Posts Tagged ‘Law’

John Warr, Civil War Political Writer: Lawyers Unjust and Charging Fees above Ability of Poor to Pay

July 22, 2013

The Leveller pamphleteer and polemicist, John Warr, was particularly critical about how the law was used as an instrument of the ruling classes to oppress the people. His criticism of the law as an institution was so extreme, that he has been seen as a predecessor of 19th century Anarchism. One of the points he made in his 1649 pamphlet, The Corruption and Deficiency of the Laws, was that legal fees were far to high for the poor to afford, thus effectively denying them justice. He wrote

‘For the officers or menial servants of the law are so numerous that the price of right is too high for a poor man. Yea, many of them procuring their places by sinister ways must make themselves savers by the vails of their office: yea, ’twere well if they rested her and did not raise the market of their fees for they that buy at a great rate must needs sell dear. But the poor and the oppressed pay for all. Hence it is that such men grow rich upon the ruins of others, and whilst law and lawyer is advanced, equity and truth are under hatches, and the people subject to a legal tyranny, which of all bondages is one of the greatest.

Mere force is its own argument and has nothing to plead for it but itself, but when oppression comes under the notions of law ’tis most ensnaring, for sober-minded men will part with some right to keep the rest, and are willing to bear to the utmost. But perpetual burdens will break their backs (as the strongest jade tires at the last), especially when there is no hope of relief’.

I’ve included it here following the Conservative reform of legal aid, which will make justice far too expensive for the poor to afford. Warr was writing in the 17th century, but his comments are still very relevant today.

Source

John Warr,The Corruption and Deficiency of the Lawes of England Soberly Discovered: or Liberty Working up to Its Just Height, in David Wootton, ed., Divine Right and Democracy: An Anthology of Political Writing in Stuart England (Harmondsworth: Penguin 1986).

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The Lib-Dem’s Introduction of Secret Courts

July 13, 2013

The political blog, Another Angry Voice, has this piece about legislation by the Lib-Dems introducing secret courts into Britain:

Secret Courts: The Very Illiberal Democrats

On the 4th of March 2013 the majority of Lib Dem MPs sided with the Tory government to shoot down two last minute amendments to the Justice and Security (Secret Courts) Bill.

For those of you that don’t know about what the Tory “Secret Courts” bill entails, here’s a brief description: As it now stands, defendants (or claimants in civil cases) can be excluded from the hearings where their fates are decided; they will not be allowed to know what the case against them is; they will not be allowed to enter the courtroom; they will not be allowed to know or challenge the details of the case; and they will not be allowed representation from their own lawyer, but will instead be represented (in their absence) by a security-cleared “special advocate”.

The full article can be read here: http://anotherangryvoice.blogspot.co.uk/2013/03/secret-courts-very-illiberal-democrats.html

This is a violation of Magna Carta and a return to regime of the 15th and 16th Star Chamber that was used to degrade, disgrace and punish members of the aristocracy.

The Star Chamber Court

The Court of Star Chamber is the name given to the King’s Council, from the chamber in which it sat. When it sat as a court, it was held in a chamber in Westminster Palace decorated with a blue ceiling with stars. It is not to be confused with the court that enforce laws against the maintenance of private armies by the aristocracy, corrupt juries and rioting, which a sixteenth century clerk described as ‘pro camera stellata’ in the provisions for it in the statute book.

The court of Star Chamber was not an exclusive criminal court. Half of the business it dealt with were civil cases. It could, however, proceed unimpeded by the restrictions on other law courts. For example, it could try cases in secret and without a jury. The cases it tried came from private petitions brought by aggravated suitors. In contrast to its notorious reputation, it only levied moderate fines. Those convicted by the court were only jailed until they paid them. Nevertheless, it was bitterly resented by the aristocracy, who complained:

‘There were very few persons of quality who had not suffered or been perplexed by the weight or fear’ from the censures and judgements’ of the Star Chamber Court. They bitterly resented this attack on their personal honour, and felt it degraded them to the level of the ordinary Englishman. They complained that

‘persons of honour and great quality … were every day cited in the High Commission Court, upon the fame of their incontinence, or other scandal in their lives, and were there prosecuted to their shame and punishment … (which they called an insolent triumph upon their degree and quality, and levelling them with the common people …’.

It was one of the causes of the disaffection with Charles I’s reign that resulted in the outbreak of the British Civil War/ War of the Three Kingdoms. Another cause was the increasing tax burden that fell on the peasantry, urban artisans and the ‘middling sort’, from which the aristocracy were exempt.

Magna Carta

Several of the most celebrated and famous passages in the Magna Carta, wrung out of king John by the barons at Runnymede, are for the effective provision of justice against its abuse by royal power. Chapter 39 expressed the basic foundation of the rule of law:

‘No freeman shall be arrested, or kept in prison or disseised (of his freehold) or outlawed or banished, or in any way brought to ruin – and we will not act against him or send others against bhim -unless by the lawful judgment of his peers or by the law of the land’.

Chapter 40 promises that

‘To none will we sell, refuse, or delay right or justice’.

This was in response to the complaint that it cost too much to secure a writ from the king, who in any case accepted gifts and bribes to speed or delay court cases. Chapter 20 also contains the provision that fines will be of a reasonable size, and not be so great as to deprive men of their livelihood.

