John Kilcullen
(This is a draft of an essay published in Gerald F. Gaus and Chandran Kukathas (eds.), Handbook of Political Theory, Sage publications 2004.)
Every intellectual discipline constructs and reconstructs its own history, as writings not previously regarded as important get into reading lists and others fall out. Until recently students of political theory were urged to read Plato and Aristotle, and then Hobbes and Locke, but nothing, or very little, between the Greeks and the early moderns. Those who have ventured into this gap have found that, at least from the thirteenth century, there was a good deal of political theory, with clear links with the theories of the seventeenth century. The seventeenth-century writers are better understood if we are also familiar with the work of their predecessors, who are in any case as much worth reading as they are. An interesting task for historians of political theory, and for political theorists, is to integrate the study of medieval thought into the discipline.
As with many of the seventeenth-century classics, the medieval contributions to political theory were works 'of occasion'. They were produced by academics for academically trained readers, but their authors did not produce them as part of their teaching duties. They were written in an attempt to intervene in the public affairs of the time, especially in controversies within the Church and between churchmen and lay rulers. Given the relatively slow reproduction of manuscripts before the introduction of printing, these writings probably had little impact on the public events that prompted them (except perhaps so far as their arguments circulated orally), but they were collected and studied by university-educated professionals in law and government, ecclesiastical and secular, and over time they occupied the libraries and the minds of institutions and individuals likely to be involved in similar events in the future.[Note 1] Some of these medieval writings were printed in the early days of printing, and in the 17th century there were several major printed collections (notably Goldast, Dupuy). Protestants as well as Catholics read these works (Goldast was a Protestant), and they exercised an influence throughout Europe.[Note 2] The parallels between, for example, Hobbes and Marsilius, and Locke and Ockham, are striking.
One of the main tasks set itself by the reformed papacy of the eleventh century was to free Church offices from the control of the aristocratic families who also held military and political power, and beyond that to make Christianity the effective conscience of rulers. This was indeed a 'papal revolution', and it led to a 'crisis of Church and State' that lasted into modern times.[Note 3] Its early stage is called the 'Investiture Contest', which included Pope Gregory VII's deposition of the Emperor Henry IV. During the thirteenth century there were conflicts between popes and emperors, including Pope Innocent IV's deposition of the Emperor Frederick II. There were disagreements over the constitution of the empire --- whether election by the electoral princes gave the emperor-elect his power, or did this require approval by the pope? --- and over the relationship between the Empire and the Kingdoms of France, England and Spain. The increasing wealth of the church attracted careerists, and also provoked critics who advocated a return to the poverty of the Apostles. The rise of the mendicant orders, especially the Franciscans, prompted controversy about poverty as a religious ideal, which led to works about property, which are among the sources of seventeenth-century theories of property.[Note 4] The support the popes gave to the mendicant orders provoked opposition from bishops and parish clergy, which led to controversy about the powers of the pope within the church.[Note 5] There were disputes between Church authorities and secular rulers about whether the clergy should be exempt from taxation and from the ordinary criminal courts, and whether money collected by the local churches should be used by the papacy to finance not only crusades against the Saracens but also military campaigns in Europe. A number of these disputes moved toward a climax in the late thirteenth century, when studies in philosophy, law, and theology were at a high level of activity in the universities. From near the end of the thirteenth century until the middle of the fourteenth there was a complicated and connected series of debates involving Pope Boniface VIII, King Phillip the Fair of France, Pope John XXII, the 'Roman Emperor' Ludwig of Bavaria, the Franciscan order and the University of Paris, in the course of which theologians produced many treatises concerning the relationship between religion and secular government, the constitution of the Church, and the constitution of secular government, drawing on the resources not only of theology but also of the law and of Aristotelian philosophy. The writings produced during this period became relevant again at the end of the century with the 'Great Schism' (1378-1417), which prompted the 'conciliar' movement. The Council of Constance resolved the schism by removing three rival popes and appointing another.[Note 6]
Since the nineteenth-century revival of interest in medieval intellectual history, all these matters have been closely studied. Libraries have been searched for manuscripts and new editions have been made, many important writings have been translated from Latin, interpretative studies have been produced in many languages. There is not enough room to survey in this essay more than part of the field. I will concentrate on what I see as a central theme, the relationship between religion and secular government, restricting myself to the crucial period between Thomas Aquinas and William of Ockham.[Note 7]
In the classical world there was no separation between religion and politics. Aristotle included religion among the functions of a state;[Note 8] the Roman Emperor was called by the religious title 'Pontifex' (a title later assumed by the pope), and the Roman law attributed religious powers to the state.[Note 9] But during the early middle ages in western Europe a separation developed between Church and State, or --- in the language of the time --- between priesthood and kingship. The classic expression of this separation was in a letter sent in 494 by Pope Gelasius I to the emperor Anastasius: 'Two there are, august emperor, by which this world is chiefly ruled, the sacred authority of the priesthood and the royal power. Of these the responsibility of the priests is more weighty, in so far as they will answer for the kings of men themselves at the divine judgment... [I]n the order of religion... you ought to submit yourselves [to priests] rather than rule... [T]he bishops themselves... obey your law so far as the sphere of public order is concerned'.[Note 10] This document was later incorporated (in part and in association with material from Pope Gregory VII) into Gratian's Decretum[Note 11] as the canon Duo sunt.[Note 12] The separation of powers may have developed in fact simply because the earliest exponents of the Christian religion did not possess political power. However, another canon, Cum ad verum (also based on a letter of Gelasius, as quoted by Pope Nicholas I), suggested deeper reasons for it, namely that mutual limitation of their powers would restrain the pride of priest and emperor, and that those on God's service (the clergy) should be kept free of worldly entanglements.[Note 13]
From these and other passages handed down by Gratian, medieval lawyers and theologians arrived at a view of their world as containing two orders of power, the priesthood culminating in the pope, and the lay government culminating in king or emperor. These two kinds of power were unequal in dignity, the spiritual being superior. Although they were separate, there was no 'wall of separation'.[Note 14] They were expected to cooperate with one another. In particular, the temporal power was required by the spiritual, on pain of spiritual sanctions (excommunication, interdict, etc.), to support its spiritual authority, for example by eradicating heresy. From time to time kings or emperors acted to reform and purify the Church. At the time it was not assumed that in one territory there would be just one agency with a monopoly of the legitimate use of force (an idea first proposed by Marsilius). It was tacitly assumed that the Church had an inherent right to coerce --- in fact, some theologians, perhaps under the influence of the Aristotelian idea of a 'perfect' (i.e. self-sufficient) society, explicitly held that the Church, being self-sufficient, could coerce its members; thus a cleric might be imprisoned as a punishment by his bishop, without needing the permission of the secular ruler. It was thought that the clergy should not engage in any cruel coercion, 'judgments of blood', but it was not thought that the influence of severe punishment could always be dispensed with. Hence the requirement of aid from the secular ruler, who would use methods of coercion which the clergy could not use. Gratian quotes Isidore of Seville, according to whom princely power exists within the Church 'so that what priests are not strong enough to effect by word of teaching, this power might command by terror of discipline'.[Note 15] When John of Paris points out that with reference to heretics Paul said 'avoid', not 'burn', and suggests that beyond such spiritual penalties as avoidance the spiritual power cannot go,[Note 16] he is supposing that the spiritual power may well require the temporal power to go further.[Note 17]
Another key idea handed down by Gratian was that the pope enjoyed plenitudo potestatis, 'fullness of power'.[Note 18] This meant, not that the pope had every conceivable power, but that the pope was the source of all ecclesiastical jurisdiction, having authority to intervene directly in any matter anywhere within the Church; thus within a diocese the pope could do directly anything the local bishop could do. (As Giles of Rome explained (see below), a cause that can do directly whatever it can also do through secondary causes has 'fullness of power'.) By virtue of 'fullness of power' the thirteenth century popes insisted that the mendicants (Franciscans, Dominicans and others) should be permitted to preach and minister anywhere, with or without the support of the local bishop. The idea that the pope can exercise directly any of the powers that Christ has given to the Church does not infringe the principle of separation of spiritual and temporal power, as long as it is accepted that Christ did not give temporal power to the Church.
