan. I'm your host, PJ Weary, and I'm here today with Dr. Alexander Rosenthal-Pubel. He is a lecturer at John Hopkins Government Program, and we are here today to talk about his book, Crown Under Law, Richard Hooker, John Locke, and the Ascent of Modern Constitutionalism. Dr. Rosenthal-Pubel, wonderful to have you today.
Alexander Rosenthal Pubul (00:26.443)
Thanks, glad to be back. I was here once before on the wisdom of our ancestors, but I'm glad to be back to discuss this.
PJ Wehry (00:34.124)
Well, I really enjoyed that episode and I've had Dr. McLeer on a couple of times since. Yeah, it's always a joy. I'm glad to have you back on. So just to start off with that initial question, why this book? Why do we need to know about Richard Hooker?
Alexander Rosenthal Pubul (00:48.747)
Yeah, so I mean, think John Locke, who's part of the book, needs no introduction. I mean, if there's a single figure who is responsible for the American political creed that you find in the Declaration of Independence, it would be John Locke. But Richard Hooker is a much more obscure figure, and that, I thought, was a curious thing because there are 16 references to Hooker. He's basically Locke's go-to in the Second Treatise of Government, Locke's most important political.
work. And so part of it is the enigma. Why, you know, this is a figure you can look at much more carefully. But I think most of all, he is a bridge figure between the medieval and the modern world who tells us a lot about how constitutionalism developed. And I think by looking at Hooker, we find a different story about how about how this idea of constitutionalism came into being.
and of course that sort of the central the central theme in my book if you want i can just briefly sketch what what i think constitutionalism is for for the
PJ Wehry (01:57.646)
That was the next question, so you anticipated me. I love it.
Alexander Rosenthal Pubul (02:00.915)
Okay, great. So I think of constitutionalism the way I defined it in the book is a synthesis of answers to three core questions in political philosophy. So first is what is the place of, what is the relationship of law and power? And the answer that constitutionalism gives is that power should be placed under law. So it's anti-absolutist, right? As Hooker said,
happier that people whose law is their king in the greatest things than that whose king is himself the law, right? The second is a theory of sovereignty, right? Where does sovereignty arise? And in the early modern period, you had the divine right of kings emerging actually. People think it's a medieval idea. It's really an early modern idea. So that's part of the corrective I'd like to offer.
But what constitutionalism argues is that sovereignty is vested in the whole community, right? And is delegated to a king or to a democratic system or whatever type of, whoever holds authority in the society. And the third is what is the basis of political obligation? Why should we obey? Which I think is something everybody kind of thinks about. Why do we obey laws? What gives them legitimacy?
And what constitutionalism answers is that what gives governments legitimacy is the consent of those who are governed. And this we find very clearly in Richard Hooker. All three ideas, in fact. So that's how I would define constitutionalism in brief.
Alexander Rosenthal Pubul (03:52.483)
A theory of law placing power under law, a theory of sovereignty vesting it in the whole community, and a theory of political obligation basing obligation on consent.
PJ Wehry (03:53.045)
I'm good.
PJ Wehry (04:04.28)
And when we talk about...
Where is sovereignty located? We of course mentioned the divine right of Kings. That's something that's coming out of like Louis the 14th, which is, you know, this early modern, kind of idea. when we talk about the whole community, I feel like there's another, side to this. Hey, one of the, like, you talk about Strauss's interpretation a lot of Locke and you talk about how Strauss, Strauss stresses that feels.
like not the best phrase or maybe it's a really good phrase, Strauss stresses. No, he talks about Hobbes' influence on Locke and you talk about Hooker's influence on Locke. How does, because of course Hobbes has the social contract, how does Hooker and Hobbes differ? Because they're writing at a similar time, correct?
Alexander Rosenthal Pubul (05:00.023)
Well, yeah, Hobbes would be a little bit later. So Hobbes is born, if I remember, 1588, which is easy to remember because of the Spanish Armada. And Hooker is purely Elizabethan. So he's born in 1554 and dies in 1600. Hobbes had a very long, long life. But in terms of how they differ.
PJ Wehry (05:09.772)
Yes.
Alexander Rosenthal Pubul (05:23.233)
Well, so let me first of all, let me just address the Straussian thing. So one of the things that my research, I went into Locke's own notes when I went into Oxford and there's almost no reference to Hobbes as there's almost very little reference to Hobbes in, think a Locke calls him at one point the justly decried name, but there's very little reference, but I did find a lot of reference. I think he calls him the justly decried name, but he calls Hooker the judicious Hooker.
And Strauss kind of portrays Locke as sort of a closet Hobbesian in certain ways. But I think the historical record shows that Hooker was actually the much more prominent influence on Locke. mean, Hooker is quoted 16 times. So what are the basic differences? So I would say for the...
So there's a concept, they both talk about compact or contracts, right? The social contract theory. But there's different kinds of contract theory in the early modern period. Hobbes is called a pactum societate. So he portrays humanity as being, man as being originally just individuals, right?
And then the contract actually create, remember the war of each against all, and then the contract actually creates the society. Hooker is much more in the classical and medieval tradition of saying that humans are naturally social, right? Just like Aristotle says, humans have language. We don't survive as just individual beings unlike solitary animals, right? So societies are natural.