The Magna Carta has been for centuries the outstanding symbol of English justice, and the baron’s victory over John at Runnymede a shining illustration of the ‘Commune of England’, in which ‘every man has his own opinion’, as one Anglo-Norman baron put it. In actual fact Magna Carta is much less impressive when examined critically. Most of its clauses are to secure the privileges of the aristocracy, rather than the establishment of anything like democracy. When these do occur, they are so vague and interpretation that no two people could necessarily agree on what they actually mean. They contain no penalties, nor means of enforcement. Nevertheless, they were seen at the time and by future monarchs as the foundation of traditional English liberties. It was repeatedly reissued by monarchs such as John’s son, Henry III.

Regardless of whether or not Magna Carta is an effective guarantee of English freedom, it was one of the major foundations of British constitutional government. The legislation introduce by Lib-Dems that allows for secret trials overturns these principles and threatens to return Britain to the days of the Star Chambers. The only difference this time will be that it is the poor, rather than the aristocracy and the wealthy, who are ground under foot.

Sources

Sinclair Atkins, England and Wales under the Tudors (Sevenoaks: Hodder and Stoughton 1975).

Frank Barlow, The Feudal Kingdom of England 1042-1216, 4th Edition, (London: Longman 1988)

Brian Manning, ‘The Aristocracy and the Downfall of Charles I’, in W.R. Owens (ed.), Seventeenth Century England: A Changing Culture. Two volumes. Volume 2: Modern Studies (London: Ward Lock Eductation/ The Open University Press 1980) 109-18.

Christianity and the Origins of Democracy – The Sixteenth Century: Part 1

August 13, 2008

In the last blog posts on the contribution to the rise of democracy by Christianity and the Bible, I’ve discussed the origins of the democratic values of equality and the denunciation of tyrants in ancient Israel, Judaism and Christianity, and their development in the early Church along with constitutional theories of the origin of government and authority in society. These constitutional theories were further developed by medieval theologians, philosophers and canon lawyers to create political theories and governmental institutions in which the power of the king was checked by governmental assemblies, which in theory represented the wider state or community, and justified the deposition of monarchs for injustice and tyranny. In this article I will discuss the Christianity’s contribution to the development of democracy in the 16th century.

The first part of this essay will examine the views in England, of theologians and political philosophers such as Richard Hooker, and Claude De Seyssel in France that there were constitutional limits to the power of the monarch, and that power was shared or limited by institutions such as representative assemblies and the parlements of lawyers in France, which examined royal legislation. Part two will discuss the view of other French political theorists that royal power was limited by the constitution, as well as the view of supporters of absolute monarchy that both Roman Catholicism and Protestantism should be tolerated, and the king should be above individual religious faiths. It will also discuss the development of Huguenot theories on the constitutional limits to royal power and the rights of subjects to resist unjust rulers. Part three will continue the discussion of Huguenot political theories as well as the views of French Roman Catholics, the Spanish Jesuits Molina and Mariana, and the Scots political theorists and historians John Major and George Buchanan that royal power was limited, and kings should govern in accordance with the will of the people through their representative institutions. Part 4 will discuss the views of Calvin, Knox and other Protestants that subjects have the right to resist and overthrow tyrants, and the arguments and demands for religious toleration and freedom of conscience by the Politiques in France, and Castellion and Acontius in Geneva, and consider the effect of these doctrines in Europe and their influence in the 17th century.

Development of Constitutional Limits to Powers of the Monarchy and Political Theories Amongst Roman Catholics and Protestants in the 16th Century

By the 16th century most European states possessed political institutions that limited the power of the Crown. Parliamentary assemblies formed part of the governmental systems in Castile, Aragon and Valencia in Spain, France, including the powerful and independent Duchy of Burgundy, Germany, England, Scotland, and Bohemia, Hungary, Transylvania, Lithuania and Poland in eastern Europe. The contests between princes and their frequently rebellious subjects, and the intense theological and political conflicts produced by the Reformation, further stimulated the development of theories of government and practical attempts at governmental reform. The rise and growth of Protestantism and the attempts by the authorities at various times and places to support or counter it led philosophers and theologians to examine the nature of political sovereignty, whether, and how far, subjects had a right to resist unjust or heretical monarchs, the role of parliaments in guiding and checking royal power, and indeed the very relationship between Church and State. Faced with the turmoil and bloodshed of civil war, both Roman Catholics and Protestants argued for toleration and freedom of conscience, with some arguing for a complete separation of the two. The hierarchical structure of society was attacked and criticised, as peasants and theologians demanded the abolition of serfdom, and urged the creation of a truly just society without oppression and exploitation. In the cultural sphere, Christian Humanists such as Erasmus stressed the importance of education and learning, leading princes and municipal authorities to found libraries, schools and universities across Europe. Thus the sixteenth saw the development of many of the characteristic institutions and cultural features of modern democratic states, as political theorists, theologians and the members of popular movements attempted to create a just, educated and tolerant society, whose rulers governed with parliamentary assemblies and were guided by Christian morals and principles.