However, during the thirteenth century the papal claim to fullness of power came to be extended to temporal matters. Pope Innocent III wrote: 'Paul... writing to the Corinthians to explain the plenitude of power, said, "Know you not that we shall judge angels? How much more the things of this world?" Accordingly [the papacy] is accustomed to exercise the office of secular power sometimes and in some things by itself, sometimes and in some things through others'[Note 19] --- the 'others' being the kings and emperors. The popes were thinking of the Church as coextensive with the human community in Christian parts of the world, with the pope as its head on earth, the secular rulers being his agents in temporal matters and the clergy his agents in spiritual matters. The two powers, often referred to as the 'two swords', were generally said both to belong to the pope, though it was said that he had the 'exercise' of the spiritual sword only. He was said to entrust the exercise or 'administration' of the temporal sword to the secular ruler, while he kept its 'authority', meaning that the secular ruler used his sword 'at the command' (ad nutum) of the pope.[Note 20] The withholding from the pope of the exercise of the temporal sword signified some restriction upon papal intervention in secular affairs, namely that he could not act directly; but the claim that the temporal sword 'belonged to' the pope and that he had its 'authority' implied a power to give binding directions to the temporal ruler, leaving no autonomous sphere of temporal power.
The principle of Duo sunt, the separation of powers, was not simply abandoned. The popes presented their interventions in temporal matters as exceptional. Canon lawyers, including Pope Innocent IV himself in his capacity as lawyer commenting on the decretals, drew up lists of the exceptional circumstances in which the spiritual power might intervene in temporal affairs.[Note 21] The most comprehensive rubric for intervention was ratione peccati, 'by reason of sin': if a secular ruler's actions are unjust, then this is a sin against which the spiritual power may act. As the pro-papal writer Giles of Rome remarked,[Note 22] this rubric 'is so broad and ample that it may embrace all temporal disputes whatsoever'. It began to look as if very little, if any, sphere of autonomy was being left for the temporal power. This especially seemed so from the main line of argument underlying papal claims: The pope is Christ's vicar (place-holder, substitute) on earth, Christ is God, and God is lord of all; therefore the pope is lord of all.[Note 23]
The claim to ultimate papal supremacy will no doubt seem objectionable to the modern reader, but there are elements in it with which we should sympathize. We can agree, I assume, that everything governments do is subject to moral assessment --- there is no 'autonomous sphere' of government action exempt from moral assessment; and we can perhaps agree that citizens and others make their moral assessment of government and other social institutions by applying moral values or principles that are independent of government and popular opinion ('natural law'). We can also agree that there may be people whose opinion on moral matters is especially worth considering, either because they are factually well-informed or because they have thought much about ethical issues (and among these we may include the clergy, unless we think that Christianity is actually misleading); that such people should speak out when they believe government is doing wrong; that in extreme cases they might be justified in calling on people to reject a government, either by electing another, or by disobeying, or by rebellion. The popes went beyond all this, however, in claiming that their moral assessments of government should be accepted without dispute and acted on obediently.[Note 24] It was not supposed that in such matters papal judgments were infallible. Indeed, it was envisaged that a pope might fall into heresy or into serious and persistent sin, and in such cases the pope could be judged and deposed.[Note 25] But a pope still in the papal office must be obeyed, apparently without any possibility of objection or resistance --- the pope 'judges all and is judged by none'.[Note 26] There was in fact a good deal of resistance, but at the risk of excommunication or worse; perhaps the safest form of resistance was to accuse the pope of heresy, as Philip IV did Pope Boniface.
Toward the end of his life Ockham expressed the opinion that zeal for Christianity required that 'in these dangerous times' all the learned should investigate the basis and extent of papal power, because of the infinite evils that ignorance of it has brought about among Christians from ancient times.[Note 27] Ockham had been active in this investigation for some twenty years, and debate on the extent of papal power had already been in progress since the time of Boniface and earlier. In this essay it is not possible to do more than sketch the contributions of more than a few writers. Five must suffice: two of them, namely Thomas Aquinas and Giles of Rome, extended papal power to temporal matters; three, namely John of Paris, Marsilius of Padua and William of Ockham, opposed this extension.
Thomas Aquinas gives two significantly different accounts of the relationship between the two powers, though in both accounts the secular power is subjected to the spiritual. In an early writing, Scriptum super libros sententiarum, he asks, When two authorities conflict, how should we decide which to obey? He answers that if one authority originates totally from the other (as, he says, the authority of a bishop derives from the pope), greater obedience in all matters is due to the originating authority. If, however, both of the authorities in conflict originate from a higher authority, the higher authority will determine which of them takes precedence on which occasion. Spiritual and secular power, he says, both come from God, so we should obey the spiritual over the secular only in matters which God has specified, namely matters concerning the salvation of the soul; in civic matters we should obey the secular power --- 'unless', Thomas immediately adds, 'spiritual and secular power are joined in one person, as they are in the Pope, who by God's arrangement holds the apex of both spiritual and secular powers'.[Note 28] This seriously restricts the application of the doctrine of Duo sunt: at the lower levels the spiritual and temporal powers are held by different individuals, but at the highest level they are both held by the same man.
