Posts Tagged ‘Aquinas’

The Medieval Christian Origins of Western Democracy: Part 2

July 19, 2008

In the first part of this essay discussing the medieval Christian contribution to the rise of democracy, I discussed how the medieval idea that political authority lay in the whole of the community, and that monarchs, as well as their subjects, were bound by the law, led to the establishment of constitutional checks on the power of the monarch. Some states went further, and established systems of government in which power was effectively exercised by an assembly, rather than the reigning monarch, such as medieval Novgorod, or attempted to abolish feudalism altogether and establish a republic ruled by the citizens in opposition to the aristocracy. European monarchs had ruled with the advice of assemblies of their lords since the early Middle Ages. In the thirteenth centuries these assemblies, particularly those in England and Spain, began to establish themselves as parliaments. Similar assemblies of the aristocracy, knights and representatives of the municipal elite from the towns were also held in France, Germany, Italy and the papal states as part of the system of government. Such assemblies received powerful philosophical and theological support from Thomas Aquinas and other political theorists, who considered that humans were equal in their essence, stated that laws should be directed towards the common good rather than the personal benefit of the individual ruler, and maintained that the people had the right to depose an unjust monarch.

In the second part of the essay, I will discuss how Aquinas considered that the people were also the source of law as they had produced the customs that governed European society. This view was part of Aquinas’ wider view that laws held their authority through the consent of the people. Although he considered monarchy to be the best form of government, Aquinas also considered that the best constitution was one that included elements of monarchy, aristocracy and democracy, and thus gave philosophical and theological support to the parliamentary assemblies that advised monarchs.

The political theories that resulted in the establishment of secular governmental assemblies also led to similar developments in ecclesiastical government with the emergence of the Conciliarist movement that attempted to establish a general, ecumenical council as the governing authority in the Church, with authority even over the pope. The authority of both political and ecclesiastical governmental assemblies were partly based on the notion of mandated authority, which had been developed by Canon lawyers to establish the legal and constitutional basis for the ability of one section of the church to make decisions on behalf of the wider community. This idea of delegated authority also supported the constitutional position of the feudal councils that advised monarchs, so that they gradually developed into parliamentary assemblies that had powers to check the king on behalf of the subjects.

Furthermore, Canon lawyers stressed that law was rational, and that Natural Law and Roman Law affected the whole of humanity and transcended national boundaries, thus producing a system of international law that allowed disputes between nations to be settled peacefully. The insistence that law must be fundamentally rational resulted in the British constitutional attitude that viewed any law that did not possess a basis in reason was invalid.

I will also discuss how, during the Peasants’ Revolt in England, the serfs argued against their social status partly on religious grounds. Finally, although the medieval states that were governed through parliamentary assemblies were certainly not democratic, as they reserved active political participation only to those members who were considered to be the best qualified, I will nevertheless discuss how they provided the basis for later constitutional developments that made these early governmental assemblies more democratic and allowed them to develop greater power to check the monarch and act as institutions of popular government.

Recognition in Medieval Law of People as Source of Popular, Customary Law

While Aquinas himself did not state whether either the people or their ruler was the source of law, he did recognise that people, rather than the authorities, were the source of the customary law operating during the Middle Ages. Customary law, however, was nevertheless rational in that human actions, like their speech, were the result of reason. Princes had the right to alter laws, but this had to correspond to the common good. Following the Roman legal theorist, Ulpian, Aquinas considered that new laws should possess evident utility. Aquinas argued that the law should correspond to custom as much as possible, as law lost its force when custom was removed. Medieval Canon law viewed customary law as ‘unconstituted postive law’, in contrast to the ‘constituted positive law’ promulgated by an authority such as a pope or monarcy. Unconstituted positive laws were the customs of a particular community, which were considered to derive their power from the implicit consent of the communities, which practised them. Other legal theorists, such as the Canon lawyer, Rufinus, considered that custom only had legal authority if it was recognised and permitted by the authorities, who had the power to alter it. 44 Thus law was considered to derive its power to a certain extent from the consent of the people who lived by it and who, in their day-to-day activities, produced new customs and legal procedures. In the 18th century conservative political theorists, such as Edmund Burke, emphasised the role of tradition in maintaining a nation’s culture and stability against the political turmoil and violence of radical constitutional change produced by the French revolution. In the 20th century libertarian economic theorists, such as Von Hayek, also stressed the immense importance of traditional political institutions in promoting social and economic stability.

Aquinas’ View that Best Constitution Included Elements of Monarchy, Aristocracy and Democracy, and that this Existed in Ancient Israel

Like Aristotle, Aquinas also considered in his Treatise on the Law that the best regime was a ‘well-combined constitution’, which included features of monarchy, aristocracy and democracy. 45 Such a regime combined unity, rare virtue, and popular consent. 46 Aquinas considered that this mixed constitution was found in ancient, noting that Moses governed Israel, according to Deuteronomy 1:15 through the chiefs of Israel’s tribes and wise men, and, according to Exodus 18:21, able men who had been chosen from all the people. Thus Aquinas believed that there should be limits on royal power, and advocated a form of constitutional monarchy. 47 Aquinas was almost certainly influenced by the feudal councils of great lords in his view of the aristocratic element in such a mixed constitution. There were, however, no contemporary political institutions that may have influenced Aquinas’ view of the democratic element, and historians have therefore considered that he was either considering the representatives of the towns that were sent to the assemblies of southern Italy, Germany and the Papal States, or simply accepted Aristotle’s view on the subject without reference to any contemporary institution. 48

Thus, while Aquinas certainly was not a democrat, and favoured monarchy as the best form of government, he also recommended constitutional limits on the power of the monarch, viewed sovereignty as ultimately deriving from the people and recommended that the best constitution included a democratic element, as well as monarchy and aristocracy. This ideal constitution, for Aquinas, had existed in ancient Israel. His ideas were further developed to support the deposition of tyrannical kings, and the development of more democratic forms of government. In the 20th century the Roman Catholic political theorists Yves R. Simon and Jacques Maritain based their support of democracy on Aquinas’ political theories.