View of Bishop Hooker in England that Political Authority Established by Primeval Human Community for their Protection

The political philosophers and theologians of the sixteenth century continued and developed the medieval view that political authority derived from human society. It had first been established when people began to live in communities and instituted rulers in order to protect themselves and their property from conflict. Before they established these early forms of government, people realised that they had a right to defend themselves against attack or injury, no-one had a right to pursue their own interests to the extent that they harmed someone else, that they had a right to join together to protect themselves against attack or injury, and that justice prohibited people from acting as judges when their own interests were involved. Thus, for Hooker, ‘to take away all such material grievances, injuries and wrongs, there was no way but only by growing upon composition and agreement amongst themselves, by ordaining some kind of government politic and by yielding themselves subject thereto.’ 1 The founders of this early political community realised that ‘strifes and troubles would be endless, except they gave their common consent all to be ordered by some whom they could agree upon; without which consent there were no reason that one man should take upon him to be lord or judge over another.’2 Thus princes and judges owed their power to the community that had first established them to protect them and their interests. Government by a single person, however, frequently led to tyranny, as rulers abused their power to benefit themselves solely, without taking account of the requirements of their subjects, and indeed often acting against them. Thus these early states established laws independent of the monarch, which were binding on both them and their subjects, in order to safeguard them from such arbitrary government. ‘They saw that to live by one man’s will became the cause of all men’s misery. This constrained them to come unto laws, wherein all men might see their duties beforehand and know the penalties of transgressing them.’ 3

Hooker’s View that Form of Government Established by the Whole Community According to own Desires

While Hooker was a monarchist, he nevertheless recognised that it was not the only possible or just form of government, as ‘the inconveniences of one kind have caused sundry others to be devised.’ 4 Indeed, God had granted human societies the right to establish whatever form of government they considered just. ‘Unto me it seemeth almost out of doubt and controversy, that every independent multitude, before any certain form of regiment established, hath, under God’s supreme authority, full dominion over itself … God, creating mankind, did endue it naturally with full power to guide itself in what kind of societies soever it should choose to live.’ 5 Sovereignty and the power to make laws belonged to the whole community, which conferred this power on a particular person or assembly. For these rulers to govern justly, they had to recognise that their authority was derived either from God or from the community. When governments and rulers, which failed to do this, and ruled solely in their own interest, were tyrannies. ‘By the natural law … the lawful power of making laws to command whole politic societies of men, belongeth so properly to the same entire societies, that for any prince or potentate, of what kind soever upon earth, to exercise the same ofhimself and not either by express commission immediately and personally received from God or else from authority derived at the first from their consent upon whose persons they impose laws, it is no better than mere tyranny.’ 6

View of Some English Monarchists that Royal Power Limited

Even some monarchist writers, who were concerned to demonstrate that the best form of government was that of a single ruler, considered that the monarch was nevertheless bound by their nation’s laws. Charles Merbury in his 1581 A Brief Discourse of Royall Monarchie as of the best Common Weale stated that the king of England ‘is subject unto laws both civil and common, to customs, privileges, covenants and all kinds of promises, so far forth as they are agreeable unto the law of God.’ 7 While Merbury believed that monarchs were responsible only to God and their own conscience, and that parliaments could only advise the monarch, but not make laws or obstruct or alter the king’s own legislation, nevertheless he seems to have considered that the monarch nevertheless did not have the sole authority to make laws. Similarly Sir John Hayward considered that although the prince possessed absolute power, nevertheless they had established parliaments everywhere, and that in practice legislation was conducted according to the laws and customs of those particular nations. 8 Sir Thomas Craig held similar views, considering that it was only with parliament or the great court of the kingdom that the king of England possessed sovereign power. He stated that ‘the monarchy is tempered with something of aristocracy and democracy’, and that king could only raise taxes through public agreement. 9

View of Thomas Smith that King bound by Parliament, which Represented the Whole Nation from Poorest to Most Powerful

Robert Parsons, under the pseudonym ‘Doleman’, considered that government naturally arose with the establishment of the first communities. As a natural phenomenon, it was established by God. God had not, however, established any particular form of government as the best, and so permitted the various nations to establish whichever form of government suited them. ‘These particular forms of are left unto every nation and country to choose that form of government which they shall like best and think most meet for the natures and conditions of their people.’ 10 Monarchs ruled solely for their subjects’ welfare. As the people have delegated their authority to the king, they also had the right to remove this authority and depose him if he ruled badly and did not respect either the laws of his kingdom or the conditions by which he held his authority. If a prince did not govern religiously, equitably and lawfully, Doleman considered that he should be deposed to rescue the kingdom from his tyranny. 11

The most important supporter of the view that the English governmental system was a mixed monarchy consisting of the king in parliament was Sir Thomas Smith. During his career he was a university professor, teaching natural philosophy, Greek and civil law; a dean, Provost of Eton under Protector Somerset. He entered the clergy in 1546, but seems to have abandoned this as a career after 1559. He was Elizabeth’s ambassador to Paris from 1562 to 1566. He became a member of the Privy Council in 1571 and was appointed Secretary of State in 1572. He died five years later in 1577. Smith considered that there were three types of government – monarchy, aristocracy and democracy. In practice, however, he considered that all governments were mixtures of these forms of government. Smith considered the state to be ‘a society or common doing of a multitude of free men collected together and united by common accord and covenants among themselves, for the conservation of themselves as well in peace as in war’. 12 Legislation was passed by both the king and parliament, which represented everyone in the nation. Smith stated that Parliament ‘abrogateth old laws, maketh new, giveth orders for things past and for things hereafter to be followed … All that ever the people of Rome might do … the same may be done by the parliament of England, which representeth and hath the power of the whole realm both the head and the body. For every Englishman is entended to be there present … from the Prince to the lowest person. And the consent of the Parliament is taken to be every man’s consent.’ 13 Smith probably considered that sovereignty resided with the king, rather than parliament. He did not discuss whether the king had the right to raise taxes and pass laws without the consent of parliament, and certainly stated that the king alone handled foreign relations and made official appointments. Nevertheless, he felt that absolute monarchy was both dangerous to the monarch and their subjects. Indeed, most absolute monarchies were simply tyrannies. When the nation was governed by a tyrant, Smith considered that in certain circumstances rebellion was justified.