In another writing of uncertain date, De regno,[Note 29] Thomas applies Aristotle's teleological thinking to politics. A polity has an end, purpose or goal, which may be sought in a variety of ways, effectively or not, and it is a composite entity consisting of many individuals with their own individual purposes. For both reasons there is needed some directing or steering agency or government (gubernatio in Latin means literally 'steering', as of a ship) to guide the potentially conflicting individuals effectively to their common goal. The goal is in some way single --- otherwise the polity will disintegrate. Every being is in some way one; a composite entity has a unity of order, i.e. of direction to a single end. In preserving its being, therefore, the steering agency has to preserve the polity in peace and unity by ordering it to a common goal. There is a hierarchy of goals, that is, there are intermediate ends which are also means to higher ends. A polity exists to secure its citizens' lives, but above living there is living well, i.e. virtuously, and above that there is living so as to attain the 'beatific vision' of God (the Christian heaven). If all these ordered ends were attainable simply by human effort, the one supreme directing agency would be concerned with them all; however, to attain the beatific vision requires 'grace', i.e. God's special help, which natural human activity cannot earn. God's Church is a human agency that God has established as a means to grace, especially through the sacraments. Hence there is a distinction between secular government using naturally available means to guide citizens to their final goal, and ecclesiastical government using supernatural means, the sacraments. This provides a theological rationale for the separation called for by Duo sunt: the distinction between the two powers is based upon a distinction between natural and supernatural means of attaining the goals of human existence. Secular government has the task of leading citizens toward the beatific vision, by way of the lower goals of securing the essentials of physical life and, above that, of virtuous living; but it cannot attain the highest goal, the beatific vision, because natural human means are not adequate. On this view also the secular power is subordinated to the spiritual. Secular rulers must be subject to the pope, 'for those to whom pertains the care of intermediate ends should be subject to him to whom pertains the care of the ultimate end'.[Note 30]
In his On Ecclesiastical Power (1302), Giles of Rome[Note 31] argues that all dominium (lordship), including ownership of property as well as governmental power or jurisdiction, belongs primarily to the Church, and in particular to the pope, though the 'busyness' (sollicitudo) of administering temporalities is allotted to the laity, so as to leave the clergy free for spiritual matters. To establish the primary lordship of the pope Giles gives many arguments. The following are the more significant:
(1) Whether bodily health is served by bodily goods does not depend on whether they are lawfully possessed, but spiritual health does depend upon whether bodily goods are lawfully possessed. Hence the bodily physician has no concern with rightful possession, and hence does not have lordship over his patient's bodily goods, but the spiritual physician does have. The spiritual physician has such power over temporal goods that he must be called their lord. 'For he who judges a thing is always lord of the thing judged.'[Note 32]
(2) According to Augustine, De civitate dei IV.4,[Note 33] without justice, kingdoms and empires are great bands of robbers, and in De civitate dei II.21[Note 34] Augustine says that there is no true justice except in the commonwealth whose founder and ruler is Christ. In De civitate dei XIX.21[Note 35] Augustine argues that the commonwealth of the Romans was not a true commonwealth because it did not attain true justice, since the Romans did not worship the true God.[Note 36] Similarly, Giles maintains that non-Christians cannot justly have lordship: 'Since you are unjustly withdrawn from Christ your Lord, everything is justly withdrawn from your own lordship'.[Note 37] As far as just and worthy possession is concerned, then, lordship is conferred by membership of the Church, which (Giles assumes) implies that the Church has pre-eminent lordship.[Note 38]
(3) The Church has power to excommunicate. But possessions are held by virtue of laws which rest upon pact, which rests upon the communion of men with one another. If the Church can cause a man to be excluded from the community of the faithful --- and Giles supposes that there is no genuine community of men apart from the community of the faithful --- then she can cause him to be deprived of the foundation upon which all legal transactions are grounded, and he will not be able to claim lordship over anything.[Note 39]
In the last part of his book Giles undertakes to answer objections. Christ says, 'Render to Caesar the things that are Caesar's and to God the things that are God's' (Matthew 22.21), implying that some things are Caesar's. Giles answers that just as God normally leaves things to take their own course under the 'common law' (i.e. the ordinary laws of physics), although he has power to intervene by miracle at any time, so the pope normally allows secular lords to act under the common laws, although he has the power to intervene directly at any time by virtue of his 'fullness of power'. A cause that can do directly whatever it can also do through secondary causes has 'fulness of power'.[Note 40] The pope has fullness of power in the sense that he can do directly anything that can be done by any agency within the Church;[Note 41] this includes secular government, because, as the arguments above have shown, outside the Church there can be no lordship.[Note 42] However, just as God normally allows secondary causes to take their course and only occasionally intervenes directly (i.e. miraculously), so the pope normally leaves secular government to laymen.[Note 43] Thus, even if ultimate temporal authority belongs to the pope, a dualism of a sort is still possible: the pope may relate to secular government in the same way as in modern times a state (provincial or national) government relates to city government, normally leaving city affairs to the lower level of government, but being able to intervene with full constitutional right when it sees fit.
On Royal and Papal Power (1302) by John of Paris[Note 44] is also concerned with lordship. John denies that the pope is the supreme lord on earth in both spirituals and temporals. He rejects the argument that since the pope is Christ's vicar, and Christ is God, and God is lord of all, therefore the pope is lord of all.[Note 45] According to John, this argument breaks down twice: first, the pope is the vicar of Christ as man (not as God), and Christ as man was not lord of all; second, even if Christ as man had been lord of all, Christ did not give all of his own powers to his vicar --- in particular there is no evidence that he gave him universal dominium on earth.[Note 46] God is supreme lord in both spirituals and temporals, but on earth there is no individual who is God's vicar in both at once. The secular ruler is God's vicar in temporals, and the pope is Christ's vicar in spirituals.
John reasserts the long-standing distinction between the two senses of dominium that Giles had run together, namely ownership of property and jurisdiction; a ruler's jurisdiction in property disputes does not mean that he has superior ownership over his subjects' property.[Note 47] John argues that the pope has jurisdiction in spiritual matters but does not have ownership even of Church property, let alone of the property of laymen. Property is in the first instance acquired by individuals,[Note 48] not by communities; a community acquires its property by donations from individuals, who make their gifts to the community, not to its officers as individuals, and the donors' intentions must be respected. Church property belongs to some religious community (a monastery, the diocese, the Church as a whole, etc.), and the head of such a community is only an administrator, not an owner.[Note 49] He ought not manage property negligently or corruptly, and if he does he can be deposed. In emergencies the pope may call on individuals and communities to supply resources to assist the common good,[Note 50] and the prince may do likewise.[Note 51] The power to do this does not constitute ownership of their subject's things.
As for dominium in the sense of jurisdiction, John argues (1) that among Christians the spiritual and temporal powers should be physically distinct, and (2) that the temporal power does not owe its existence to the spiritual power. (1) On the first point, he says that among Christians the temporal and spiritual jurisdictions should be distinct subiecto (i.e. distinct in the persons in whom they are located), which would mean that the pope cannot be both spiritual and temporal ruler. This is the traditional tenet of Duo sunt, and John gives the traditional reasons, emphasizing the argument that the priest should be exclusively devoted to spiritual affairs.[Note 52] In pre-Christian times there were priests, or persons with priestly functions, who also had temporal power, but under Christianity priests are exclusively priests.[Note 53] His opponents accepted that in respect of their exercise the spiritual and temporal powers are distinct subiecto, but said that the pope 'possesses' and 'has the authority of' the temporal sword, which must be exercised on his direction. Against this John argues that it would have been a notable lack of wisdom on God's part to have given the pope power he was permanently debarred from exercising.[Note 54] (2) On the second point, he says that the temporal power is not established by, or in any way caused by, the spiritual power; both come from God, but neither through the other. The spiritual is in some sense superior, but not as being the cause of the temporal power.[Note 55]
Thus there are separate spheres of jurisdiction, with prince superior to pope in temporal matters and pope to prince in spiritual matters. Both powers have been established by a higher power, God, who has appointed their limits.[Note 56] How are their limits to be understood? The concerns of the two powers to some extent overlap. The temporal power is not merely corporeal,[Note 57] but exists to further virtuous living as the way to eternal beatitude, so far as this can be done by natural means; the spiritual power is concerned for the physical wellbeing, the survival at least, of the Christian community. Further, John accepts the principle stated in Gratian in a text from Isidore (see above), that sin should be physically punished in this world, which John expects to be done by the temporal power;[Note 58] he also holds that heretics should be compelled to return to the Church.[Note 59] The basis of the distinction between the two powers is not subject matter or ends, but means.[Note 60] Each power is limited to its own appropriate means of action. The secular ruler can use only temporal penalties (e.g. seizure of goods, corporeal punishment), and the Church must use only spiritual penalties (e.g. excommunication, interdict).