The Conciliarist Movement and its Attempt to Establishment an Ecumenical Council as Governing Authority in Western Church

The medieval view that sovereignty lay ultimately with the people found radical expression within ecclesiastical as well as secular politics in the Conciliarist movement of the early 15th century. This was an attempt to repair the Schism that had occurred in the late 14th century with the election in September 1378 of Clement VII as a rival pope in Avignon to Urban VI. This Schism, which divided the Church between rival popes in Avignon and Rome, continued for thirty years, so that by the fifteenth century there were three popes claiming leadership of the western Church, John XXIII, Gregory XII and Benedict XIII. The Conciliarist movement was an attempt to end this Schism and restore the unity of Christendom under a single pope by developing the constitutional institutions through which unsuitable popes and rival claimants to the papacy could be deposed.

Initial suggestions for repairing the Schism included arbitration and negotiation between the rival popes and a mutual agreement to abdicate. The University of Paris, however, rejected these suggestions. Jean Gerson, the university’s chancellor, argued that the sovereignty and power to decide ecclesiastical issues, its plenitudo potestatis, lay in the body of the Church as a whole. This sovereignty was duly expressed and exercised through a general ecumenical council. The Conciliarists partly based their ideas on the way the Church held diocesan and provincial synods to solve disputes at the local level, and so recommended that this process should be extended to the Church as a whole to solve the debate that was scandalously dividing the western Church. Thus, Henry of Langenstein argued for such a council, stating that

‘New and dangerous emergencies, which arise in any diocese are dealt with in a council of that particular diocese or a provincial synod, and therefore it follows that new and arduous problems which concern the whole world ought to be discussed by a General Council. For what concerns all ought to be discussed by all, or by the representatives of all.’ 49

Origin of Idea of Delegated Authority of Governing Group from Broader Community in Canon Law to Provide Constitutional Basis for Decisions of Church Councils

In fact meetings of small numbers of clergy, such as cathedral canons and college of cardinals, to decide issues affecting the wider church, such as the whole of the clergy within a particular diocese, or the entire western Christian church, had long been the subject of discussion and debate amongst canon lawyers to investigate by what right the decisions of these individual clergymen could be considered to be binding on their  communities. The canon lawyers solved the problem through the adoption of the idea of mandated authority from Roman commercial law. Late antique Roman law recognised the existence of individuals, termed procurators, the origin of the English word ‘proctor’, who had been granted authority by another to act in their name to conduct business that would otherwise have been inconvenient or impossible for that person. Canon law extended this principle to argue that small groups of individuals, such as a cathedral chapter, also had power mandated to them as representatives of the wider community or group for whom they acted. Thus a cathedral chapter represented the wider Christian community in a diocese in the same way that a Roman procurator acted for his principal, the person who had granted him his power to act for him. 50 When a cathedral chapter thus gave its consent to a bishop’s decision, or the college of cardinals agreed to a particular papal policy, they acted on behalf of each and every member of the wider church, whether of the local diocese or in the whole of the western Church.

Canon Law Idea of Mandated Authority Basis of Constitutional Support for Secular Governing Councils

The theory of mandated authority clearly gave such advisory assemblies great powers and authority. Nevertheless the theory had been developed to solve the practical problem of how each person in the community could be represented in a matter when ‘what touches all should be approved by all’. In the cases of an ecclesiastical issue that affected every member of the church in the diocese, it was difficult or impossible to consult them individually. The idea of mandated authority allowed an advisory assembly, such as a cathedral chapter, to make decisions on their behalf as their representatives. The theory also gave considerable legal support to such councils, whether ecclesiastical or secular, such as the feudal grand councils, parliaments and estates-generals. It thus supported checks on the power of princes and bishops by granting legal rights and status on the councils that advised them. 51 Thus, for historians such as Brian Tierney, ecclesiastical Canon law formed the basis of ‘parliamentary constitutionalism’ – the constitutional rights of parliaments and representative assemblies, rather than monarchs, to make laws. 52

Attempt by Concialiarists to Make Authority of General Council Superior to the Pope

From the view that authority within the Church derived from its members as a whole, expressed and operating through a general council, the movement’s theorists developed more extreme views in which such general councils were therefore superior to the papacy in matters of faith. Furthermore, as the Church was the only infallible earthly institution, it possessed the power to decided church doctrine and correct and depose the pope if his doctrines were incorrect and he was incapable of properly governing the Church. Like Aquinas and the theorists of secular politics, the Conciliarists accepted the subject’s right to resist an unjust ruler, and that the best form of government was a mixed constitution that included elements of monarchy, aristocracy and democracy. These ideas resulted in the declaration of Council of Constance in 1414 that all authority within the Church ultimately derived from such a council, which possessed power over everyone within it, including the pope. 53

This decree has been described as ‘the most revolutionary official document in the history of the world.’ 54 The Council succeeded in ending the Schism by deposing John XXIII, achieving the resignation of Gregory XII, while Benedict XIII was later condemned as a schismatic and heretic. In their place, the Council elected a new pope, Martin V. However, there then followed a period of conflict between the Councils and the papacy, which eventually resulted in the emergence of two Councils, one at Florence and another at Basel, which elected an anti-pope, Felix V. 55 This new period of conflict and schism was eventually resolved in 1460 with the formal condemnation of the movement by Pope Pius II. Pius II had already reconciled the German emperor, Frederick III, to the papacy, and so deprived the Conciliarists of his support. 56

Roman and Canon Law Used also by Secular Courts as International Law for Particular Cases

The constitutional theories and movements that attempted to limit the power of secular princes through the establishment of advisory councils or other checks on their authority, and the Conciliarist movement to subordinate papal authority to a general council of the Church both developed from the interdependence in Europe of secular and Canon law. Both civil and canon law used Roman law, and the revival of Roman law in the 12th century reinforced the canon lawyers’ interest in it. 57 Such was the interdependence between secular and Roman law that when judges and plaintiffs in secular courts were unable to find a way of satisfactory solving a dispute, they turned to Roman and canon law to find a solution. Roman and Canon Law, to medieval lawyers, represented ‘everyone’s general law’, as both were considered to be universally applicable. They thus constituted a ius commune, or international law that could be used to settle disputes when there was a conflict in points of law between two parties of differing legal systems. This system of Roman and Canon law therefore became a ‘peacemaker’s law’ that allowed international disputes to be settled peacefully without military conflict. 58