But what does is, what Hooker does, and this is the, I think, the very vital, crucial move, he distinguishes between society and politics, right? So the question is, okay, humans are naturally social, but are we, is there a natural political form, right? And so, no, the answer is no. We find monarchies, aristocracies, democracies, all kinds of forms in history. So how do we decide which one? Well, the society decides.
Alexander Rosenthal Pubul (07:37.259)
Right. So there's a pact that creates the government or decides what form of government is going to exist. The second way I would say that Hooker differs markedly from Hobbes is that Hobbes actually says at one point that before there was law, there was no injustice. Right. That, in other words, before the social contract comes into being, we're in a pre-moral universe in some sense. Whereas Hooker is very much in a Thomistic tradition.
of believing in natural law so that even in this society, and Locke makes the same argument, even in this society before politics, the state which Locke would famously call the state of nature, right? Even in that state, human beings would be fundamentally under a moral law. So the state of nature, we could say there's a state of nature in Hobbes, a state of nature in Hooker, but for Hooker, it's not pre-social and it's not pre-moral.
And for Hobbs it is, if I were to summarize.
PJ Wehry (08:39.382)
Yeah, I'm actually a little frustrated because what I should have done is I should have had you on to interview about this before we did Wisdom of the Ancients and before I had Dr. McLeer on for his last book because those two books make so much more sense now as you're talking about this. Like when you talk about the need to divide into different institutions and not give everything over to the state. I mean, a lot of this is coming out of
Alexander Rosenthal Pubul (08:49.88)
Thank
Alexander Rosenthal Pubul (08:58.049)
Hehehehehe
Alexander Rosenthal Pubul (09:06.486)
Yes.
PJ Wehry (09:08.706)
the Hobbs versus Hooker distinction because for Hobbs, the state is basically everything, whereas Hooker has places and uses for different institutions. Is that a right reading of that?
Alexander Rosenthal Pubul (09:18.743)
Yes, yes, yes. I think here's a fundamental misconception that I hope my book did something to challenge at least. There's a conception that there was like, know, the Middle Ages was about divine right of kings and absolutism. And then in the Enlightenment somehow in the 18th century or something like that, this idea of liberty emerged and overthrew these clerical chains.
liberal and created modern liberal constitutional states. So that view is quite wrong. So I mean, if you look at the medieval period, St. Thomas Aquinas, who's a big source for Hooker, St. Thomas Aquinas argues that you are not required to obey laws which go against the natural law, that those kinds of laws that go against the natural or the divine law,
are actually acts of force or violence by the king, right? Or by the public authority, right? And this was quoted by Martin Luther King, for example, the right to resist, Thomas Aquinas was quoted on this point. And he says that there are cases where, when he deals with the question of sedition, where the one guilty of sedition is the ruler, not the people, that they can remove a tyrannical ruler.
So this was the medieval view and in practical terms, kings had much less authority in the middle ages because of feudalism and so forth. What was happening in the modern period, and here we're talking about 16th and 17th centuries, is that kings are in France, in Spain, in England, they are bringing the feudal lords to heel, creating professionalized armies, modern administrative states, and you need a new theory to justify it.
Right? And so you have people like Bodin going back to Roman law with this idea of princeps legibus solutus, that the king is is absolved of the law, the king and the source of the law. Right? This is an absolutist theory. And then you have the patriarchalist who we could talk about later. you have theories. Hobbes is another example all the way on the other, even though he's a contractarian.
PJ Wehry (11:25.869)
Yeah.
Alexander Rosenthal Pubul (11:38.445)
but he ends it with an absolutist theory. So you have political theories emerging to justify this new absolutism, and one of them is the divine right of kings. So in fact, what we call constitutionalism is drawing on an older tradition resisting the modern development. It's an irony, but that's more or less what's happened.
PJ Wehry (12:03.246)
Well, and think there's something interesting here when you talk about the medieval period. One of the things that struck me, I've been reading more history in that time period and they didn't completely conflate the church in the state, but there was a much closer relationship. And one of the ways that that showed up is that they started talking about in the way that in first Corinthians, Paul talks about the church as a body. And that's always been, like, we have different members doing different things. It's okay to be, you know, it's important that we're different, right?
Alexander Rosenthal Pubul (12:32.728)
Yes.
PJ Wehry (12:32.844)
the same thing gets applied to the medieval state. And so there is a kind of dignity. There isn't just the king overall. There's a hierarchy and it's supposed to, in the same way that the human body and the human mind, the human soul reflects the cosmos at large, the state is supposed to do that as well. And so there's a certain amount of dignity and I won't say use, but purpose for each member of society that gives them
Alexander Rosenthal Pubul (13:01.4)
Yes.
PJ Wehry (13:02.376)
Leverage is that a is that a which I think hooker picks up on but locks. Well, maybe maybe I'm jumping too far there, but it seems like lock doesn't pick up on that as much.