Indirectly prince and pope may coerce one other. If a pope does wrong spiritually, correction is primarily the business of the cardinals; if a prince does wrong temporally, correction is primarily the business of his barons or peers. The first step in correction is advice and exhortation, but coercive measures may follow, and the other power may intervene (perhaps at the request of cardinals or barons). John distinguishes various cases. If a prince does wrong in spirituals, the pope can use spiritual penalties (e.g. excommunication of those who obey the prince) to influence the people to depose him. If a pope does wrong in spirituals the prince can use temporal penalties (e.g. sequestration of goods of those who obey him) to induce the pope to resign or to induce the people to depose him. (Note that John supposes that the people can depose a pope.) If the prince is delinquent in temporals the barons can call on the Church to support them by spiritual penalties (e.g. excommunication) against those who continue to obey the prince. If the pope is delinquent in temporals, the Emperor can directly punish him (unless, as some say, he is exempt not only by privilege granted by the emperor but by divine law --- John does not decide this question). In each of these cases pope and prince use only their respective kinds of penalties, spiritual and temporal.[Note 61]
The coercion and deposition of a pope was a topical matter, since Philip's response to Boniface's apparent claim to temporal power was to propose a General Council to depose him. John implicitly supported this. Gratian had said that a pope cannot be judged 'unless he is found straying from the faith', i.e. had become a heretic. To heresy commentators had added other serious sins.[Note 62] John adds age, illness, insanity, uselessness and abuse of Church property as justifying deposition.[Note 63] But with Boniface heresy was the main issue. John asks, What if a pope were to introduce a 'new teaching' without proper discussion among the learned or a general council --- for example, what if the pope were to teach the heresy that it is heresy to deny that the king of France is subject in temporals to the pope? John answers that, if possible, papal teaching should be given a traditional, orthodox meaning, but if the pope insists on a new and injurious meaning and the Church is in danger, then the prince should resist by force and the Church should move to depose the heretic pope.[Note 64] 'The prince is permitted to withstand the abuse of the spiritual sword as best he may, even by the use of the material sword'.[Note 65] In deposing a pope the Church can be represented by the College of Cardinals, though a General Council would be better.[Note 66]
On Royal and Papal Power contains a section that lists and then refutes arguments for the temporal supremacy of the pope. John's list is very comprehensive, but we will look only at his discussion of some arguments used by Giles of Rome and Thomas Aquinas. One of Giles's recurrent themes is the superiority of the spiritual over the corporeal.[Note 67] John replies that it is not true that the royal power is corporeal and not spiritual and is in charge of bodies and not souls; its end is life according to virtue. Also, it is not true that every spiritual function as such has authority over every corporeal function as such: in a household the tutor does not appoint the physician, but both are appointed by the head of the household.[Note 68] Another of Giles's arguments was drawn from Augustine's City of God, to the effect that there cannot be a true republic except among Christians.[Note 69] John replies that natural moral virtue, including justice, can exist without supernatural faith, and that this is enough for true government, which is concerned with the good life so far as it can be lived by natural human power.[Note 70]
John's disagreement with Thomas Aquinas is of particular interest. Many passages in John's book are taken almost verbatim from Thomas Aquinas,[Note 71] and John has been regarded as a follower of Thomas. Yet he mounts an effective criticism against the argument Thomas used in De Regno to support papal lordship over temporals, namely the argument from the subordination of ends --- that 'those to whom pertains the care of intermediate ends should be subject to him to whom pertains the care of the ultimate end'.[Note 72] John offers a number of points in reply. The higher art uses the lower only in relation to its own end. It does guide, but not always with authority: in a household the physician guides the pharmacist but cannot give authoritative directions or dismiss the pharmacist, since they are both under the authority of the householder, and similarly both pope and prince derive their authority from God.[Note 73] The lower art may have something good or desirable in itself, and indeed life in accordance with naturally acquired virtue is something good in itself. Finally, the lower end may be related to the higher in more than one way (e.g. a tyrant's oppression may also lead people to God), so the higher art cannot uniquely direct the lower.[Note 74]
Marsilius wrote his Defensor Pacis (1324)[Note 75] to counter a cause of strife that Aristotle had not included in his discussion of revolutions (Politics, V) because it arose long after his time, namely a 'certain perverted opinion' among Christians.[Note 76] Marsilius is in no hurry to tell us what that revolutionary opinion is, but eventually it transpires that it is the doctrine that the pope has fullness of power.[Note 77] An explicit attack on this doctrine occupies II.xxiii-xxvi, after the ground has been well prepared. All coercive power comes from the people (the 'legislator') and is entrusted to a ruler who rules in accordance with the law established by the people or by a subordinate legislator authorized by the people.[Note 78] No community can have more than one supreme ruler, who must be the source of all coercive power in the community --- otherwise strife will break out.[Note 79] This is the first of the four main points of Marsilius's argument against papal fullness of power: unless the pope is the supreme ruler,[Note 80] pope and clergy can have coercive power only if they derive it from the supreme ruler. The second point is theological: that Christ excluded the clergy from the exercise of coercive rulership.[Note 81] This rules out the possibility that the pope or any cleric might be the supreme ruler. The third main point is also theological, a rejection of the view of Isidore and most churchmen, that the ruler must punish sin. According to Marsilius God wills that divine law should be enforced by sanctions only in the next world, to give every opportunity for repentance.[Note 82] Marsilius does not advocate toleration: for secular ends the secular ruler may enforce religious uniformity; that is, he may enforce the divine law, but not the divine law as such.[Note 83] So there is only one supreme ruler, not a member of the clergy, who does not enforce divine law as such and therefore does not coerce in any sense on behalf of the clergy. Fourth, Christ gave Peter no special authority among the apostles, and Peter never was in Rome.[Note 84] The Roman bishop therefore has no special Christ-appointed role in shepherding the whole Church. From these four points it follows that the doctrine of papal fullness of power is false in all its senses; in particular, the claim that the pope has supreme coercive jurisdiction over all secular rulers is false --- the pope and the clergy have no coercive jurisdiction at all, direct or indirect. As for ownership of property, Marsilius sides with the Franciscans against Pope John XXII's thesis that no one can use consumable property without ownership, and argues that, in accordance with Christ's will, the pope and the clergy should all live in poverty like the Franciscans.[Note 85] On his view, then, the clergy should have no lordship at all, either in the sense of coercive jurisdiction or in the sense of ownership of property. In the management of the externals of Church life, Marsilius argues that the only source of coercive authority is the secular ruler (if he is a Christian), who decides how many churches and clergy there will be, distributes church jurisdictions, makes or approves appointments, and enforces canon law,[Note 86] and only he can authorize excommunication.[Note 87] The only sources of doctrinal authority in the Church are the Bible and general councils (he argues that general councils are infallible);[Note 88] however, only the ruler can assemble a council, and its decisions can be enforced only by the secular ruler.[Note 89]
Marsilius does not deny the truth of Christianity, does not deny that Christ gave spiritual powers to the clergy,[Note 90] and does not deny that the clergy are the expert judges and teachers of Christian doctrine. What he denies is that Christ gave the clergy any coercive power and that Christ gave the pope any special power not possessed by other priests. Marsilius does not advocate the separation of Church and State, but (once the people have become Christians) something more like subordination of Church to State; more exactly, he maintains that coercion in Church life is then exclusively the business of the secular ruler. Marsilius gives different accounts of the relationship between Christian communities and secular government before and after the conversion of the peoples.[Note 91] Before conversion the Church managed the externals of Church life autonomously, but afterwards its affairs are regulated by 'the faithful human legislator which lacks a superior' or by the ruler authorized by the legislator.[Note 92] After conversion the community and the Church are one, the 'legislator' has become 'the faithful legislator' and the ruler authorized by the faithful legislator has become the source of all enforcement within the Church.[Note 93]