Smith’s views were unusual in that he did not argue that authority was conferred by God, and did not support them through Scripture or arguments on natural law. Nevertheless, his view that the power to make laws resided in parliament, and that the monarch was bound by law was very similar to Richard Hooker’s later views in defence of the Anglican Church.

View of Wentworth that Parliament, like King, established by God; Function of Parliament to Redress Grievances in Country

The MP Peter Wentworth also considered that parliament possessed the power to pass laws. Both parliament and the king received their authority from God. Parliament’s power, for Wentworth, ‘is appointed by God, as the power next to Himself to reform and redress wrongs and outrages which cannot be holpen by other means and by good and wholesome laws to procure the peace and wealth of the Republic.’ 14 Although kings also received their power from God rather than from humans, they were bound by the laws of the nation over which they governed. Princes had been established by God ‘for the maintenance of His truth and to minister justice according to the good and wholesome laws of that land of which He doth place him.’ 15 Wentworth’s view that parliament was there to redress wrongs and grievances led him to believe strongly in free speech. He considered that parliament should have the freedom to discuss and offer advice to the king on all subjects, and held that the king had no right to limit or prohibit free debate as this was directly opposed to parliament’s position as the only the source of legislation. 16

View of De Seyssel in France that French Monarchy Limited

These ideas were not confined to England. French political theorists also held similar ideas, despite the increasing developments towards absolutism there during the sixteenth century. Claude De Seyssel, who in his long career had been a bishop, a minister under Louis XII, and the Chancellor of France, as well as ambassador to England, similarly considered that the power of the French crown was limited in his Le Grant Monarchie de France of 1518, apparently written in response to a request for advice from the new king after Louis XII’s death. Seyssel considered that monarchy was the best form of government, as it was the most effective and least vulnerable to degeneration. Nevertheless, he was realistic about the personal capacities and virtues of princes. He recognised the possibility of an incompetent monarch, and considered that there was a greater probability of the king being incompetent than an efficient ruler, as good princes were rare. Despite these problems, Seyssel viewed monarchy as the best form of government, and the French monarchy in particular as the best government in the world. This was because the power of the crown was checked and limited by a system of customary rights and privileges held by different groups, classes, cities and provinces, that the king was bound to respect.

These constitutional limits to the king’s power did not necessarily include parliaments or the estates-general. He did not consider them part of the French constitution, though he did consider that the king should hold councils to decide issues, and that when it was expedient he should summon people from the cities and chief towns as well as his other ministers. He also considered that there were no legal limits to the power of the Crown. Nevertheless, despite the theoretical unlimited power of the monarchy, the king’s authority was limited in practices in three ways. Firstly, France was a religious, Christian country. If the king acted without regards to Christian, religious morality, he would be hated. The king was thus required to adhere to Christian morality and rule justly and not be a tyrant. If he ruled unjustly, and oppressed his people, then any ordinary parish priest had the right to rebuke him personally. Secondly, the parlements, the assemblies of lawyers who inspected legislation to see if it was constitutional, also limited the power of the Crown, though Seyssel did not state that they had the power to reject royal legislation. Lastly, the king was required to observe and maintain the ancient customs and laws of the kingdom, and only legislate to reform abuses. Thus, while in the theory the king possessed absolute power, in practice it was constrained by traditional French customary law, and the rights and privileges of provinces, cities and institutions. The importance of such customs in limiting the practical power of the monarchy was considerable. Even after theories of the constitution that restricted the power of the crown had been rejected in the 17th century, the practical power of the monarchy was still limited by the traditional laws and rights governing France, laws and rights that preserved the freedom of French citizens despite the theoretically unlimited power of the king.

Notes

  1. Richard Hooker, The Laws of Ecclesiastical Polity, cited in J.W. Allen, A History of Political Thought in the Sixteenth Century (London, Methuen 1957), p. 190.
  2. Hooker, Ecclesiastical Polity, in Allen, History of Political Thought, p. 190.
  3. Hooker, Ecclesiastical Polity, in Allen, History of Political Thought, p. 191.
  4. Hooker, Ecclesiastical Polity, in Allen, History of Political Thought, p. 191.
  5. Hooker, Ecclesiastical Polity, in Allen, History of Political Thought, p. 192.
  6. Hooker, Ecclesiastical Polity, in Allen, History of Political Thought, p. 192.
  7. Charles Merbury, A Brief Discourse of Royall Monarchie as of the best Common Weale, cited in Allen, History of Political Thought, p. 251.
  8. Allen, History of Political Thought, p. 259.
  9. Allen, History of Political Thought, p. 259.
  10. Richard Parsons/ Doleman, A Conference about the next Succession to the Crowne of England, 1594, cited in Allen, History of Political Thought, p. 261.
  11. Allen, History of Political Thought, p. 261.
  12. Sir Thomas Smith, De Republica Anglorum, cited in Allen, History of Political Thought, p. 264.
  13. Smith, De Republica Anglorum, cited in Allen, History of Political Thought, p. 264.
  14. Peter Wentworth, A Discourse Containing the Author’s Opinion of the True and Lawful Successor to Her Majestie, 1594, cited in Allen, History of Political Thought, p. 267.
  15. Wentworth, A Discourse, cited in Allen, History of Political Thought, p. 267.
  16. Allen, History of Political Thought, p. 267.
  17. Andrea Alciati, De Verborum Significationibus, 1529, cited in Allen, History of Political Thought, p. 281.
  18. H.G. Koenigsberger and George L. Mosse, Europe in the Sixteenth Century (Harlow, Longman 1971), p. 277.