Alexander Rosenthal Pubul (13:09.923)
Well, yeah, I think that's right about the Middle Ages. there's a concept. on the one hand, Christianity brings this idea of equality of dignity. see it in Galatians, right? There's neither Jew nor Greek, slave nor free. But on the other hand, as you're pointing out in Corinthians, there's also a sense that there are different functions and gifts and vocations within the society. And this is a strongly part of the medieval worldview. So you have the
the church men, which exist in a kind of hierarchy, and then you have the different orders of nobility and so forth. But what's important about the Middle Ages is that the modern state had not yet developed. In fact, the Roman state had collapsed, remember, at the beginning of the Middle Ages, and the church in some sense began to fill the vacuum. And that's why the church played such a prominent political, specifically political role. And you had this idea of Christendom, right? So people in the Middle Ages, I think, would identify
much less as being Spanish, English, French, Italian, and much more as part of this body of Christendom, right, the body of Christians, in some sense, under the spiritual rule of the Pope and the, in theory, temporal rule of the Holy Roman Emperor. So it was considered like one community with a spiritual and a temporal function. But what's happening in modern, modernity is discovering this idea of sovereignty.
Right. So you're having the emergence with the as kings get stronger relative to the church and relative to the feudal lords, they're creating these sovereign states, which is what we start to think of as Spain, England, France, you know, in much more robust sense. Those those those those offices like King of France existed, but in practice, they had relatively little power. So I think that's the that's the political dynamic we need to understand as we're shifting into.
the modern era.
PJ Wehry (15:06.302)
Not to get too deep in the weeds, but this has been helpful for me because it's very confusing because it's like, was the Holy Roman Emperor in charge of everybody? And their answer is yes, but not in the way that we think of being in charge. Right. I, to use a really, kind of colloquial example, we have a long staircase staircase on our house and sometimes I'll yell up for my kids.
Alexander Rosenthal Pubul (15:21.057)
YAH!
Alexander Rosenthal Pubul (15:33.986)
Mm-hmm.
PJ Wehry (15:36.21)
And sometimes they can't hear me, right? And it's like, right. And sometimes I have to go all the way upstairs and I'm like, you heard me, right? And what we see is, and I think that's part of reason this happens, we get the modern state and that you have to put all these pieces together to understand what's going on is the Holy Roman Emperor was in charge, but communication and speed of travel and all these things were so much lower that for the most part,
Alexander Rosenthal Pubul (15:47.99)
Yeah.
PJ Wehry (16:05.452)
you either did not hear from the Holy Roman Emperor and you just kind of lived your own life, or you could judiciously ignore him. And then if you really, but you had to be careful how far you pushed it, cause then sometimes he showed up at your door with an army, right? It's,
Alexander Rosenthal Pubul (16:19.285)
Yeah, well, other thing you have to remember, So, mean, symbolically, it all goes back to the Constantine and the old Roman emperor. And of course, Charlemagne is crowned as sort of the new Western Roman emperor, much to the chagrin of the Byzantines. Charlemagne is crowned as sort of the new Roman emperor. So you have this idea of the temporal king and the...
PJ Wehry (16:30.508)
Yes!
PJ Wehry (16:40.942)
Right, right.
Alexander Rosenthal Pubul (16:49.109)
and the spiritual ruler, the pope, and who was really in charge of Christendom was a constantly contested, that was the constantly contested issue in the Middle Ages. But what you have to remember in the practical terms that you're talking about is feudalism, right? Because in practical terms, any king or emperor had to rely on the feudal lords to supply his armies. And those feudal lords had their own lands, their own armies and so forth. So in practical terms,
I would say much less actual authority than the Roman emperors of old or even the Byzantine emperors. But symbolically, the idea of the Holy Roman Emperor had tremendous importance. know, Cosmit talks about the Holy Roman Emperors, the Katakon, you know, from Thessalonians, the one who's restraining the coming of the Antichrist and all this sort of thing.
PJ Wehry (17:27.168)
yes.
PJ Wehry (17:36.802)
Right. Yeah, you couldn't say he didn't have any.
PJ Wehry (17:45.933)
Yeah, yeah, Yes, yeah, it's not that, yeah, definitely not the same as the Roman emperor. But, you can't say he doesn't have any authority. It's so, I keep reading it and I'm like, and it keeps shifting with each different Roman, Holy Roman emperor. And then like sometimes the Pope's in charge and then sometimes he's living in Avignon and being told what to do by the King of France. And I'm like, this is, I can't keep it straight, right? There's so many little, little bits and pieces.
Alexander Rosenthal Pubul (17:48.747)
Symbolically very important.
Alexander Rosenthal Pubul (18:14.081)
Yeah, there's a constant seesaw battle for... And of course, Pope Gregory VII excommunicated, know, famously the Holy Roman Emperor had to come to Canossa to beg the Pope for forgiveness. Because of course, the Pope didn't have the military power, but if the Pope in the Middle Ages says you can't have sacraments, you can't have marriages, you can't have confession, then people start to feel like their souls are imperiled.
He absolved the feudal lords of their oaths. So the church had ways to find leverage. Famously in the 19th century, Bismarck had his own conflict with the papacy. And he said, I'm not going to Canossa, referring back to the 11th century.
PJ Wehry (18:46.179)
Yeah, yeah, yeah.
PJ Wehry (19:00.303)
Yes
Yeah. And I mean, and I love that you do a great job at the end of your book, drawing out, right? You even mentioned Martin Luther King Jr. like referencing Aquinas. Like it's very clear. This stuff is still relevant. but I apologize. I went a little far field, but I think it's useful even talking about this leading into Hooker's context. So to understand Richard Hooker, you need to really understand Elizabethan England. Do you mind giving us a little bit of understanding why he writes the laws?
Alexander Rosenthal Pubul (19:12.621)
Yeah.
