Witte on John Milton and the Reformation of Rights and Liberties in England

John Witte Jr., Emory University School of Law, has just posted a number of earlier legal history papers on SSRN.  Among them is Prophets, Priests, and Kings of Liberty: John Milton and the Reformation of Rights and Liberties in England, which appeared in the Emory Law Journal, Vol. 57, p. 1528, 2008.  Here's the abstract:

John Milton

In the midst of the English Revolution, John Milton emerged as the most articulate and innovative advocate of religious rights and liberties. Milton, religious liberty was a God-given, God-directed natural right. Humanity has the image of God within, and therefore has the freedom to choose.

However, to use natural freedom, mankind needs supernatural direction. Milton took a radical step by arguing that Christ rendered the Mosaic law obsolete, arguing that instead Christians have the liberty to do their duties to God and neighbor, have the right to do what is good, and to imitate Christ in their daily lives.

In addition to removing the Mosaic moral law, Milton also attacked the Church of England, labeling the clergy lords of the religion and claiming the church had too many Catholic ties. Thus, Milton advocated five major reforms in the Church of England. First, Milton called for liberty of conscience, the dearest and most precious right. Second, supported one’s freedom to worship in community of one’s choosing. Third, the state should tolerate every peaceable church. Fourth, Milton advised a separation of church and state. Finally, Milton emphasized that there should be no established religion.

These reforms are based on Milton’s premise that family is the foundation of society. The domestic commonwealth is like the political commonwealth: it should be dissolved if it fails its fundamental purpose. For marriage, the fundamental purpose is both civil (reproduction) and religious (spiritual bond before God). If either of those purposes is frustrated, divorce is a remedy.

Milton also believed strongly in civil rights and liberties, including the right to democratic election, the right to petition, the right to associate, the right to a jury trial, and the right to an education. Milton also called for freedom of speech and press, claiming that censorship was self-defeating for the church, impractical, and harmful to both the author and the public. However, Milton still felt that blasphemous or treasonous statements should still be punished, even if they were not censored. Censorship is wrong to Milton because denies the nature of human judgment; truth comes from revelation, not from restriction.

Witte's other recently posted papers are here.