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.

The Bible, Judaism and Christianity and the Origins of Democracy: Part 2

July 6, 2008

In the first part of this blog post I attempted to describe how, while ancient Israel certainly did not possess the institutions of the modern democratic state, nevertheless the revelation of the Bible established the moral values essential to democracy in the notions of human equality before the Lord, concern for human welfare and opposition to tyranny based on God’s justice. These values were maintained, practised and developed by Talmudic Judaism and Christianity. In this section I’m going to discuss how the early Church further developed these values to form the basis of the modern idea of the democratic state.

Adoption of Roman View of Popular Sovereignty By Early Christianity, but Only Secure Basis for Society God’s Justice and Concern for Humanity

The early Christians also adopted the view of contemporary Roman jurists and political philosophers that laws derived their authority through popular sovereignty. This view was developed particularly by Cicero, Seneca, the Cynics and the Stoics. This viewed the state, and the ability of each individual to participate in politics, as based on the common rationality in humanity and the universe. For the Roman lawyers, society was based on private, autonomous individuals, whose rights had to be respected and to whom justice was due because of their common humanity and rationality, regardless of how they were regarded or held by their fellow citizens, or their own ability to use force to enforce their will on others. 45 The early Church adopted the idea of human society as composed of rational creatures, and that the people were the true source of law. St. Augustine thus wrote in the City of God that ‘a populus is an assemblage of reasonable beings bound together by a common agreement as to the objects of their love; in order to discover the character of any society, we have only to observe what they love.’ 46 For Augustine, however, the most secure basis for society and law was the love of God and the divine command to love one’s neighbour amongst the people, rather than just human rationality itself. Thus St. Augustine declared in the Epistle to Volusianus

‘Here (in Jesus Christ’s summary of the Law and the prophets in the double command to love God and one’s neighbour) is the basis for an admirable commonwealth; for a society can neither be ideally founded nor maintained unless upon the basis and by the bond of faith and strong concord, when the object of love is the universal good which in its highest and truest character is God Himself, and when men love one another with complete sincerity in Him, and the ground of their love for one another is the love of Him from whose eyes they cannot conceal the spirit of their love.’ 47

After the fall of the Roman Empire, Roman Law and its precepts were replaced by customary law, until it was rediscovered by the Church’s canon lawyers in the 12th century. Nevertheless, the Church insisted that kings and princes had a duty to society as a whole through the maintenance of peace and justice, protecting the weak and encouraging and securing love and charity between people. This prepared European society for the revival of the doctrine of popular sovereignty when western European scholars returned to studying Roman Law. 48 The beginning of all Roman legal doctrine from the 12th century onwards was the statement by the Roman lawyer Ulpian, which reached western Europe through Justinian’s Digest, that ‘The prince’s decision has the force of law; inasmuch as by the royal law passed concerning his authority the people has invested him with the whole of its own authority and power.’ 49 Thus the Roman doctrine of popular sovereignty, which became the basis of modern western democracy through the political philosophy of John Locke, was adopted, preserved, and made the basis of western political theory again by Christianity.

Sole Purpose of Authority to Promote Peace and Harmony

Although the early Church recognised that human society required authority, philosophers and theologians such as St. Augustine and Theodoret believed that the sole rightful purpose for such authority was to maintain order and promote harmony and tranquillity. As rulers derived their authority ultimately from God, individuals motivated solely by a desire to rule, rather than promote justice, had no rightful authority. 50 similarly, while the Church itself was hierarchical and stressed obedience to authority, nevertheless it considered that its clergy should rule from a sense of service to the community, rather than a desire for personal power. St. Augustine stated that

‘Those who rule serve those whom they seem to command; for they rule not from a love of power but from a sense of duty – not because they love authority, but because they love mercy.’ 61

Indeed, St. Augustine considered that any member of the clergy who ruled purely from a desire a power had automatically disqualified himself from holding office, as ‘he who loves to govern rather than to do good is no bishop!’ 62

Origin of Separation of Church and State in St. Augustine

St. Augustine further prepared Western society for the separation of church and state that is a part of modern, secular democratic politics. Although the late Roman Empire saw itself very much as a Christian state, in which the church and religious belief and worship were essential institutions and included amongst the secular governmental institutions as a vital aspect of the state, a situation that continued in the new states of the Middle Ages that succeeded the Roman Empire, the early Church distinguished between itself and secular authority. St. Ambrose of Milan in the 4th century in his letters to the emperor Theodosius denied that secular officials had any authority over the Church, whose clergy and property were outside imperial authority.