Alexander Rosenthal Pubul (19:32.299)
Yeah, absolutely. mean, Tudor England is a fascinating period, you know, and, know, is a constant subject. It's referred to in Shakespeare all the time, who, of course, lived in the Elizabethan era. So, I mean, it's a fascinating period. And I would say particularly for the religious convulsions of the time. So just imagine that you were born in the time of Henry.
So you would have been born and in those days, the idea was, who is regio, who is religio, that you were supposed to follow the religion of the ruler. So imagine you're born a Catholic in the reign of Henry VIII, who then breaks from the church and declares himself king. So now you can't be a Catholic legally. There were martyrs, but you couldn't legally be a Catholic. And then then it became sort of more Protestant under Edward.
right, and started to get influences from the Continental Reformation. And then you get Mary, who reconciles the church to his daughter, right, from Catherine of Aragon, who reconciles the church to the Pope, and now prohibits Protestantism, right, whereas before Catholicism was prohibited. Now Protestantism is prohibited, and there were Protestant martyrs under her reign. And so now you're a Catholic again.
And then she was married to Philip II of Spain, who was not able to produce a Catholic heir for her. So when she died and Elizabeth comes in 1556, if I recall. So now the question is, so what's going to happen now to religion? What are we gonna do with religion? And so she creates a...
a kind of, well, she creates in some sense Anglicanism as we begin to know it today, which is meant as kind of a via medea. So it keeps Catholic elements like bishops and many of the ritual elements like the use of vestments, Catholic, you know, and priesthood and all these kinds of things. But but severs again from the Catholic Church declares the act of, you know, the act of supremacy. The monarch is is the ruler over the church and so forth.
Alexander Rosenthal Pubul (21:56.908)
Now this satisfies actually neither side, right? Because the Catholics obviously want England to go back to Roman Catholicism. Now, but what you had during Mary's reign was a lot of Protestants going to the continent and becoming influenced by Calvinism, particularly, right? Which is probably the most international from Geneva, Calvin.
PJ Wehry (22:00.652)
Heheheheh!
Alexander Rosenthal Pubul (22:23.767)
was sometimes called like the Protestant Pope. He exercised like this tremendous pan-European influence. And so what you start to get are Protestants who say that this Anglicanism of Elizabeth is fundamentally Catholic and idolatrous, right? They don't like the vestments. They don't like the episcopacy.
And they basically say the law, the rule of life should be based upon the Bible as they understand it. And what they say is that we need to purify the Church of England from all Catholic remnants, ergo Puritanism, right? And so one of their basic ideas, a lot of them are thinking,
in terms of something, well, we had this in the United States, right, in Massachusetts, sort of theocratic, biblical-based societies, and that the laws should all be based on the Bible. Whereas the Anglicans were saying that there are things in different, right, things which scripture, where scripture silent on, and on those things, the Parliament,
and the bishops and so forth get to decide. So that was basically the dispute as it was going on. Now, while this is all going on, you have tremendous political conflicts, because Elizabeth, of course, suppresses the act of uniformity, requires everybody to attend Church of England services. So both the Catholics and the Puritans are increasingly repressed.
This is one of the factors that eventually leads to the early American colonies. And to top it off, the Pope has excommunicated Elizabeth and called for the prince, the Catholic princes to remove her from the throne, which eventually leads to a war with Spain. So England feels under threat, both within, mean, Elizabeth and England feels under threat, both within and from without. So I would say Richard Hooker is the most prominent figure.
Alexander Rosenthal Pubul (24:45.791)
of this period who is developing a defense of the Elizabethan settlement in his eight books of the laws of ecclesiastical polity. So it's the most copious and influential defense of, we could say, the Anglican settlement of Elizabeth. But it also includes, particularly in the eighth book, a lot of political reflections. And that's
That's where Locke and others were able to draw on his authority. And he becomes really an authority throughout the 18th century, mean the 17th century, he's quoted by every side in political controversies and in religious questions as well.
PJ Wehry (25:30.51)
And I should have written this down, but I think it's 1590s that the laws are coming out, right? Does that sound?
Alexander Rosenthal Pubul (25:36.803)
1593 if I remember.
PJ Wehry (25:40.248)
And I think there's multiple editions as there often were, right? So I think it's anyways. So, and forgive me, I had a teacher who was really big on this. you talk to like, you're talking about this divine interpret, this interpretation from scripture that scripture should give us the answer for our government. Part of the reason, as I understand it, that Hooker was so influential was that the Anglican answer had been the same, that it was
Alexander Rosenthal Pubul (26:01.133)
Yes.
PJ Wehry (26:10.04)
that it was supposed to be from scripture that we got our government. And they were both sides were just going back and forth, proof texting. And then if I understand, and maybe this could help lead us into some further discussion that Hooker split natural law from human law, that he puts human law under natural law, but by splitting natural law and divine law from human law, he is able to,
provide a better defense and this is why everyone kind of agrees this is better, right? Some of the Puritans still kind of struggle against this because, you know, then of course they can't sit, they can't rebel, but.
Alexander Rosenthal Pubul (26:46.689)
Yeah, well, by the way, think Cromwell and a few years of actual Puritan rule and the stages being shut down, College of Government, cured England permanently, both apparently of republicanism, not having a king, as well as a Puritanism. of course, became a factor, as Puritans were leaving England, of course, it became a factor in the United States, colonial America as well, right, and important.