Medieval View that Law Rational and that Unreasonable Laws therefore had no Force

The medieval Canon lawyers also stressed the rational nature of law, and considered that any law that was unreasonable was therefore invalid. Stoic philosophy had considered that there was a universal Law of Nature affecting human conduct. The Romans identified this Law of Nature with the ius gentium, the universal law that was held to govern the actions of the peoples of all nations. Canon Lawyers identified this natural law with the divine law revealed by the Almighty, which they considered an extension of a natural law. The great canon lawyer Gratian, at the end of his Decretum, declared that the golden rule was the Law of Nature, and that this was superior to all other laws because of its antiquity and dignity, and whose power therefore superceded custom and the legislation of human authorities. The British legal historian Sir Frederick Pollock considered this attitude towards the innate and superior rationality of the Law of Nature to be the origin of the English lawyer’s view that a custom could not be good if it was contrary to reason. It was also for him the origin of the attitude from the 16th to the 18th centuries that a law was invalid if it was held to be against reason and ‘common right’. 59

The thirteenth century Canon lawyer Hostiensis held the same view that laws should be reasonable. In his Golden Summa, extending and commenting on Gratian’s Liber Extra, Hostiensis indeed stated that the divine law revealed by God in Scripture was an extension of natural law, and that any law or judicial decision that was in conflict with rational natural law was invalid and untenable. 60

Conciliarists and Supporters of Secular Governmental Assemblies not Advocates of Democracy

While the Conciliarists considered that the Church’s authority lay in the community of the Church as a whole, and that this authority was expressed and exercised through general councils, they were not democrats in that they did not consider that this meant that everyone should have an equal vote. The extreme Conciliarists believed that everyone, including women, had a right to be heard in the Church’s debates, but considered that only the most important section of the ecclesiastical community was qualified to make decisions. 61

The Conciliarists were not alone in reserving practical political decisions to a better qualified minority, rather than the majority. Secular political theorists, like Marsilius of Padua, who strongly advocated populated sovereignty and rejected any involvement in politics or secular privileges by the Church, also considered that people did not possess an equal right to vote or involvement in politics. In his Defensor Pacis of 1324, Marsilius of Padua argued that the source of legislation was the people, expressing their will through a general assembly, stating that

‘The legislator, or the primary and efficient cause of the law, is the people or the whole body of the citizens, or the weightier part thereof, through its election or will expressed by words in the general assembly of citizens, commanding or determining that something be done or omitted with regard to human civil acts, under a temporal pain or punishment.’ 62 This ‘weightier part’ of the people, according to him, referred to ‘the quantity and quality of the persons in that community over whom the law was made.’ 63 Thus while he appears to have accepted that the whole community did indeed possess the power to make decisions, nevertheless his statement that this could rest in the best-qualified section of the community appears to indicate that he also accepted Aristotle’s view that citizens should participate in the community according to their position in society, with the result that those citizens lower down the social scale would have correspondingly little or no political involvement. 64

Nevertheless, although the Conciliarists were not democrats, their arguments for the sovereign authority of councils, rather than individuals, was a powerful contribution to the development of modern ideas of democracy. The historians Brian Tierney and Francis Oakley, have noted the similarities between the arguments used by the supporters of parliament against the king in 17th century England, such as Philip Hunton, Henry Parker and Charles Herle, and the Conciliarists two centuries previously. Indeed, the Royalist writer, John Maxwell, in his Sacro-Sancta Regum Majestas, had stated that the parliamentarians had been influenced in their idea that the people had the right to depose a monarch by the French Roman Catholics of the League during the Wars of the Religion in the 16th century, and the Conciliarists, including Gerson, Marsilius of Padua and William of Ockham. 65

Common Origin of Conciliarist Movement and English 17th Century Parliamentary Political Theory in Medieval Constitutional Political Philosophy

Historians have also suggested that the Conciliarists spread the idea of constitutional limits on power across Europe through its application to the papacy, thus spreading the idea beyond its use in national politics to the whole of western European Christendom. As a result, they preserved the idea of constitutional checks and balances against the development of absolutism, and spread its popularity throughout Europe. 66 Even if there was no direct link between the parliamentary supporters of popular sovereignty and the authority of governmental assemblies and the Conciliarists, it is possible that both were influenced in their views by the common culture of political philosophy that had developed in Medieval Europe. This common culture of political philosophy continued the medieval view of popular sovereignty, derived ultimately from the adoption of Roman ideas of the people as the source of political authority by the early Church.

Theological Arguments by English Serfs During the Peasants’ Revolt for the Abolition of Serfdom

The later Middle Ages was torn by a number of popular revolts against monarchical, aristocratic and municipal oligarchic authority, such as the Peasants’ Revolt of 1381 in England, the Jacquerie in Paris of 1358 and the revolt of the Maillotins, again in Paris in 1382, the revolts of the weavers of Ghent and Bruges of 1379-82, and the insurrection of the Ciompi in Florence in 1378. They were primarily the result of economic and political grievances against the abuse of power by the ruling elites, and demanded specific reforms to redress them. The English Peasants, however, justified their revolt against serfdom on religious grounds. According to the French chronicler, Froissart, they argued that there were no slaves and serfs at the beginning of the world, and that slavery should not exist except for those that had betrayed their lords. As, however, both serfs and lords were equally human, the peasants had a right to resist their subjection and demand wages for the services they performed for their lords. 67

Attempts to Establish Government by Parliamentary Assemblies on Partially Successful

The medieval attempts to establish systems of government based on advisory councils or representative assemblies, founded on popular sovereignty, was only partially successful. Republican administration of Novgorod was destroyed in the 15th century when it was annexed by the Grand Duke of Moscow, who carried off its bell. Political turmoil and dissension in the Italian republics resulted in the replacement of democracy by muncipal tyrants such as the Sforza, Visconti and Medici families. The English and Scots parliaments became established parts of these nations’ government, as did the cortes in Spain.