St. Augustine developed this idea still further in the City of God. While he accepted that society and sovereignty derived from the people, he denied that justice was the ratio, the basis, of the state. 53 As justice derived from God and so lay beyond the state, so humanity’s duty to God superseded their duty to the state. The state may indeed possess and promote justice abundantly, but this was not the essential basis of the state. 54 Indeed, St. Augustine himself had a very negative view of the state. It was only justice that distinguished kingdoms from robbery on a massive scale, and asked ‘for what are robberies but little kingdoms?’ Humans, because of their sinful nature, hated the idea of their equality before God, and so tried to usurp God’s authority by imposing their will on their fellow humans. ‘Sinful man hates the equality of all men under God.’ It was because of his sinful nature that man, ‘as though he were God, loves to impose his own sovereignty upon his fellow men.’ The state existed to protect human society from such tyrants, but was not in itself fundamentally and absolutely just. 55 Furthermore, as states themselves were transient, rising and falling naturally during the course of history, they therefore required the instruction and education of the Church, which was separate from the state and eternal. Thus in the view of the historian Richard Fletcher, by drawing this distinction between church and state, and secular and religious authority St. Augustine ‘detached the state – any state, but in particular, of course, the Roman State – from the Christian community. Under his hands the Roman Empire became theological neutral.’ 56

Church’s Duty to Condemn Oppression, including that of Roman Emperors

Even before St. Augustine, the Church had considered its duty to criticise and punish tyranny and the abuse of power, even when such acts were ordered by the very highest authority, such as the emperor himself. In 390 the emperor Theodosius ordered a massacre of 7,000 citizens assembled at a circus in Thessalonica in reprisal for the murder of a member of the military garrison there. St. Ambrose of Milan strongly condemned the massacre, and in a letter to Theodosius warned him to repent or he would withhold Holy Communion from him. He stated ‘I dare not offer the sacrifice if you intend to be present. Is that which is not allowed after shedding the blood of one innocent person, allowed after shedding the blood of many? I do not think so.’ 57 Theodosius gave in to St. Ambrose’s moral authority, and duly did public penance for the atrocity in Milan cathedral, thus conceding the moral superiority of the Church over the state.

Early Church Doctrine therefore Opposed to Modern Ideas of Totalitarian State

While this prefigured the struggles between Church and state, and popes and emperors to assert their authority and superiority over the other during the Middle Ages, it also directly undermines the concept of the totalitarian state that was fundamental to the Fascist and Communist regimes of the 20th century. These were based on the Hegelian idea that the state represented the highest expression of the forces of history and the divine mind, and so the citizen owed the state his absolute allegiance. The early Church, by making a distinction between Church and state, and declaring that the state was not fundamentally just and that it was subordinate to God and the Church, directly contradicted and attacked the idea of such absolute states.

Membership of Early Church Open to Everyone, Regardless of Gender, Wealth or Nationality

The early Church also differed from contemporary Roman society in that it was open to all members of society, regardless of social rank and gender. In secular Roman society, philosophy and the Gnostic religions, including Gnostic Christianity, were largely confined to leisured aristocrats, while the Mystery religions similarly confined their membership to the initiated. Catholic Christianity, however, was open to anyone who wished to join it and share in the knowledge and worship of Christ. Arnobius Afer stated Christianity’s universal mission to all humanity in the words:

‘Does not He (Jesus Christ) free all alike who invites all alike: or does He thrust back or repel any one from the kindness of the Supreme who gives to all alike the power of coming to Him-to men of high rank, to the meanest slaves, to women, to boys? To all, he says, the fountain of life is open, and no one is hindered or kept back from drinking.’ 58 While pagan opponents of Christianity such as Celsus viewed it with contempt because the Church’s members came from the lower sections of Roman society without a formal education, Christian apologists such as Athenagoras considered it to be a positive aspect of Christianity, that it included people from such sections of society, who lived exemplary lives despite their lack of a formal education. Athenagoras stated

‘Among us (the Christians) you will find uneducated persons, and artisans, and old women, who, if they are unable in words to prove the benefit of our doctrine, yet by their deeds exhibit the benefit arising from the persuasion of its truth: they do not rehearse speeches, but exhibit good works; when struck, they do not strike again; when robbed they do not go to the law; they give to those that ask of them, and love their neighbours as themselves.’ 59

The early Church’s concern and mission to all sections of Roman society also led it to criticise the restriction of philosophy and intellectual activity to the aristocratic elites. For theologians and apologists such as Clement of Alexandria, everyone had the right to study the Gospel and philosophy, regardless of their social rank, gender or race:

‘Both slave and free must equally philosophise, whether male or female in sex … whether barbarian, Greek, slave, whether an old man, or a boy, or a woman … And we must admit that the same nature exists in every race, and the same virtue.’60

Advocacy of Freedom of Conscience in Early Church

As well as declaring that every person was capable of receiving the Gospel and so should have the freedom to join the Church, early Christian apologists, such as Tertullian, Lactantius and Hilary of Poitiers also argued for freedom of conscience in their criticisms of their persecution by the Roman state. The Church itself became increasingly repressive of rival faiths and controlled intellectual activity after its establishment as the official religion of the Roman Empire. Nevertheless, these arguments were revived during the Reformation by religious writers, theologians and politicians such as William Penn to create the religious tolerance that eventually resulted in the freedom of conscience that is a fundamental part of modern democratic liberty. 61

Furthermore, although the Church later did much to suppress individual freedom, it also did much to introduce the individual, subject view of the individual into political debate and discussion. In the ancient world, the wellbeing of the individual was frequently identified with that of society as a whole, with the effect that there was little discussion of the freedom of the individual as an ideal, rather than a political reality. However, Christianity introduced the idea of the importance of the individual through the doctrine of the fundamental sanctity of every human life. This was further developed in Western philosophy by the introduction by St. Augustine of the ‘first-person standpoint’ as a fundamental feature of the search for truth according to the historian Charles Taylor. 62 This concern for the subjective, first-person view is demonstrated most clearly by Augustine in his autobiography, The Confessions.