PJ Wehry (27:05.378)
Yeah, that'll do it.
Alexander Rosenthal Pubul (27:16.087)
factor. So Archbishop Whitgift, I mean his basic argument was that there are things in different, right? So a Catholic would say that bishops have a scriptural authority in the apostolic succession, right? That the apostles were the first bishops effectively and then priests were appointed and so forth, right?
But Archbishop Whitgift was talking about things in different, right? So there are aspects of church governance and things like vestments that where human authority can play a role, where the scriptures are not, let's say, decisive or clear, we could say. And the Puritan position was that whatever is not in the scripture is fundamentally adopted.
So they took out very hard. Whatever comes from the Pope in particular, they said, comes from the Antichrist. And so anything that resembles Catholicism, they had a very strong aversion to. So all Hooker was doing actually in the first book, it's largely, I would say, a restatement of Thomism with some adaptations. So for Thomas, there's an order of law. So you have the eternal law, which is the divine wisdom.
PJ Wehry (28:14.199)
Yes.
PJ Wehry (28:40.195)
Yes.
Alexander Rosenthal Pubul (28:41.379)
which is the source of all law. And then you have the natural law, right? Which is the law of our natures leading us toward the good. So you don't actually need, and this has a scriptural root in Romans too, I believe, right? When Gentiles who have not the law do by nature what the law requires, they show that what the law requires is written on their hearts.
and their conscience also bears witness. So this idea of a law written on our hearts is the natural law. What you could discover is good or evil. If you're seeing somebody torturing a child, you don't need to open up your Bible to know that that's wrong, what's going on. So that's kind of the natural law in a nutshell, but of course it's worked out in all its precepts and how do we know and so forth, right? So it's a law of reason as well, right? So human reason can discern.
PJ Wehry (29:24.856)
Hopefully. Yeah. Yeah.
Alexander Rosenthal Pubul (29:36.184)
from nature what good and evil. There's also the divine law of scripture, we should say, maybe above the natural law. And then there is positive law, which would be the law of the state, right? So in England's case, we're talking about the laws of parliament and the common law, right? And so the idea is the ultimate source is the eternal law, right?
The human laws are meant to apply the precepts of divine and natural law, right? For example, how do we punish theft? Theft is against theft or murder or whatever is against natural law, but how do we go about punishing it? Well, that's what we have parliament for. They're gonna set the penalties. And so there's the structure of law, which is very medieval. This is not an innovation at all. This is very medieval.
it goes all, you know, Hooker is in this respect very much a Thomist, including on his idea that God decrees the good because it is good, right? Because it's rational, because it's consonant with the divine goodness and the divine wisdom as against a volunteerist position, which would be more what some Calvinists were arguing that, for example, you know, there was a debate over
predestination, does God condemn you to hell because God decided by a fiat of his will or because it's in accord with the divine justice? So he was very much a Thomist on all of this. Now what its political implication is is that both the divine, the state is limited both from above by divine and by natural law, but it's limited also from below by the laws which come from parliament and from the common
So the the king is essentially bound well as the title says under the law both under the divine and natural law and but from below by the people by the by the law of the commonwealth right the law of politics
PJ Wehry (31:34.167)
Yes.
PJ Wehry (31:43.724)
Which you did a great job explaining that earlier, right? Like where, when it comes to the question of law and power, power is under law, which if for the divine right of kings, the power and the law are either fused together or just like the law descends from the king. Is that?
Alexander Rosenthal Pubul (32:01.699)
Absolutely, yes. Yes, so mean, like I said, Bodan was appealing to Roman law principles that the king is the source of the law, right? And as the source of the law, the superior commander, he can't be under his own will, right? And I think I should probably mention something about patriarchalism at this point, because it's such a big theme.
PJ Wehry (32:18.242)
Yeah, right.
PJ Wehry (32:25.304)
Please, yeah.
Alexander Rosenthal Pubul (32:28.419)
And it's specifically what Locke was reacting to. So one of the theories to justify this new concept of absolutism is this idea of patriarchalism. And so patriarchalism argues that the power of the king is fundamentally like the power of the father. So you are born in a family from the 16th and 17th century view under subjection to the authority of the father. Pater potestas in the Roman.
understanding, right? And so what patriarchalism rests on is this idea of the identification of paternal rule with royal rule, right? So in Filmer's, Sir Robert Filmer's treatise, right, and now we're looking at 17th century and this is going to be the treatise that was published posthumously that Locke objects to,
So he argues that Adam was both the father of the human race, right, and the king of the human race. And that every human generation is born in a condition of subjection, right, to a king, right, to the lawful authority. And that there's basically a lineage going from Adam to the kings of their time.
And this is patriarchalism, right? And that this is by divine fiat, right? That Adam is given dominion by God, right? And is given dominion basically over his children. And therefore there is someone appointed, we could say. And this is something Hooker and patriarchalism already existed in Hooker's time. There were people like Hadrian Seravio who I referenced, right?
1500s. Hooker says very clearly that, like I said, there is no natural government. There's natural society. And if there's no natural government, what that means is that the original condition is one of equality, not of subjection. And therefore, to explain why some are subjected to others, we need consent. And so I think that's the crucial move.
PJ Wehry (34:51.746)
Can you say that one more time? Because I do feel, yeah, that definitely feels crucial.