Although the estates-general was regularly held in France during the 14th and 15th century, it failed to become an established, constitutional part of the French governmental system in the way parliament had in England. Louis XI finally established the right of the French crown to levy taxes and wage war without calling the estates, which made its last efforts to assert its authority in 1484. 68 The imperial diets in Germany similarly failed to achieve any effective power, and only met occasionally when the emperor required them to consider the levying of extraordinary taxes. 69

The states-general in Germany was nevertheless successful in establishing itself as a representative body for the whole of Germany, where laws were passed through the consent and decision of the majority. Moreover the German princes managed to establish the local estates-general within their territories as constitutional governmental institutions. 70 As part of the landtag – the estates-general of that particular German state, they acted as a constitutional check to the power of the prince, thus creating a form of balanced constitution. 71 In France the provincial estates-general continued to meet and vote on taxes in the fifteenth century until they, like the national estates-general, were ended by the expansion of royal power by Charles VIII. 72

Conclusion:Medieval Governmental Assemblies not Democratic, but Origins of Later Parliamentary Government and Constitutional Limits to Power of Monarchy, partly Produced and Accepted by Theologians, Philosophers and Canon Lawyers

Even when such assemblies did become an established part of a state’s system of government, they were not democracies. Membership of these governmental councils, and the ability to vote in their election, was confined to members of the aristocracy, knights, and municipal commercial elites. Nevertheless, the Middle Ages had succeeded in establishing constitutional limits to the powers of monarchs and the authority of councils to represent the wider people, based on ideas of popular sovereignty, partly based on the arguments of theologians such as St. Augustine and Thomas Aquinas, and developed by canon lawyers from the conduct of ecclesiastical councils. These theories and their legal support were based on ancient Greek and Roman political theory, and Roman commercial law.

Although such institutions could become secular, such as Marsilius of Padua’s idea of a secular city state ruled by such an assembly of citizens in his Defensor Pacis, the papacy was also willing to call such governmental assemblies of its citizens in the administration of its states, while the Russian Orthodox Church had fully participated in the republican governmental institutions of medieval Novgorod. Even when these parliamentary assemblies failed to become part of system of government, monarchs were still subject to constitutional checks. From the Middle Ages to the French Revolution, the parlement of Paris – not an assembly of subjects, but a committee of lawyers – had the responsibility of examining royal legislation to check whether it was constitutional. These ideas of popular sovereignty, constitutional limits on the power of the monarch and the ability of governmental assemblies to pass legislation and advise the monarch, were further developed in the 16th and 17th centuries to provide the foundations for modern theories of representative government and democracy.

Notes

  1. James A. Brundage, Medieval Canon Law, (Harlow, Longman 1995), pp. 157-8.
  2. Waley, Later Medieval Europe from St. Louis to Luther ( Harlow, Longman 1985), p. 8; Hittinger, Liberty, Wisdom and Grace: Thomism and Democratic Political Theory (Lanham, Maryland, Lexington Books 2002), p. 50.
  3. Hittinger, Liberty, Wisdom and Grace, p. 50.
  4. Waley, Later Medieval Europe, pp. 8-9.
  5. Hittinger, Liberty, Wisdom and Grace, p. 51.
  6. Henry of Langenstein, ‘Consilium Pacis’, cited in Waley, Later Medieval Europe, p. 105.
  7. James A. Brundage, Medieval Canon Law , p. 107.
  8. Brundage, Medieval Canon Law, p. 108.
  9. Brundage, Medieval Canon Law, p. 110.
  10. Waley, Later Medieval Europe, pp. 105-6.
  11. Waley, Later Medieval Europe, p. 106.
  12. Waley, Later Medieval Europe, p. 106; Henry Bettenson, Documents of the Christian Church (Oxford, OUP 1963), p. 136.
  13. Bettenson, Documents of the Christian Church, p. 136.
  14. Brundage, Medieval Canon Law, p.111.
  15. Brundage, Medieval Canon Law, p. 112.
  16. Jacob, ‘Political Thought’, in C.G. Crump and E.F. Jacob, The Legacy of the Middle Ages (Oxford, Clarendon Press 1923), p. 527.
  17. Brundage, Medieval Canon Law, p. 157.
  18. David Wootton, ‘Introduction’, in David Wootton, ed., Divine Right and Democracy: An Anthology of Political Writings in Stuart England, (Harmondsworth, Penguin Books 1986), pp. 48-9.
  19. George Holmes, Europe: Hierarchy and Revolt, 1320-1450, second edition, (Oxford, Blackwell 2000), p. 111.
  20. Holmes, Hierarch and Revolt, p. 111.
  21. Wootton, ‘Introduction’, in Wootton, ed., Divine Right and Democracy, p. 49.
  22. Wootton, ‘Introduction’, in Wootton, ed., Divine Right and Democracy, p. 48.
  23. E.F. Jacob, Political Thought, in Crump and Jacob, The Legacy of the Middle Ages, p. 521
  24. Holmes, Hierarchy and Revolt, pp. 74-5.
  25. Charles Johnson, ‘Royal Power and Administration’, in Crump and Jacob, Legacy of the Middle Ages, p. 482.
  26. Charles Johnson, ‘Royal Power and Administration’, in Crump and Jacob, Legacy of the Middle Ages, p. 483.
  27. Geoffrey Barrowclough, The Origins of Modern Germany (Oxford, Basil Blackwell 1947), p. 349.
  28. Barrowclough, Modern Germany, p. 351.
  29. Johnson, ‘Royal Power and Administration’, in Crump and Jacob, Legacy of the Middle Ages, p. 483.

The Medieval Christian Contribution to Western Democracy: Part One

July 19, 2008

The Middle Ages aren’t a period people would normally associate with democracy. This was, after all, the period when kings and princes ruled through hereditary right and military prowess and the mass of the population were landless serfs working on their estates. Nevertheless, as I have pointed out in the two articles on Judaism, Christianity and the origins of western democracy, the Bible expressed and commanded the fundamental values at the heart of democracy – the moral commitment to denounce tyranny and to work for the common welfare of humanity, and the idea that everyone is equal before God. These ideas continued into Christianity, which took over Roman constitutional theories of popular sovereignty.