Ockham[Note 94] disagreed with Marsilius at many points, though he seems to have taken over from him the idea that the doctrine of fullness of power (or a certain version of it) was the root of much of the trouble in the Church. Ockham's earliest political writing was the Work of Ninety Days (c. 1332), in which he defends the Franciscan theory of voluntary poverty as a religious ideal against Pope John XXII's thesis that no one can justly consume without owning. Part I of his Dialogus (c. 1334) discusses heresy and heretics, suggesting that to show that someone is a heretic it is not enough to show that what that person believes is heresy, it is necessary also to show that he or she believes it 'pertinaciously', and to show this it is necessary to enter into discussion to discover whether the person is ready to abandon the error when it is shown to be such. On the other hand, a pope who tries to impose a false doctrine on others is known to be pertinacious precisely from the fact that he is trying to impose false doctrine on others, and a pope who becomes a heretic automatically ceases to be pope. Thus ordinary Christians (or a pope arguing as a theologian and not purporting to exercise papal authority) can argue for a heresy in discussion as long as they make no attempt to impose it on others, whereas a pope who tries to impose a heresy ceases to be pope and loses all authority. This is an argument for freedom of discussion within the Church (though not for toleration in general).[Note 95]
In his Contra Benedictum (c. 1335) Ockham began his preoccupation with the Marsilian theme of fullness of power, which he continued in other works written in the later part of his life. Ockham rejects two versions of the doctrine of fullness of power. He denies that the pope has power from Christ to do whatever is not contrary to divine or natural law: against this he argues that a pope must respect not only rights and liberties under natural law, but also rights and liberties existing under human law, including those conferred on rulers by the law of nations and the civil law and custom, and that he must refrain from imposing excessive burdens.[Note 96] He also rejects a weaker version of the doctrine of fullness of power, according to which the pope has all power necessary to secure the good government of the Christian people. Against this he maintains that securing good government in temporal matters is the concern of the laity, not of the clergy.[Note 97] However, there is some sense in which Ockham agrees that the pope has fullness of power: in spiritual matters (i.e. matters relating to eternal salvation and peculiar to the Christian religion) that are of necessity (not just useful), the pope regularly has full authority over believers (not unbelievers); in temporal matters he regularly has no authority, but on occasion, in a situation of necessity, the pope may do, even in temporal matters, whatever is necessary if it is not being done by whoever is normally responsible to do it.[Note 98]
If Marsilius was the first exponent of the doctrine, later held by many others, notably Hobbes, that in any well-ordered community there must be a single locus of coercive power, Ockham was its first opponent. Ockham argues, as Locke would argue later, that if the community were subjected to one supreme judge in every case, then the supreme judge could do wrong with impunity. To prevent tyranny, it must on occasion be possible for the regularly supreme judge to be coerced by others. At the same time, it does no harm if there are some (for example pope and clergy, or cities or princes) who are regularly exempt from the jurisdiction of the supreme judge provided they can be coerced on occasion, and it does no harm if there are some who have coercive power they have not received from the supreme judge --- again, provided they can be coerced when they do wrong. To prevent tyranny some plurality of centres of power is needed, and how exactly those centres relate to one another does not matter provided no one can do wrong with impunity. On various occasions, each of pope and prince may become subject to one another 'by reason of wrongdoing', and in this way the pope might even become subject to the jurisdiction of a non-Christian emperor.[Note 99] An emperor coercing a pope for temporal wrongdoing would be exercising his ordinary power, whereas a pope coercing an emperor for temporal wrongdoing would be acting extraordinarily.[Note 100]
In his political writings Ockham makes much use of the theory of natural law,[Note 101] which originated in ancient philosophy[Note 102] and had been taken up again by medieval theologians and lawyers. The essential idea of the theory, as Thomas Aquinas and Ockham hold it, is that the human mind, reflecting on and analysing human experience, can 'see' the truth of various fundamental moral norms, which are thus 'self-evident', not in need of proof, and too fundamental to be capable of proof.[Note 103] Ockham distinguishes several kinds of natural law,[Note 104] including natural laws 'on supposition': given certain contingent facts, natural reason sees intuitively that certain kinds of action are on that supposition morally right or wrong. Given the consequences of the Original Sin, human communities have a natural right[Note 105] to establish institutions of government and property; given the establishment of those institutions, individuals have a natural right to acquire property (or to live without property, relying on the generosity of those who have property); given that some thing has become some person's property, others have a natural duty not to use the thing without that person's permission; and so on. The Christian community's right to depose a heretic pope and choose a replacement is, for Ockham, such a natural right, in the same category as the right of any 'people' to depose a tyrant and establish a just regime.[Note 106] 'Natural' rights belong to human beings as such, to pagans as well as to Christians; thus the powers of the pope and clergy are limited by lay rights that pre-exist Christianity.[Note 107]
There has been a tendency in Christian thought to say that after Adam's fall into sin, the human mind is too depraved to be capable of genuine moral insight --- indeed, that since the fall no human being can do anything but sin and can have no rights, without God's special grace.[Note 108] Ockham, Thomas Aquinas and the medieval Church strongly rejected this opinion and attributed to 'fallen' human nature, even apart from grace, the ability to distinguish right from wrong, to possess rights, and to direct human action to ends that are legitimate (though without grace it is impossible to attain the very highest end of 'beatitude'). This optimistic view of the moral capacities of even unregenerate nature is at the root of Ockham's contention that non-Christians are capable of genuine 'lordship' in both senses, i.e. of governmental power and of property rights. Later theologians inspired by this conception of natural rights defended the property and governmental rights of the natives of America against European aggressors, some of whom argued that unregenerate savages could have no rights.[Note 109] Luther and Calvin, despite their emphasis on the corruption of human nature by Original Sin, and despite their maxims sola scriptura and sola fide, still found a place for natural law.[Note 110] Hooker continued this natural law tradition, arguing (as Ockham and the concilarists had done) that natural reason can be a source of principles even in regard to Church polity.[Note 111]
Natural law was of course a leading political idea in the seventeenth and eighteenth centuries. Hobbes's egoism was a radical departure, but Locke was clearly in the medieval tradition. Hume's 'invented' natural laws were close to Ockham's natural laws 'on supposition'.[Note 112] There continued into the eighteenth century a common conception, derived from medieval writers, of natural reason, i.e. reason unaided by Christian revelation, as a source of fundamental ethical principles. According to Bayle, the natural light of reason must guide interpretation of revelation itself: if God seems to have commanded in the Bible anything clearly contrary to natural morality, then we must have misunderstood his command.[Note 113]
On the central question of the relationship between spiritual and temporal power, Thomas Aquinas endorsed papal claims to supremacy, Giles maintained that all legitimate power on earth belongs primarily to the pope, and Marsilius that all legitimate coercive power belongs to the secular ruler. John of Paris argued for a restriction of the spiritual power to spiritual methods of action, and of the temporal power to temporal methods of action, but allowed each to use its appropriate methods to achieve indirectly some effects in the other's sphere. Ockham argued that the pope has fullness of power in spiritual matters and may on occasion intervene in temporal affairs, but only in situations of necessity when the laity will not or cannot act. James of Viterbo argued a position like that of Giles;[Note 114] so did Augustine of Ancona.[Note 115] John Wyclif continued Giles's argument that lordship cannot belong to unbelievers, or, as Wyclif argued, to anyone in sin.[Note 116] Several short works akin to John of Paris, On Royal and Papal Power, were produced at about the same time.[Note 117] There were other contributors to the debate whose works are not available in English.[Note 118] No medieval writer, as far as I know, argued that secular power should as a matter of principle not be used to benefit true religion and discourage religious error. To my knowledge the first persuasive argument[Note 119] for such a degree of separation of the two powers was Bayle's in the Philosophical Commentary.