Alexander Rosenthal Pubul (34:56.001)
Yeah, so what Hooker says is that we are not born in a condition of subjection, right? Like the patriarchalists said. So how do we explain why some rule over others? Well, so our original condition is in some sense one of equality and liberty, right? Within the natural law. And so to explain why we come under government, we need consent. The assent of those who are governed, right?
which explains why some rule over others. And that's what legitimates rule, is this mechanism of consent.
PJ Wehry (35:34.51)
How does he argue against subjection, that we're born into subjection like that?
Alexander Rosenthal Pubul (35:41.56)
Yeah, so I mean, basically, if you look at the variety of commonwealths and so forth, And also he says that, well, so he says, so Aristotle has an idea that politics is natural, right? And that the wise have some kind of natural authority over the foolish, we could say, in some sense, right?
PJ Wehry (36:09.123)
Yeah.
Alexander Rosenthal Pubul (36:10.759)
But Aristotle argues, but he doesn't distinguish society from politics. But Hooker basically says that for anyone to assert that claim would cause, would be problematic, right? I have the right to rule you, right? And so the orderly way, right? So if there's a pre-political condition, right, as is implied by the fact that we need to choose some form of government, and there's a wide variety of forms of government, if there's a previous
a pre-political condition that society has a right to choose for itself who governs, right? And that's the only stable way that you're going to have government because if someone simply asserts, have the right to govern you, you're going to have all kinds of problems. yeah.
PJ Wehry (37:03.875)
Yeah.
I mean, that's a great answer. it explains too why that, I mean, it was kind of obvious from the beginning that that move was really important, but that move in distinguishing society from the state is so kind of essential.
Alexander Rosenthal Pubul (37:23.553)
Yes, I mean, so here is what Hocus says, two fathers within their private family's nature have given a supreme power, how be it over a grand multitude having no such dependency upon anyone, impossible it is that anyone should have complete lawful power but by consent of men. Right, so that's another, that's another I should have mentioned, another important argument that he brings up, the child is not intellectually developed enough.
to govern themselves. But if we're talking about adults ruling over adults, how do you establish that you have just by fiat a right to rule somebody else? So it says that it's lawful when he's quote, granted or consented by them over whom they exercise the same. So that's, yeah.
PJ Wehry (38:17.325)
Yeah.
Alexander Rosenthal Pubul (38:18.871)
So that's the nuts and bolts of it.
PJ Wehry (38:21.614)
You've been incredibly patient. Thank you for walking me through this. So I think now's the time where we show the modern relevance. And really, I mean, I want to say that Richard Hooker is modern, is relevant, but a lot of it comes through Locke. How does Locke appropriate this understanding? And how does he, I won't say misappropriate, but how does he change it to fit his agenda?
Alexander Rosenthal Pubul (38:37.677)
Yes.
Right, okay. Well, it's a spin. It's definitely a spin. And Strauss was right to that degree. I don't agree with his Hobbesian reading of Locke, but it's true that it's a spin. But this, you know, the spin in some sense you were compelled to take a side in the 17th century. So Hooker is defending the Elizabethan settlement at a time when there was basically harmony within the English, well.
There was not harmony on the question of religion as we just looked at, but within monarch, parliament, et cetera, there was basic harmony between the king and between the queen and parliament. What happens is that totally goes out the window in the 17th century, right? So King Charles I begins collecting taxes without consulting parliament.
There this this religious conflict between the Anglicans which the king supported and the Puritans becomes much more intense in the 17th century and eventually you have the English Civil War breaking out I'm just laying about if you don't mind I'm just laying out a little bit so so we can draw the bridge from poker to to lock right because Hoker is writing to defend the Basically conservative purpose defending the established order, but lock is not doing
PJ Wehry (39:50.029)
Yeah.
PJ Wehry (39:56.236)
Now please, always love historical context.
Alexander Rosenthal Pubul (40:03.629)
but let's just look at what's happening. okay, so after Cromwell's death and some years of Puritan ruler, and they killed the king and so forth and established like a Puritan Commonwealth, there's a restoration, right? And so these questions are momentarily quieted, but they increase.
PJ Wehry (40:04.461)
Yeah.
Alexander Rosenthal Pubul (40:29.859)
under the royalists, not least because the religious question again, the heir, his Catholic brother James was viewed as problematic by the Protestants. So the question again was who rules, Parliament or the King, right? Where is sovereignty really vested? Okay, now.
Cooker by this time is a gigantic figure. mean, he is sort of the authority for Anglicanism. And both sides are, so you have England dividing into two sides. We could say the Royalists or eventually the, you know, those came out of the Cavaliers from the Civil War, the Royalists and the Roundheads, right? But later in the restoration period, it would be the Whigs and the Tories, right?
So the Tories defending royal authority and the Whigs defending parliamentary supremacy, right and So now Locke's Locke's patron the the Earl of Shaftesbury is a a zealous wig, right and so in 1685 King James actually takes power. Okay, and
So what happens is the Whigs want him out. Locke and the Earl of Shasbury temporarily leave England. In 1688, you have the revolution, the Whig Revolution, Which has been known in history as the Glorious Revolution, which is clearly taking the Whig side in this debate. Yeah. And in 1688, you have the Whig Revolution. And this is what Locke is writing his two
PJ Wehry (42:14.953)
Yeah, I would say so.