In this essay I hope to continue my examination of the way Christianity contributed to the emergence of democracy through the establishment of limits on the power of monarchs. This was achieved through the notion that sovereignty belonged to the people, and was only delegated to princes. The idea of delegated authority, elaborated by Canon lawyers, strengthened the position of the consultative assemblies that had been called by monarchs as an instrument of government since the early Middle Ages, and allowed them to develop into parliaments. Canon lawyers also stressed that monarchs were bound by the law, and that the people were also the source of law in the case of the popular customs that comprised much of medieval law. Philosophers and theologians such as Thomas Aquinas considered monarchs and authorities should interfere as little as possible in popular customary law as too much legistlation and interference in custom weakened the law generally. The result was that by the end of the Middle Ages many states in Europe had developed parliaments and governmental assemblies to advise and check the power of the monarch, as well as other constitutional limits to their power.

In this first part of the essay I shall examine the strong sense of popular rights, which existed in the Middle Ages, the existence of medieval republics and monarchical states governed through parliamentary assemblies, such as the republic of Novgorod in Russia and the Italian city states. I will also discuss the existence of the feudal assemblies kings and princes had called to advise them and assist them in government since the France of Charlemagne, and how these developed into parliaments in England and Spain, noting that the papacy approved of these governmental assemblies and called and used similar assemblies in the government of its own territories, the papal states. Although Thomas Aquinas considered that monarchy was the best form of government, nevertheless he also argued that the best form of the state was a well-mixed constitution, which included elements of monarchy, aristocracy and democracy. His view that the sovereignty on which the monarch based his power belonged to his people was developed by later philosophers and theologians to justify the right of the people to depose an unjust ruler.

Medieval View of Popular Rights and Sovereignty

The Middle Ages also possessed a strong sense of popular rights, which the king was bound to uphold, and whose violation by the king was just cause for resistance to the sovereign. The Sachsenspiegel, a medieval 14th century law code, stated clearly that if the king acted contrary to the ‘good customs’ of the people, their resistance to him to recover their rights was not a rejection of their allegiance. 1 As kings owed their sovereignty to the people, the people therefore possessed the power to depose a corrupt or tyrannical king. Manegold of Lutterbach, defending Pope Gregory VII during the Investitures Contest with the German emperor, stated that ‘since no-one can create himself Emperor or King, the people elevates a single one person over itself to the end that he may rule and govern it according to the principle of righteous government; but if in any wise he transgresses the contract of which he is chose he absolves the people from the obligation of submission, because he has first broken faith with it.’ 2 The result of this conception of popular sovereignty was that by the end of the Middle Ages, some statesmen, philosopher, theologians and lawyers had developed constitutional theories of the people as the foundation of the state that come very close to the modern conception of popular democracy. The Seneschal of Burgundy, Philippe Pot, at a meeting of the French estates-general – a meeting of the representatives of the nobility, clergy and ‘third estate’ to discuss the state of France after the death of Louis XI, declared that in the case of a king who was unable to govern, the right to rule lay in all the people, not just a few.

‘I wish to tell you, as far as my intelligence will allow me, what I have learned from great and wise men on the authority and the liberty of States. It is certain that the royal power is a dignity and not the property (haereditas) of the prince. History relates that at the first the sovereign people created Kings by its vote. It is in its own interest that each nation gave itself a master. The whole world repeats that the state is the creation of the people. If it is so, how could the people abandon its charge? How can flatterers attribute supreme power to the prince who exists only in virtue of the people? That being so, what is the power in France which has the right of governing when the king is incapable of doing so? Clearly this task reverts neither to a sole prince, nor a handful of men, but to all, that is the people, the giver of power. This task it must take up as it were its own, all the more so because it is always the victim, the sole victim of a bad government.’ 3

Republic of Novgorod Ruled by Governmental Assembly

The vast majority of European states remained feudal monarchies, ruled by kings and princes, though with governmental institutions that limited their power and represented the interests of the wider people. A very few states, however, did develop a very democratic character very much like the later constitution monarchies in which kingship was limited by representative, elected governmental institutions. 12th century Novgorod has been described as a republic. Historians have considered that its constitution ‘may be characterized as a democracy limited to a certain extent by the interests of the upper classes – de facto, if not de jure.’ 4

In Novgorod, sovereignty rested in the city, described as ‘Lord Novgorod the Great’, rather than the prince. This sovereignty was exercised through the veche, the city assembly, which met either in the square before the Prince’s Palace or in front of the cathedral of St. Sophia. These meetings were called by the tolling of the cathedral bell. 5 The male head of every free family in Novgorod had the right to vote, with the exception of slaves and the smerdy, free peasants who were under the authority of the local prince, or in the case of Novgorod, the city itself. 6 Laws could only be passed with the unanimous consent of the assembled citizens. To prevent the appearance of violent conflict between competing factions in the absence of a clear majority, the veche possessed a ruling committee of 300 members, chaired by the archbishop, called ‘the Lords’, composed of the prince’s lieutenant, senior municipal officials and the local boyar aristocracy, with the duty of preparing bills for debate in the veche. 7

The two most important officials were the mayor, termed the posadnik, and the chiliarch or tysiatsky. The posadnik was responsible for the city’s government, though he was also chief justice for legal disputes over land. The tysiatsky, however, commanded the city militia and was the chief justice for commercial law. Both posadnik and tysiatsky were elected for brief, but unspecified periods of time, though they could be re-elected, and continued to hold considerable authority even after leaving office. 8 The city was further divided into five autonomous boroughs or communes, each of whom elected their own mayor, called a starosta or elder. 9

Constitutional Limits Power of the Prince in Novogord

Although the city was ruled by a Grand Duke, the prince’s right to rule was strictly limited by city’s constitution. From 1136 onwards princes and their non-Novgorodian retainers could not own estates within the state of Novgorod. In 1196 a congress of Russian princes recognised that the people of Novgorod had the right to elect their own prince, provided that the elected prince should always be a member of the House of Riurik. Each prince on his accession to power, was required to sign a contract with the people of Novgorod in which he formally recognised the prohibition against him and his retainers owning land in Novgorod. He also recognised that the people of Novgorod had the right to elect city officials without interference from the prince, that these official could not be dismissed by him without a trial by either a court or the veche, and that the veche, not the prince, was the supreme judicial authority. 10