Election of Bishops in Early Christianity

The early Church was also democratic in that originally the bishops were elected by the whole of the Christian community of each diocese, both clergy and laypeople. 63 Cyprian states that this was the practice in almost all the provinces of the Roman Empire in the second century AD. 64 The idea and practice of popular suffrage, through which the people of a diocese could directly choose their bishop, was taken from general Roman electoral practice, such as in the election of secular magistrates. Jews similarly had adopted such electoral practices in the election of synagogue officials. Nevertheless, the Church differed from pagan society in that women and slaves also had a right to vote. 65 Eventually, however, the direct election of bishops declined along with secular democracy. There was opposition to it within the Church by leading members of the clergy, such as Origen. Origen criticised it for the bribery, corruption and factionalism in contemporary popular Episcopal elections that resulted in the appointment of unsuitable candidates who were more interested in power and the financial advantages rather than scholarship and truly ministering to the spiritual needs of their congregation. As a result of such electoral corruption, bishops were succeeded by their brothers or sons. 66 The gradual abolition of the direct election of bishops by the people helped to prevent the post becoming hereditary, and so allowed individuals from other sections of society, such as peasants, to be appointed to the post. 67

The election of the clergy by the congregation returned in Western Christianity with the establishment of the orders of pastors, doctors, elders and deacons by Jean Calvin in the Reformed Church, modelled on what he considered to be the governmental structure of the early Church as found in Scripture. This was remarkably democratic in that these clergy were elected, rather than appointed to office. 68 Although the practise of electing officials was confined to the Church, rather than recommended for society as a whole, nevertheless it was a major contribution to the emergence of democracy in Europe through the notion that ordinary Christians could elect their clergy, who then had the power to criticise the moral failings of their social superiors.

Early Church not Democratic, also Responsible for Intolerance and Oppression, but also Shares Common Democratic Values

The early Church’s conception of society as a family meant that it did not develop an idea of the complete freedom of the individual similar to that in modern political theory. Instead, the early Church viewed individual freedom as limited by the demands and requirements of the wider society of the Church, and the claims of others upon the individual’s love and service. As human liberty was also limited by the divine origin of authority, the Church and European society generally could become extremely repressive with the individual possessing very little freedom. 69 Indeed, the early Church was certainly not a democracy. It accepted the inequalities in wider Roman society, even slavery. 70 Historians have particularly criticised the early Church for its intolerance, and suppression and persecution of different faiths and minorities, such as heretics and Jews. 71 Nevertheless, despite the fact that the early Church was not democratic, historians have argued that it was concerned with all the same fundamental values of democracy, and creating a vital, existential frame of reference within which it was possible to achieve human happiness. 72

Christianity and democracy, it has been argued, are both based on the idea of objectively true, moral values. They both demand that freedom should be limited in the interests of equality and the general welfare of the community, and that equality should similarly be limited in the interests of social harmony and efficiency. They are also opposed to the fragmentation of human society produced by, for example, imperialism, racism, statism, provincialism and class warfare. Both Christianity and democracy also demand that humans be treated as ends in themselves, and not simply as means. In their view that the proper end of human conduct and effort should be the welfare of humanity, both Christianity and democracy are concerned with ordinary people and ‘the disinherited, and submerged groups in every society’. 73

Christianity and Democracy Both Opposed to Totalitarianism and Oppression

The early Church scholar, Albert C. Outler of Duke University, speaking at a conference of American academics, scholars and politicians from science, philosophy, the humanities, arts and Jewish and Christian religions in 1940 concerned with defending democracy from attack from Nazism, Fascism and Communism, declared that Christianity and democracy would remain separate. However, both Christianity and democracy had a strong interest in the international situation, and so in his view had much to offer each other. Indeed he concluded that democracy needed the support of religion, just as religion needed the support of democracy.

‘I do not see how a democratic order can be achieved or remain uncorrupted without a religious undergirding; I do not doubt that democratic order is the best political means to the end of a religious community. The cross-fertilization which a vital Christianity and a genuine democracy could achieve would greatly aid the cause of humanity and serve the Kingdom of God in this generation.’ 74

Fundamental Democratic Values derived from Bible and Hebrew-Christian Tradition, which Opposes Oppression and Tyranny

This concern with the fundamental values that are the basis of democracy is also shared with Judaism. It is derived from the witness of the Bible to God’s love and concern for humanity and the equal value of everyone, regardless of their race, sex or economic status, before the Lord. The Biblical scholar Millar Burrows, speaking at the 1940 conference attempting to combat the totalitarian attack on democracy, stated that the Bible’s respect for people’s rights and personalities, their common, human nature regardless of differences in gender, race and social rank, and the social responsibilities people have towards their fellows and to society as a whole, rather than in the development of specific societal, industrial or political institutions, were ‘the indispensable basis spiritual basis for a true and enduring democracy.’ 75 For Millar the Hebrew-Christian tradition’s great contribution to democracy lay in ‘its fundamental conception of the nature of man and of his relation to his Maker and to his fellow-man.’ 76 This concern is encapsulated in the Lord’s summary of the Mosaic Law linking one’s duty to love the Lord with one’s whole person and one’s neighbour as oneself. For Millar, the Hebrew-Christian conception of humanity and its relationship to God and its fellow people had made it the absolute opponent of tyrants throughout history, and made its continued presence in human history and society a threat to tyrannical regimes that they sought to eradicate.