Alexander Rosenthal Pubul (42:25.421)
treatises to defend, right? So he's writing against Filmer.
and his patriarchal theory that I just laid out, that the king has a divine right, and so resistance to the king is inherently seditious. And so Locke wants to sort of develop, we could say, Hooker's theory into a theory of resistance. Now there's just one more thing I can point to for why Locke chooses Hooker as his intellectual sort of godfather. So Filmer,
These ideas that I laid out about consent and contract and natural law and all these things, the case was not only being made by Hooker, it was also being made by Jesuits by the school of Salamanca in Spain, right? Who didn't like this idea of the kings, you know, changing the religion and subordinating the church and so forth, right? And so they were also defending a form of constitutional Thomism.
PJ Wehry (43:17.037)
Right.
Alexander Rosenthal Pubul (43:30.657)
And these are the people that Filmer was writing against, right? These are the people Filmer is writing against, these Jesuits, right? So he references Suarez, he references Bellarmine, Robert Bellarmine, famous from the Galileo case. And so Locke clearly as a Protestant Whig is not going to be using Suarez as his defense, Suarez and the Jesuits as his defense.
PJ Wehry (43:51.395)
No.
Alexander Rosenthal Pubul (43:57.624)
But fortunately for Locke, he has a very devout and established and respected Anglican thinker who made exactly the same arguments, essentially. So this is why Locke is resorting so much to Hooker, because Filmer is kind of making it sound like constitutionalism is this alien Catholic idea. But Locke is able, referring to the authority of Hooker,
PJ Wehry (44:07.885)
Yes.
Alexander Rosenthal Pubul (44:26.445)
to show continuity with this very established traditional figure.
PJ Wehry (44:33.324)
Yes, and to keep it safely Protestant too, because he doesn't want to get excorciated by his own side.
Alexander Rosenthal Pubul (44:37.282)
Yes.
Right, in fact the Whigs were in a sense more anti-Protestant because they wanted to remove King James II who was the Catholic King. So it wouldn't have made sense for him to refer to Suarez, but you know, by a historical happenstance. So the trick for Locke is how do you turn Hooker's theory into a theory of resistance against the monarch?
PJ Wehry (45:08.47)
Right. Which, which Hooker would not have appreciated. Like, Hooker was defending a very conservative idea.
Alexander Rosenthal Pubul (45:14.999)
Very much so, yeah. Right. So, if you think about the logic of what, so Hooker seems to assume that the monarch is not going to go against parliament, not going to go against natural law, not going to go against any of these things, right?
PJ Wehry (45:19.618)
So how does he do it? Yeah.
Alexander Rosenthal Pubul (45:40.203)
Now, so the question, big question becomes, well, if consent is the basis of political obligation, right?
So then what, so then if you have a tyrannical monarch, right, or one you perceive as tyrannical, then does the Commonwealth, does the community have the right to remove that monarch if sovereignty is ultimately vested in the community and if their consent is the ultimate basis of political obligation, right? And so,
What Locke basically argues is using Hooker. So he says, have the state of nature, which is a state of equality and liberty, right? Sovereignty is vested in the community, as Hooker said. They've given authority over to the king for the protection of the rights. And I think Locke's rights theory is more elaborated than Hooker's theory. And that's the sense in which you can call Locke.
PJ Wehry (46:42.883)
Yeah.
Alexander Rosenthal Pubul (46:45.461)
a kind of proto-liberal individualist to a much greater degree than than Hoker. And so what happens when the king, so you have a two-way contract unlike Hobbes' one-way contract, right? The king has to protect the rights. What if the king fails to protect those rights, right? Fails to protect the rights and liberties of the subjects, then the king violates the contract. And then
authority can be returned to the community to remove the king. And of course, that's also what Thomas Jefferson, among others, relied on in the Declaration of Independence. So that's the move. That's the move, right? Turning it into a two-way contract that when the king violates or the monarch violates, the all bets are off.
and sovereignty is returned to from whence it was delegated, which is the people or the community.
PJ Wehry (47:52.078)
So when we talk about, I don't want to be respectful of your time here, but this question has come up before and I can't remember who I had on to ask this. If this question doesn't fit, that's totally fine, we can skip it. But can you talk a little bit about the difference between focusing on natural law versus natural rights? Is that one way of looking at the difference between hooker and law?
Alexander Rosenthal Pubul (48:15.959)
Yes.
I do think that that's a relevant thing. so Leo Strauss, and this is another place where I think his history of ideas is a little flawed. I respect him a lot as a thinker and a philosopher, but I think his history of ideas is a little flawed here. There was a theory that in Strauss, Strauss promoted this particularly, that natural rights is modern and natural law
is classical and medieval. And what did he mean by that? Well, natural law speaks in the language of obligation, right? So natural law would tell you like you have a duty to respect authority, a duty to respect the property of others, a duty to respect the lives of others and so forth, right? So the accent is on duties, on a binding law.
whereas rights become subjective moral claims. Like I have the right to do this. And this is so much part of modern language that's true, right? Like I have a right to a vacation. That's what somebody said, know, like how it's been extended to almost everything. Everybody loves in modernity. Everything is framed in the language. Look at the abortion battle. It's always framed as right to life versus right to my body. You know, like it's every...
PJ Wehry (49:22.093)
Yeah.
PJ Wehry (49:25.358)
Right.
PJ Wehry (49:40.973)
Yes.