Condemnation of Slavery, Existence of Serfdom by Church and Recognition of Women’s Rights in Novgorod

While the Church strengthened the authority of princes through the example of the strict subordination of its members in its organisational hierarchy, it also acted to preserve some freedom by condemning complete slavery and supporting the social class of izgoi. 11 These were mostly freedmen, though they also included priest’s sons who remained illiterate, bankrupt merchants and orphaned princes, who had nowhere to go and no means of earning a living. The Church protected them from re-enslavement and gave them a livelihood by granting them church land, for which they paid rent and services and to which they were tied. They were thus serfs under the jurisdiction of the church. 12

Kievan Russia also recognised women as possessing rights. The ‘Church Statute’ of Yaroslav the Wise, compiled in the 13th century, punished with a fine the man who stole his wife’s hemp, flax, linen or other fabrics. Husbands were fined if they committed adultery, and parents were held responsible for the death of a daughter if she committed suicide after being forced to marry against her consent. 13 Women also were able to hold property and inherit property in their own right. 14

Limits on the Power of the Monarchy in Kievan Russian Polictical Philosophy

There was no comprehensive treatise on government in Kievan Russia, though some of the political ideas of that period in Russian history can be found in the sermons and correspondence of Russian clergy. All of them accepted the institution of monarchy, but every discussion of the powers of the monarch stated that the ruler was bound by the law. The monk Iakov, in his epistle to Prince Dmitry of c. 1072, stated that the ruler should retain his guiding principles, even when threatened with force, and should not permit any arbitrariness in his government.

Contemporary discussions of the nature of government and royal power did not recommend any particular legislation limiting royal power. They did not mention the democratic institutions of the republic of Novgorod, and so political theory was in many ways behind the reality. 15 However, Russian chronicles such as the Book of Annals considered that in order to rule well, a wise prince should surround himself with good councillors and pay attention to the Duma, the council of the boyar aristocracy. Similarly, the institution of the veche as the popular legal assembly was recognised. The Laurentian edition of the Book of Annals, compiled in the 14th century, states that ‘From aboriginal times, the Novgorodians, as well as the Smolensk, and the Kiev, and the Polotsk men, and the people of other lands, used to assemble for the veche for the deliberation of their affairs.’ 16 It was considered that there was a moral pact between the prince and his people. If the people were corrupt, then the prince had a duty to correct and punish them. If the prince was evil, he should be overthrown and replaced with a better ruler. 17

Republican Institutions and Government through Councils of Citizens in Italian City States

Novgorod was remarkable in the extent to which it had limited the power of the monarch and developed democratic, republican institutions, but not unique. The mid- and late thirteenth century saw Italian mercantile cities such as Florence and Perugia similar throw off the power of local feudal lords to become republics. The Italian republics had originally been communes, towns, which had acquired a degree of autonomy, governing themselves through a municipal guild. Such towns had been established across Western Europe in countries such as France, Flanders, Germany, England and Scotland during the urban revival of towns in the 11th and 12th centuries. Originally the Italian communes had been governed by a parliament of all the citizens, the arenga, and a class of administrative officials, the consuls. By the early thirteenth century, however, the consuls had been replaced by a single official, the podesta, who functioned as a kind of ‘town manager’. 18 The supreme authority in the commune, however, was the guild or popolo. This was governed at first by a captain, and then, by the late 13th century, a number of guild officials called priors. 19 These city states then passed a series of legislation excluding the feudal aristocracy from power. In Florence in 1293 the citizens established the post of Standard-bearer of Justice, or Gonfaloniere de Giustizia with the responsibility of punishing crimes by the local aristocracy. A magnate who killed a member of the guild automatically received the death penalty. His house would be destroyed and his property confiscated. If he vanished and could not be found, his next of kin was liable to be punished in his place. As aristocrats could not be members of the guilds, they were unable to hold office as priors. 20

Independent Towns Ruled by Councils in Medieval France and Flanders

Similar communes with a high degree of independence existed in north-western France and Flanders, where the ruling officials were termed echevins. These had originally been appointed by the towns’ feudal lords to dispense justice. After these towns gained their independence from their feudal overlords, the echevins formed the cities’ governing councils. Originally appointed by the lords for life, their term in office was now limited to one year, though in practice towns such as Ghent rotated the office among a strictly limited number of individuals, so that while it was in theory governed by a council of thirteen, it was in fact ruled by an oligarchy of 39 leading citizens. 21

Development of Feudal Councils as Part of Royal Government into Parliamentary Assemblies in Middle Ages

Medieval political theorists, however, generally considered monarchy to be the best form of government. As God was monarch of the universe, so secular monarchs were considered to be limited representations of God’s lordship of the cosmos. Medieval political theory stressed the goal of social unity, and considered this could only be achieved through the government of a single individual. 22 In practice, however, the power of the king was limited through consultative assemblies of his lords and vassals, such as the witangemot, or council of wise men in Anglo-Saxon England, and the feudal grand council of nobles elsewhere in Europe. Archbishop Hincmar of Rheims, in his treatise on royal government, The Government of the Palace, written in 818 for Charlemagne’s grandson, Carloman, gave a detailed description of the operation of the royal feudal assembly in France. 23 This met twice a year. In winter, a small number of experienced councillors met to consider the issues that would need to be discussed at the main meeting in the summer. It was during the plenary meeting of the main summer council, usually held in the afternoon and attended both by the great magnates and the lesser lords, that the issues and legislation proposed by the Frankish emperor were heard and occasionally discussed. It was after the assembled lords had confirmed them that the king’s proposals formally became law. 24 Individual lords attending the assembly were questioned by the king whether there were any complaints or dissatisfaction in his part of the kingdom, which the assembly needed to deal with. Thus, Frankish kings used the assembly to deal with popular unrest before it could escalate into rebellion. 25