It may seem remarkable that such active and free-ranging debate should have taken place during the middle ages on such a central topic of religious belief as the role of the religious head. Why did not piety and faith repress discussion and demand unquestioned deference to God's representative on earth? The theologians who debated the power of the pope sometimes felt called on to justify debating the topic; both John of Paris[Note 120] and William of Ockham[Note 121] offered justifications, but so did one of the strongest advocates of papal power, Augustine of Ancona.[Note 122] Justification was easy enough, because it was already the established tradition in the medieval universities to allow, indeed encourage and require, students and academics to debate both sides of every question from the existence of God and the creation of the universe to the details of grammar. Even heretical opinions were supposed to be presented in university debate, though they were not supposed to win. Ockham also did not want heresy to win --- in fact his 'political writings' are a campaign against papal heresy. But his discussion of 'heresy and heretics', making the point that one can maintain an heretical opinion without being a heretic as long as one remains open to correction and does not try to impose one's opinion on others, made it easier to argue freely.
Medieval academic debate was more formal than we are accustomed to, and the conventions required that a teacher state and explicitly answer a fair number of arguments, as strong as possible, for the thesis the teacher wanted to reject. This formal dialectical style is exemplified by most medieval writings on political theory.[Note 123] The literature of Christianity, for example the works of Augustine, already embodied a tradition of theological questioning, a continuation of the philosophical and literary culture of the ancient world. In the medieval universities this was strongly reinforced by the study of logic and the practice of formal dialectical discussion, and by the example and precept of Aristotle: 'For those who wish to get clear of difficulties it is advantageous to discuss the difficulties well; for... it is not possible to untie a knot of which one does not know... Hence one should have surveyed all the difficulties beforehand... Further, he who has heard all the contending arguments, as if they were the parties to a case, must be in a better position to judge'.[Note 124] Aristotle here follows Plato and Socrates. The medieval universities handed down to modern times the Socratic tradition of free discussion of important and sensitive topics. Although political theory was not an ordinary subject of instruction, the involvement of university people in writing on political questions for a university-educated readership carried into politics the academic practice of free argument on both sides of fundamental questions.
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Note 1. On the dissemination of political writings and the social position of people interested in them, see Miethke, 1980; Oui, 1979; Miethke, 2000b.
Note 2. See Oakley, 1962, 1969, 1996.
Note 3. See Berman, 1983, Tierney, 1980.
Note 4. See Lambertini, 2000; Kilcullen, 2001b.
Note 6. On the conciliar movement see Tierney, 1998, Black 1979, and Burns and Izbicki, 1997. Part of the text of the decree of deposition, Haec sancta, is translated at http://www.fordham.edu/halsall/source/constance1.html. On the reconciliation of this decree with later orthodoxy see Tierney, 1998: xxii-xxvii. It would be a nice irony if the decree on which the succession of modern popes depends were heretical.
Note 7. For a comprehensive account of the findings of recent scholarship, including work not in English, the reader should consult Miethke, 2000a. My essay covers a selection of the topics and authors covered by Miethke's book, to which I refer readers for historical and bibliographical information and analysis of argument. They should also consult the introductions to the translations cited, and Dyson 2003. For treatment of my topic by the canon lawyers see Watt, 1988, and Muldoon, 1971. For a comprehensive history of medieval political thought see Burns, 1988. On medieval ideas of the corporation see Tierney, 1998 and 1982. Certain areas of medieval political thought not previously much explored are investigated in Blythe, 1992, and Kempshall, 1999.
Note 8. Aristotle, Politics, VII.8, 1328b 4-15.
Note 10. Translated Tierney, 1980: 13-14.
Note 11. Gratian's Decretum (c. 1140) was an anthology of extracts from writings of popes, bishops and theologians of late antiquity and the earlier middle ages arranged and connected with commentary by Gratian himself. It became the textbook used in schools of canon law. For a specimen in translation see Thompson and Gordley, 1993. In 1234 Pope Gregory IX issued a book of Decretals, which was also received as a text book by the canon law schools. Other collections of decretals were added later.
Note 12. Dist. 96, c. 10, Friedberg, 1879: I, 340; translated Tierney, 1980: 13-14. (During the middle ages documents were often referred to by their opening words.)
Note 13. Dist. 96., c. 6, Friedberg, 1879: I, 339; translated Tierney, 1980: 14-15. On the materials from Gelasius in the Decretum see Watt, 1965: 12-33.
Note 14. The phrase seems to have been used first by Hooker, who rejected the idea. See Hooker, 1989: 131.
Note 15. C. 23, q. 5, c. 20, Principes; Friedberg, 1879: I, 936.
Note 16. John of Paris, 1971: 161.
Note 17. John of Paris, 1971: 143. In practice the wielders of the material sword seem to have kept control. See Watt, 1988: 387-99 on practice in England and France.
Note 18. C. 3, q. 6, c. 8, Friedberg, I, 739. See RiviËre, 1925.
Note 19. Per venerabilem, Decretales 4.17.13, Friedberg, II, 714f; translated Tierney, 1980: 138 (emphasis added). Compare the document Eger cui levia, attributed (doubtfully) to Innocent IV, Tierney, 1980: 147.
Note 20. Tierney, 1980: 93-4, 120-4.
Note 21. Tierney, 1980: 153-4. Cf. Watt, 1965: 68-9.
Note 22. Giles of Rome, 1986: 167-8.
Note 23. See, for example, the passage from Innocent IV in Watt, 1965: 66-7.
Note 24. 'If the pope decided that the exercise of his plenitudo potestatis was called for, his judgment should be accepted unquestioningly and obeyed implicitly because he was the vicar of Christ' (Watt, 1965: 133).
Note 25. Gratian, Decretum, dist. 40, c. 6; Tierney, 1980: 124-6.
Note 26. Cf. Hugh of St Victor, Tierney, 1980: 94-5.
Note 27. William of Ockham, 1998: 136.
Note 28. The relevant passage of the Scriptum is translated in Phelan and Eschmann, 1978: 106-7.
Note 29. For differing views on date and circumstances of composition, see Eschmann, 1949, and Dondaine, 1979.
Note 30. Thomas Aquinas, 1949: 3-13, 58-67. Eschmann points out the difference between the theory of the Scriptum and that of De Regno; Eschmann, 1958: 178-9. He seems to suspect the text of De regno. I would be inclined to suspect the authenticity of the final comment of the Scriptum ('nisi forte potestati spirituali etiam saecularis potestas coniungatur, sicut in papa...'), but according to Fr Bataillon of the Leonine edition it is well-attested in the manuscript tradition.
Note 31. On his life and other writings, see Lambertini, 2001.
Note 32. Giles of Rome, 1986: 86, 87;Giles of Rome, 1986: 97-8.
Note 33. Augustine, 1998: 147.
Note 35. Augustine, 1998: 950-2.