Alexander Rosenthal Pubul (49:41.368)
We speak so much and certainly this liberal idea of autonomy and individualism is much more connected. You see how the idea of rights seems to be much more geared toward the individual. However, there has been a lot of studies and I would recommend if you take a look at the scholarship of people like Annabel Brett at Cambridge and Brian Tierney.
that the idea of rights goes all the way back to the Middle Ages. It was just not particularly Thomistic language, but it emerges from the Franciscans and it was very, I'd mentioned the school of Salamanca in Spain in the 16th century. They very clearly were referring to rights. Francisco Vittoria was defending the rights of the American Indians or the Native Americans of the New World.
saying you don't have the right to just go in and enslave them, right? Because they have what he called dominion, a right over their own person and their possessions. And so he was saying to the Spaniards themselves, even though he was a Spaniard, you you can't just go in and enslave the Indians. And this is a very early development in, we could say the idea of modern human rights, I would say. So it has an earlier development, which is early modern.
and late medieval, would say, this idea of rights. And then it undergoes transformations of all kinds in the modern epoch. But I think Strauss is just plainly wrong there as a matter of historical record. I he just didn't read Vittoria and other people who do talk about rights. Hooker, to my knowledge, doesn't refer to the language of rights, natural rights. He's very Thomistic. So he talks about natural law.
as this binding law. of course, Locke very much talks about rights. And there you do have, and this is a distinction, Locke and Hooker, you do have that idea of the individual, my right to property, right? He talks about how in the state of nature, we can, by our labor, create what is ours, right? So that idea of property is very vital for Locke.
Alexander Rosenthal Pubul (52:03.137)
So they're not the same thinker by any means, although Hooker very much influenced one.
PJ Wehry (52:07.138)
No, no.
PJ Wehry (52:13.55)
So where does Locke get that idea from? Is that really from him or is he drawing from Vittorio and maybe not mentioning it because Vittorio is Roman Catholic?
Alexander Rosenthal Pubul (52:22.827)
Yeah, that's very good question. I'm inclined to think it might be that.
PJ Wehry (52:30.03)
Yeah, he's like, he's like, wow, this is really good, but we just won't say where it's from because I don't get in trouble. Yeah.
Alexander Rosenthal Pubul (52:38.723)
I don't 100 % know. So Suarez, for example, who was one of the big, I mean, he was before Descartes, one of the gigantic metaphysicians. And he was also a political thinker who talked a lot about these ideas, including the idea of the state of nature and other things. The odds that Locke was totally unfamiliar with those figures is, I would say, very low. So the natural rights discourse was in the air.
PJ Wehry (52:41.624)
Right.
Alexander Rosenthal Pubul (53:05.527)
But I would actually have to write another book to trace the lineage of Locke's actual language of natural rights because off the top of my head, I don't remember references, you know, like he has references to Hooker when he talks about consent and these other concepts, but I don't remember. He must have known, you know, because he's dialoguing with Filmer. There's zero chance he didn't know about Suarez and Bellarmine and these, you know, and.
PJ Wehry (53:09.966)
You
PJ Wehry (53:19.573)
Right, right.
PJ Wehry (53:33.708)
Right.
Alexander Rosenthal Pubul (53:34.573)
and these, right, because he's attacking Filmer's ideas, and Filmer's attacking those guys. So it's clear that he knew who they were, but there's no way that he would reference them as prominent authorities for his thing.
PJ Wehry (53:47.752)
Yes. Well, first of all, let me say thank you for writing this book because I think that's really helpful to have tracing it from Hooker to Locke. don't necessarily we can leave that to someone else. Maybe someone will listen to this episode and be like, I'm to write the one about Suarez to Locke, you know. But just to end. Besides buying and reading your excellent book, I really do appreciate it. There's a lot of hard work.
Alexander Rosenthal Pubul (54:04.544)
Hahaha!
PJ Wehry (54:18.508)
What would you recommend to someone who has listened to this whole episode? What's something you'd recommend that they think about or do over the next week?
Alexander Rosenthal Pubul (54:26.243)
Well, it's a great question. I think just delving into the history of ideas is just fascinating. And I think many people have, if they haven't studied the history of ideas, they have sort of pat answers. I mentioned like the enlightenment idea that everyone was living under clerical authoritarianism until the enlightenment came and liberate as, there's a much more interesting and complex.
story. So I think delving into the history of ideas and actually reading primary sources, right? So I probably, if I hadn't just, when you're just fed what Locke was about, he comes across as a very different figure. When you read him in, and when you read his actual sources, when you read him in context, you know that there were other Whig thinkers like James Tyrell and Algernon Sidney who were writing along similar lines.
PJ Wehry (55:02.562)
Yes.
Alexander Rosenthal Pubul (55:22.197)
It creates a totally different impression and much deeper and richer impression of these thinkers who are canonical. I Locke is really, mean, the Declaration of Independence, the preamble is a distillation of Locke's two treatises, I would say. And so that just the richness of the interaction between ideas and history, I think, is something that people who are even educated laymen would benefit from.
PJ Wehry (55:50.902)
Absolutely, Dr. Rosenthal Pueble. It's been an absolute joy having you on. Thank you so much.
Alexander Rosenthal Pubul (55:56.846)
Well, thank you so much. It was a pleasure for me as well, PJ, and I hope to see you again, see your podcasts and so forth going forward.