‘It is this that has made the Old and New Testaments the deathless foes of all dictators in all subsequent ages. The righteous God of the Bible towers so far above all earthly powers that none of them counts for anything in His presence. The humblest man is equal to the mightiest prince before God. Moses can defy Pharaoh, Nathan can rebuke David, Elijah can challenge Ahab, Jeremiah can oppose Jehoiakim, the humble Maccabees can brave the terrible anger of the Macedonian despot. In the presence of the living God of Israel right always outweighs might. Tyranny can never tolerate the cultivation of the Hebrew-Christian tradition.’ 77

Conclusion: Democracy Recent, Created Partly through Biblical and Christian View of Society Based on God’s Justice and Concern for Humanity, which Still Provides Powerful Support for Democratic Politics

While democratic political and social institutions have taken millennia to emerge, they were created in part through the attempts of philosophers, theologians and ordinary men and women to establish a society based on the Biblical concern for a truly just society, based on God’s concern for humanity, their value as individuals, and their responsibilities to each other. This conception of a society based on God’s justice and humans’ responsibilities to the Lord and each other inspired prophets and saints to criticise, condemn and oppose tyrants, and from the Middle Ages onwards led people to attempt to create political institutions to restrain tyranny and promote freedom, a goal that eventually resulted in the emergence of political democracy in the West. Democracy is separate from Christianity, but linked to it through the fundamental concern of justice and humanity that are common to both, so that Christianity, although it has also supported tyrants, is also, and continues to be a vital source of support for democracy itself.

Notes

  1. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 453.
  2. St. Augustine, City of God, XIX:24, cited in Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 454.
  3. St. Augustine, Epistle to Volusianus 137:17, cited in Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 454.
  4. Edouard Meynial, ‘Roman Law’, in C.G. Crump and E.F. Jacob, The Legacy of the Middle Ages (Oxford, Clarendon 1926), p. 384.
  5. Edouard Meynial, ‘Roman Law’, in C.G. Crump and E.F. Jacob, The Legacy of the Middle Ages (Oxford, Clarendon 1926), p. 385.
  6. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 460.
  7. St. Augustine, City of God, XIX, xiv, cited in Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 467.
  8. St. Augustine, City of God, XIX, xiv, cited in Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 467.
  9. E.F. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 512.
  10. E.F. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 512.
  11. St. Augustine, cited in Vincent Carroll and David Shiflett, Christianity on Trial: Arguments against Anti-Religious Bigotry (San Francisco, Encounter Books 2002), p. 13.
  12. Richard Fletcher, The Barbarian Conversion: From Paganism to Christianity (New York, H. Holt & Co, 1998), p. 29, cited in Carroll and Shiflett, Christianity on Trial, p. 13.
  13. St. Ambrose of Milan, cited in Carroll and Shiflett, Christianity on Trial, p. 10.
  14. Arnobius Afer, Against the Heathen, in Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 462.
  15. Athenagoras, ‘A Plea for the Christians’ xi, in Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 461.
  16. Clement of Alexandria in Carroll and Shiflett, Christianity on Trial, p.2.
  17. Tertullian, cited in William Penn, Liberty of Conscience, in William Penn: The Peace of Europe, the Fruits of Solitude and other Writings, ed. Edwin B. Bronner (London, J.M Dent 1993), p. 179; Lactantius and Hilary, against Auxentius, cited in Penn, Liberty of Conscience, in Penn, Peace of Europe, ed. Bronner, p. 182.
  18. Charles Taylor, Sources of the Self: The Makings of the Modern Identity (Cambridge, Massachusetts, Harvard University Press 1989), pp. 131-33, cited in Carroll and Shiflett, Christianity on Trial, p. 14.
  19. Timothy Ware, The Orthodox Church (London, Penguin 1964), p. 299.
  20. Robin Lane Fox, Pagans and Christians in the Mediterranean World from the Second Century Ad to the Conversion of Constantine (London, Penguin 506).
  21. Lane Fox, Pagans and Christians, p. 508.
  22. Lane Fox, Pagans and Christians, p. 511.
  23. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 467.
  24. G.R. Elton, Reformation Europe 1517-1559 (London, Fontana 1963), pp. 226, 227.
  25. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 459.
  26. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 458.
  27. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 465-7.
  28. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 469-70.
  29. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 470.
  30. Outler, ‘The Patristic Christian Ethos and Democracy’, in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 470.
  31. Burrows, ‘Democracy in the Hebrew-Christian Tradition, Old and New Testaments’, in in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 412.
  32. Burrows, ‘Democracy in the Hebrew-Christian Tradition, Old and New Testaments’, in in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 412.
  33. Burrows, ‘Democracy in the Hebrew-Christian Tradition, Old and New Testaments’, in in Bryson and Finkelstein, eds., Science, Philosophy and Religion, p. 412.