Note 36. Augustine uses this as an argumentum ad hominem. He says elsewhere that 'according to a more practicable definition' the Romans had 'a commonwealth of a sort' (Augustine, 1998: 80; cf. Augustine, 1998: 960). Augustine was not a 'black and white' thinker. Perhaps under the influence of neo-Platonism with its many-leveled universe, he was ready to recognize many levels of virtue, of peace, of happiness, etc., and corresponding degrees of perfection in commonwealths. The earthly state has a value of its own, and members of the two mystical cities belong to it intermingled.
Note 37. Giles of Rome, 1986: 69; cf.Giles of Rome, 1986: 92.
Note 38. Giles of Rome, 1986: 65-95.
Note 39. Giles of Rome, 1986: 98-102.
Note 40. Giles of Rome, 1986: 187-8
Note 41. Giles of Rome, 1986: 188.
Note 42. The doctrine that only believers can have lordship was supported by some writers, including Pope Innocent IV in the (possibly inauthentic) decretal Eger cui levia (Tierney, 1980: 148), and opposed by others, including Innocent IV again (Tierney, 1980: 155) and Ockham (William of Ockham, 1992: 86-7). Later Wyclif claimed that only those 'in grace' can have lordship, and that everything others do is sinful (McGrade, Kilcullen and Kempshall, 2001: 587ff). The Council of Constance condemned Wyclif's doctrines.
Note 43. Giles of Rome, 1986: 189.
Note 44. See RiviËre, 1926, Leclercq, 1942, Watt, 1971, Tierney, 1998.
Note 45. John of Paris, 1971: 100.
Note 46. John of Paris, 1971: 106-110, 115-6. Ockham makes the same reply, William of Ockham, 1992: 66-7.
Note 47. John of Paris, 1971: 106. Contrast Giles of Rome: 'For he who judges a thing is always lord of the thing judged' (Giles of Rome, 1986: 86).
Note 48. The underlying assumption seems to be that an original act of appropriation cannot be done by a corporation but only by an individual. John's remarks on original appropriation (John of Paris, 1971: 103) have been interpreted by Janet Coleman as an anticipation of Locke (Coleman, 1983), and she has since traced John's appropriation theory to Thomas Aquinas's account of individuation: 'Hence John presents a theory of human acquisition that is natural and which, in effect, is the means by which men not only survive, but are individually who they are, as a consequence of their actions, while being essentially one species.' Coleman, 1991: 204-5. I do not find this interpretation persuasive. Aquinas does not hold that I became me by labouring to acquire other things. John does say that things are acquired 'by skill, labour and diligence', but he does not say by virtue of what rule this occurs --- by natural law, or by convention and human law. From other passages ( John of Paris, 1971: 154, 225-6) it is clear that he meant, by convention and human law. John accepted the theory common among medieval theologians that property is based not on natural law but on human conventions and laws made in view of the usefulness to humanity of the practice of appropriation, the theory later held by Hume and the Utilitarians (see Kilcullen, 2001b).
Note 49. These points were commonplace. See Leclercq, 1942: 134.
Note 50. John of Paris, 1971: 104.
Note 51. John of Paris, 1971: 210.
Note 52. John of Paris, 1971: 115-8. Hooker argues against the view that between Church and Commonwealth there must be a 'personal' separation, a separation 'in subsistence'. See Hooker, 1989: 129-131.
Note 53. John of Paris, 1971: 200. There are echoes here of the canon Cum ad verum (dist. 96, c. 6) and of canonist comment. See Tierney, 1980: 121-2.
Note 54. John of Paris, 1971: 123-6, 129.
Note 55. John of Paris, 1971: 93, 96, 192.
Note 56. John of Paris, 1971: 93.
Note 57. John of Paris, 1971: 182.
Note 58. John of Paris, 1971: 143.
Note 59. John of Paris, 1971: 204.
Note 60. This was also the basis of the distinction of powers for Thomas Aquinas: see above. But according to Thomas the pope is also at the apex of temporal power, whereas according to John the powers are distinct subjecto.
Note 61. John of Paris, 1971: 156-161.
Note 62. Tierney, 1980: 124-5.
Note 63. John of Paris, 1971: 101, 241.
Note 64. John of Paris, 1971: 231-4.
Note 65. John of Paris, 1971: 212.
Note 66. John of Paris, 1971: 241-3, 250.
Note 67. John of Paris, 1971: 133.
Note 68. John of Paris, 1971: 182-3.
Note 69. John of Paris, 1971: 135.
Note 70. John says that the acquired moral virtues can be 'perfect' without the theological virtues (Christian faith, hope and supernatural love of God), and that the theological virtues perfect the acquired moral virtues only by an accidental perfection. This language is contrary to that used by Thomas Aquinas (cf. Summa, 2-2, q. 23, a. 7; see Griesbach, 1959: 41), but perhaps there is agreement on the relevant point. Thomas says: 'If the particular good [to which the moral virtue is ordered] is a true good, for example the preservation of the commonwealth or the like, it will indeed be a true virtue' (though not a 'simply true' virtue) --- that is, a moral virtue, e.g. political justice, may be truly such though the person lacks Christian faith or is in sin.
Note 71. For John's sources see Leclercq, 1942: 31, 35-6. Griesbach, 1959, suggests that John often distorts the material he borrows from Thomas.
Note 72. Compare Thomas Aquinas, 1949: 62, with John of Paris, 1971: 134.
Note 73. Here John uses Thomas's argument from the Scriptum super libros sententiarum, except for Thomas's final remark, 'unless spiritual and secular power are joined in one person, as they are in the Pope' --- a union ruled out by John's argument that the temporal and spiritual jurisdictions should be distinct subiecto.
Note 74. John of Paris, 1971: 184-6; the subordination of arts is discussed in several other places, John of Paris, 1971: 93, 182, 201.
Note 75. On Marsilius see Gewirth, 1951-1956, Nederman, 1995, and Dyson, 2003.
Note 77. Marsilius, 1980: 361-2.
Note 78. Marsilius, 1980: 44-9, 61-3; note that the legislator's 'will' is not arbitrary, but informed by discussion of what furthers the common good. That political power comes from the people was a commonplace at the time. It does not imply any commitment to democracy. Marsilius's references to 'the weightier part' (Marsilius, 1980: 45) are reminiscent of the canon lawyers' phrase sanior pars (Tierney, 1982: 23). When Marsilius mentions 'election' he means simply choice, and he is not imagining that the choices of different individuals will all be given equal weight. When in Defensor minor Marsilius says that the correction of rulers pertains 'preferably to the workmen or craftsmen' (Marsilius, 1993: 6), he means in preference to priests.
Note 79. Marsilius, 1980: 80-6. To illustrate this point Marsilius asks what would happen if two mutually independent rulers called the same person to two different places at the same time --- an allusion to the dilemma of the French clergy when Pope Boniface and King Philip called them to separate meetings at the same time. This problem of being called to two places at once is mentioned by Ockham (William of Ockham, 1995: 325) and also by Hooker (Hooker, 1989: 152). Since there seems to be nothing as durable in philosophy as an example, this example is perhaps an index of Marsilian influence --- though since examples circulate easily, it may not indicate first-hand acquaintance.
Note 80. This possibility is envisaged in Ockham's version of a Marsilian theory, Octo quaestiones, III.i, answered in III.xii; William of Ockham, 1995: 305-7, 326-7. As Ockham acknowledges, there is no philosophical reason why spiritual and temporal power cannot be held by the one person --- the reason is theological. SeeWilliam of Ockham, 1974: 21-7.