The thirteenth century saw the appearance of such grand councils as an established governmental institution in England, Aragon and Castile. These assemblies – parliament in England, and the cortes in Spain – originally could only advise the king and had no power to block royal legislation. Nevertheless, they were de facto limitations of the royal power, and indicated the possibility of further constitutional developments. 26 In Aragon, each of the three constituent provinces had its own cortes, representing the clergy, nobility and the towns. These met every three years, regardless of the wishes of the monarch. During the 14th century, Catalonia, then Aragon and Valencia, established a standing committee, the generalitat. This was originally responsible for supervising that the grants of money made by the assembly were properly spent, but soon acquired judicial and military functions. Royal power was further limited in Aragon by the justicia, which was elected by the minor aristocracy to protect their interests from attack by royal officers. 27 The great law code compiled by Alfonso X of Castile, the Siete Partidas, stated that while only kings, emperor or the deputies could make laws, this could only be done in counsel with the good, most honoured and learned men in the kingdom. 28

Similar assemblies were called by the emperor Frederick II in Foggia for the southern kingdom of Italy in 1232, including representatives from the towns; by William of Holland in the Rhineland from 1247-56, and by Pope Innocent III in the Papal States in 1207. Indeed, similar meetings were held regular in some provinces of the papal states in the second half of the thirteenth century. 29 These early parliamentary assemblies chiefly represented only the aristocracy, knights and the new urban industrial and mercantile classes. The peasants, who constituted the vast majority of the medieval population, were generally excluded from them. Remarkably, some provincial assemblies, such as the provincial diets of Tyrol and Wurttemberg in Germany, did include the peasants. 30 This was extremely unusual, considering the strongly hierarchical nature of medieval European feudal society. Nevertheless, it illustrates how these early governmental assemblies had the potential to develop something like the character of a democratic parliament.

Concern by Papacy for Royal Justice

While the struggles between popes and emperors for political ascendancy are one of the most important and recurring features of medieval history, the papacy was nevertheless genuinely concerned to ensure that secular monarchy was the source of justice. When Charles of Anjou ascended to the throne of Sicily and Naples, he received a letter from Pope Clement IV advising him on how to rule justly. The pope advised that royal judges should be incorruptible, with a salary and sitting daily. Complaints against royal officials should be investigated rapidly, by an official, either a monk or a good-natured knight, who was specifically responsible for handling them. The king should take innocent people hostage, or make them pay for those who were genuinely guilty. During inquiries about royal rights, the burden of proof should only be placed on the subjects in reasonable circumstances. Furthermore, the king should not abuse his feudal rights to interfere in the marriage of his tenants’ daughters. He was also advised to find a solution to the problem of that year’s taxes through agreement with his barons, clergy and townspeople. 31 Thus in practical politics the papacy here was concerned to ensure that Charles of Anjou governed well as a feudal monarch through just, efficient administration and a process of consultation and agreement with his vassals.

View of Aquinas that Best Constitution included Element of Democracy

Thomas Aquinas also made a contribution to political theory, particularly in his treatises On Kingship and the Treatise on Law. Although he strongly supported monarchy as the best form of government, nevertheless in the answer to the question ‘Whether the Old Law Enjoined Fitting Precepts Concerning Rulers?’ Aquinas considered that the Mosaic Law provided for the inclusion of a democratic element in government. 32 In his discussion of the nature of the state and the best type of government, Aquinas combined Aristotelian political theory with the contemporary, medieval view of government, supporting his conclusions with reference to scripture. Historians have therefore considered that ‘in his writings is to be found the same characteristically medieval blend of classical influences with those of contemporary society: his views on politics comprise in essence an attempt to apply a Christianized version of Aristotle’s thought to the feudal monarchies of his own day.’ 33

Monarchy the Best Form of Government in Aquinas

Aquinas considered that the best institution or process was always one that most closely corresponded to a natural process. Monarchy was the best form of government, because in nature government was always by a single entity. Thus, according to Aquinas, the human body was moved only by one organ, the heart, the human soul possessed a single, ruling faculty in reason, bees had one ruler, and there was only one God in the universe. 34 Monarchy was further better than democracy or oligarchy, because government by a single person could promote unity in peace, while government by many produced dissension and conflict. He considered that experience demonstrated that the cities and provinces, which were not ruled by a single person, were therefore subject to division and political turmoil. Aquinas accepted Aristotle’s view that the majority of people were unable of attaining moral standards. Moreover, humans possessed a great variety of talents. Some were more talented than others. Aquinas considered that government should always be by the best individuals, a principle that could clearly justify monarchy, aristocracy or rule by a military elite. 35 Thus, Aquinas himself was not a supporter of democracy, and indeed considered the best form of government to be a monarchy.

Support for Democratic Ideas of Human Equality and the Direction of the law to the Common Good in Aquinas

Nevertheless, Aquinas also provided support for democracy through his philosophical views on human equality, the necessity of working towards the common good, and particularly his idea of the constitution of a well-mixed regime. Christianity, like Judaism, maintained the Biblical view of the fundamental equality of the human race before the Lord. Aquinas supported this view with the argument in his work, Being and Essence, based on Aristotelian philosophy, that there was one, universal human essence, which was abstracted from all the differences of individual humans. 36 Aquinas was also influenced by Aristotle’s Politics that the essential goal of political organisation, institutions and policies should be the common good. The common good was the standard governing everything from the imposition of taxation to the constitution of states. 37 Thus, in his Treatise on Law, in his answer to the question, ‘Whether the reason of any man is competent to make laws’, Aquinas stated

‘A law, properly speaking, regards first and foremost the order to the common good. Now to order anything to the common good, belongs either to the whole people, or to someone who is the vice-gerent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.’ 38

View of Aquinas that Rulers Govern on Behalf of their People Source of View that People Have Right to Depose Unjust Monarchs

Thomas Gilbey, in his 1966 translation of Aquinas’ writings on law and political theory, noted that the term ‘vice gerent’ was derived from the Latin phrase ‘gerere vicem’, to act on behalf of someone. The vice-gerent was thus, for Aquinas, ‘the public personage, the figure who personifies the community, and is its guardian and, in the fullest sense, its caretaker.’ 39 If the government was not directed towards the common good of the majority of citizens, but only towards the private good of the ruler, it was unjust and the ruler was clearly a tyrant. 40 Aquinas further supported his argument on this point by quoting Ezekiel 34:2 ‘Woe be to the shepherds of Israel that do feed themselves! Should not the shepherds feed the flocks’ 41 It has been noted that Aquinas in this passage does not recommend that the ruler should consult with the people before passing a law, only that he does so as the representative of the whole community. 42 Nevertheless, Roman Catholic theologians and political theorists such as Cardinal Cajetan, Cardinal Bellarmine and Francisco Suarez based their views on the limitation of the power of the monarchy on this passage. Cajetan considered that while the Pope could not be deposed, he therefore had the power to depose secular rulers. Bellarmine considered that no single individual possessed power, but it belonged to the people as a whole. Suarez went further and argued that the most natural form of government was democracy, because it required no institution, while all other forms of government were the result of a conventional institution. 43

Thus the medieval view that kings were bound by the law and that sovereignty ultimately lay in the people, rather than the monarch, resulted in the idea that unjust kings could be legitimately deposed. As a result, republics emerged during the Middle Ages, like the Italy city states and the republic of Novgorod, which were ruled by governmental assemblies. Monarchies, such as those of England, France, Germany, Spain and Italy also included parliamentary assemblies in their governmental systems. Although monarchy was considered the best system of government, nevertheless Thomas Aquinas strongly argued for human equality and provided the philosophical and theological arguments that formed the basis for the views of later philosophers and theologians that the monarch could be legitimately deposed by the sovereign people or the papacy as a check on immoral or corrupt government.

In the second part of the essay I will examine the way Aquinas, although he considered monarchy to be the best form of government, nevertheless also argued that the best form of constitution included features of aristocracy and democracy, as well as monarchy. I will also discuss the way the view of Aquinas and the Canon lawyers that the people were also the source of law in the case of the customary law which operated in medieval Europe, and that as law was innately rational, unreasonable laws had no force. I will also discuss the emergence of the Conciliarist movement, which attempted to govern the church through a system of ecumenical councils that were superior to the papacy, and the philosophical and theological link this had with the development of secular political assemblies. Medieval Canon law provided the basis for the authority of such advisory councils and governmental assemblies on behalf of the wider community through its notion of mandated authority, developed to allow ecclesiastical authorities to make decisions on behalf of the wider church. I will also discuss the theological views articulated by the English peasants in the Peasant’s Revolt that serfdom should be abolished as all humans had been created equal. Although the medieval governmental assemblies were strongly oligarchic, with membership reserved for nobles, knights and members of the urban elite, nevertheless these provided the foundation for later parliamentary democracy while the Conciliarist movement may have inspired and provided the basis for the arguments of the parliamentarians during the British Civil War/ War of the Three Kingdoms. Thus the constitutional theories developed by philosophers, theologians and lawyers during the Middle Ages formed the basis for modern, parliamentary democracy.

Notes

  1. E.F. Jacob, ‘Political Thought’ in C.G. Crump and E.F. Jacob, The Legacy of the Middle Ages, (Oxford, Clarendon 1926), p. 526.
  2. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 529.
  3. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 531.
  4. George Vernadsky, Kievan Russia (New Haven, Yale University Press 1948), p. 199.
  5. Vernadsky, Kievan Russia, p. 198.
  6. Vernadsky, Kievan Russia, p. 144, 198, 199.
  7. Vernadsky, Kievan Russia, pp. 198-9.
  8. Vernadsky, Kievan Russia, p. 199.
  9. Vernadsky, Kievan Russia, pp. 199-200.
  10. Vernadsky, Kievan Russia, pp. 197-8.
  11. Vernadsky, Kievan Russia, p. 205.
  12. Vernadsky, Kievan Russia, pp. 153-4.
  13. Vernadsky, Kievan Russia, p. 156.
  14. Vernadsky, Kievan Russia, pp. 155-6.
  15. Vernadsky, Kievan Russia, p. 288.
  16. Vernadsky, Kievan Russia, p. 289.
  17. Vernadsky, Kievan Russia, p. 289-90.
  18. Daniel Waley, Later Medieval Europe from St. Louis to Luther, Second Edition (London, Longman 1985), p. 21
  19. Waley, Later Medieval Europe, p. 22.
  20. Waley, Later Medieval Europe, p. 21.
  21. Waley, Later Medieval Europe, p. 23.
  22. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 518.
  23. Janet L. Nelson, Charles the Bald (London, Longman 1992), p. 43.
  24. Nelson, Charles the Bald, p. 46.
  25. Nelson, Charles the Bald, p. 48.
  26. Waley, Later Medieval Europe, p. 10.
  27. ‘The Rise of Spain and Portugal’ in Esmond Wright, History of the World: Prehistory to the Renaissance (Feltham, Newnes Books 1985), p. 498.
  28. Waley, Later Medieval Europe, p. 7.
  29. Waley, Later Medieval Europe, p. 10.
  30. Charles Johnson, ‘Royal Power and Administration’, in Crump and Jacob, Legacy of the Middle Ages, p. 483.
  31. Waley, Later Medieval Europe, p. 6.
  32. John P. Hittinger, Liberty, Wisdom and Grace: Thomism and Democratic Political Theory (Lanham, Maryland, Lexington Books 2002), p. 50.
  33. Waley, Later Medieval Europe, p. 8.
  34. Waley, Later Medieval Europe, p. 9.
  35. Hittinger, Liberty, Wisdom and Grace, p. 50.
  36. Hittinger, Liberty, Wisdom and Grace, p. 44.
  37. Waley, Later Medieval Europe, p. 8.
  38. St. Thomas Aquinas, cited in Hittinger, Liberty, Wisdom and Grace, p. 42.
  39. St. Thomas Aquinas, Summa Theologiae, Law and Political Theory, Thomas Gilbey, ed. and trans., in Blackfriars vol. 28 (New York, McGraw-Hill 1966), cited in Hittinger, Liberty, Wisdom and Grace, p. 47.
  40. Waley, Later Medieval Europe, p. 8.
  41. Ezekiel 34:2, in the Bible, KJV (London, Collins), p. 799.
  42. Hittinger, Liberty, Wisdom and Grace, p. 47.
  43. Hittinger, Liberty, Wisdom and Grace, pp. 40-1.