Note 81. Marsilius, 1980: 113-140.
Note 82. Marsilius, 1980: 164. The contrast between 'this world' and 'the next world' was later the basis of Locke's main argument in his Letter of Toleration.
Note 83. Marsilius, 1980: 136, 175-9.
Note 84. Marsilius, 1980: 44-9. It was generally agreed that Christ had given all the Apostles the same power of holy orders, but most held that Christ had in addition given Peter supreme jurisdiction, so as to distribute jurisdictions to the other apostles, bishops and priests. Marsilius denies that Christ gave Peter this supreme jurisdiction. (Ockham defends the common opinion against Marsilius in 3.1 Dialogus 3, 4; William of Ockham 1995: 219-29, and William of Ockham, 2002.) In the controversy over the pope's intervention in favour of the mendicants (Congar, 1961) it seems to have been agreed on all sides that the other apostles were Peter's equal in the power of holy orders, though Peter had superior jurisdiction; see Tierney, 1982: 60-5. Cf. John of Paris, 1971: 119, 125, 147.
Note 85. Marsilius, 1980: 183-4, 196-215. See Tierney, 1997: 108-118.
Note 86. Marsilius, 1980: 65-6, 254-67.
Note 87. Marsilius, 1980: 147-52.
Note 88. Marsilius, 1980: 274-9. Ockham opposed Marsilius on this point, and argued that no part of the Church is infallible; see William of Ockham, 1995: 207-19, Kilcullen 1991.
Note 89. Marsilius, 1980: 287-98.
Note 90. Their 'essential' or 'inseparable' powers, in contrast to the 'non-essential'; Marsilius, 1980: 235-6, 239-40.
Note 91. Marsilius, 1980: 256-9, 263-4.
Note 92. Marsilius, 1980: 272-3.
Note 93. Hooker's theses in defence of Elizabeth's governorship of the Church (Hooker, 1989) are Marsilian --- namely, that when the people are Christians there is no 'personal separation' between Church and State, and that the secular ruler is then (in some sense) the head of the Church, with sole authority to call church assemblies and a veto over their legislation, with authority to appoint bishops and other officials, with exemption from excommunication. The Marsilian themes are balanced by the notion of an ecclesiastical 'law of nations', Hooker, 1989: 150-1, 156-7. But perhaps this is Marsilian too, since Hooker suggests that such law may need to be settled by a General Council (a 'peaceable and true consultation' of the Christian world, Hooker, 1989: 157). Hooker's acquaintance with Marsilius may have been at second hand, and there were many other influences on his thinking. See Piaia, 1977: 213-8. Marsilius' book had been translated (with alterations) to support Henry VIII's ecclesiastical supremacy; see Lockwood, 1991.
Note 94. See McGrade, 1974; Knysh, 1996.
Note 95. See McGrade, 1974: 47-77; McGrade, Kilcullen, and Kempshall, 2001: 484-95.
Note 96. William of Ockham, 1992: 23-4, 51-8. As Tierney points out (Tierney, 1997: 119-20), Ockham did not address the distinction between the subjective sense and other senses of 'right', but like many of his contemporaries he sometimes used the term in its subjective sense (the rights of a person), without confusion with other senses. John of Paris does not use the term, but he uses the concept ( John of Paris, 1971: 102, 213), also to say that the pope must respect the rights of laypeople.
Note 97. William of Ockham, 1974: 70-1
Note 98. William of Ockham, 1992: 62-3; Kilcullen, 1999: 313-4. Note the distinction between what is regularly or ordinarily true and what is true on occasion or extraordinarily. See Bayley, 1949.
Note 99. 'And before an unbelieving emperor a case of faith could be treated... insofar as it could touch upon morals and detract from the commonwealth and bring injury upon the common good or upon any person', William of Ockham, 1995: 330.
Note 100. William of Ockham, 1995: 310-31.
Note 101. This has sometimes been regarded as an inconsistency on Ockham's part, in the belief that his non-political writings advance a 'divine command' theory of morality. For a rejection of this interpretation see Kilcullen, 2001(a)
Note 102. It underlies Aristotle's discussion of slavery (Politics, I.6) and is explicit in the Roman law texts (e.g. Justinian, Institutes, 1.2.2: 'according to natural law, all men were originally born free'). Cicero gave clear expression to the idea of natural law, e.g. in Republic III.xxii.33.
Note 103. Thomas Aquinas, Summa, 1-2, q. 91, a. 3, and q. 94, a.2. (The argument in the latter text is not meant to prove laws of nature, but to order them.) For Ockham see the quotations in Kilcullen, 2001a. (According to Ockham some natural laws are not fundamental but derived; William of Ockham, 1995: 273-4.) The theory as held by Aquinas and Ockham is a species of what Sidgwick called 'intuitionism' (Sidgwick, 1930, Book 1, chapter 8, esp. 101).
Note 104. William of Ockham, 1995: 286-93.
Note 105. That is, a right implied by natural law. The concept of a right is not found in the work of Thomas Aquinas, but it was common in the works of other medieval lawyers and theologians. On the history of the notion of natural rights, see Tierney, 1997.
Note 106. In reaction against conciliarist parallels between Church and political society, Cajetan emphasised that the Church is not a 'free community' with the power to erect its own government, but is subject to Christ's commands; see Burns, 1991, Burns and Izbicki, 1997. Ockham also recognised that Christ's commands had established a papal monarchy, but nevertheless held that the Christian community could vary the constitution of the Church at least for a time, arguing that necessity and utility may make exceptions even to Christ's commands; see William of Ockham, 1995: 171-203, especially 181-90. The decree Haec sancta of the Council of Constance can be interpreted as relating to a situation of necessity.
Note 107. William of Ockham, 1992: 51-8. Not only natural rights but also rights under human positive law limit the pope's power (see above, note 96).
Note 108. See above, note 42. Hooker was opposed by Calvinists who, unlike Calvin himself, rejected the idea of natural law; see Kirby, 1999. Karl Barth also rejected natural law on theological grounds; see Barth, 1946.
Note 109. See Muldoon, 1966 and 1980.
Note 112. On the continuity of the tradition see Buckle, 1991. For references to laws of nature being 'invented', see Hume, 1975: 520, 543.
Note 113. Bayle, Philosophical Commentary, Part 1, chapter 1, 1708: 43-57.
Note 115. See McGrade, Kempshall and Kilcullen, 2001: 418-483.
Note 116. See McGrade, Kempshall and Kilcullen, 2001: 587-654.
Note 117. See Dyson, 1999a, 1999b. On the circumstances of these writings see Saenger, 1981.
Note 118. For these see Miethke, 2000a.
Note 119. The arguments of Locke's first Letter of Toleration were not strong enough to persuade those who needed persuading: it is not self-evident that the state exists to serve this-worldly purposes only. In his fourth letter Locke used arguments like Bayle's.
Note 120. John of Paris, 1971: 229-35.
Note 121. William of Ockham, 1992: 5-12.
Note 122. William of Ockham, 1992: 6, n. 10.
Note 123. The Medieval dialectical style survived into the seventeenth century in controversial writings not often read these days, for example in the controversies between Hobbes and Bramhall, Chillingworth and Knott, Locke and Proast, and in various works of Arnauld, Leibniz and Bayle.
Note 124. Aristotle, Metaphysics,
III.1, 995 a23 - b5.
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