Corporatism, Individualism, and Consent: Locke and Premodern Thought

Chapter 4
Corporatism, Individualism, and Consent: Locke and Premodern Thought

Brian Tierney

Ever since Gierke published his massive work on medieval concepts of corporatism and community this area of thought has interested historians of political theory. Reflection on medieval corporatism can lead to radically opposed views concerning a major problem in the field—the degree of continuity (or discontinuity) between medieval and early modern constitutional thought.¹ Some see the medieval law of corporation structure as a necessary foundation for seventeenth-century theories of the state. James Brundage, for instance, in his valuable book on medieval canon law, observed that the basic elements of parliamentary constitutionalism emerged “out of the questions and answers that medieval corporation theory suggested.”² But others see a sharp contrast between medieval communitarianism and the “atomistic individualism” that they discern in the age of Hobbes and Locke. One scholar can write that “some of the main configurations of political thought in modern Europe were laid down before 1450.”³ Another maintains that “human consciousness underwent a radical transformation” in the seventeenth century and that this led on to a “decisive break” with premodern ideas about law and government.⁴

In these discussions the work of John Locke holds a pivotal place. His doctrine of natural law continued a late medieval tradition of thought⁵ but his political ideas—unlike those of Hobbes—found a wide acceptance in the age of the Enlightenment, not least among the American founding fathers. To understand the development from medieval to modern it is therefore especially important to place Locke correctly in relation to earlier traditions of thought. In the following discussion I want to consider a particular argument for discontinuity that seems to me questionable—the assertion that Locke made a sharp break with medieval ways of thinking when he substituted the idea of “individualized consent” to government for the “corporate consent” of medieval thinkers. A related theme to be considered concerns Locke’s teaching about a primordial state of nature from which political societies emerged by individual consent. This too has been seen by some scholars as an innovatory doctrine.

The argument about individual and corporate consent has been expressed in various ways by scholars writing from different standpoints. Cary Nederman, arguing against the view that fifteenth-century conciliarism significantly influenced later constitutional thought, observed that modern constitutionalism is characterized by “individualized free consent to rulers and their official deeds,” and that by no stretch of the imagination could a medieval election be understood in this way—“it was rather a ‘unanimous’ act of the community, the collectivity speaking with one voice.”6 James Tully found a radical new individualism in Locke’s teaching that individuals in a state of nature could act as executors of the law of nature. He concluded from this that, for Locke, “political power is a natural property of individuals” and that Locke “thus repudiates 500 years of elite political holism.”⁷ Addressing the same theme in a broader context and from a communitarian standpoint, Charles Taylor discussed the “new political atomism” of Locke and his contemporaries. In earlier thought, Taylor wrote, it was understood that a community could establish a government by consent, but the existence of the community was taken for granted. In the seventeenth century, on the other hand, the existence of the community itself had to be explained by the prior consent of individuals.⁸

In a particularly interesting study, Patrick Riley mentioned the existence of medieval ideas about contracts between rulers and peoples, but he too found a break with the past in early modern theories of individual consent that emphasized the artificial nature of political society and government. With a reference to Locke, he wrote that, in the new way of thinking, “political obligations are derivative from the consent of those who create a government (sometimes a society),” so that legitimate government was formed by “a voluntary individual act, or rather a concatenation of voluntary individual acts.”9

The argument that Lockean individual consent made a break with medieval concepts of community or corporate consent has been accepted even by scholars who maintain that, in other respects, there were significant continuities between medieval and early modern thought. Scott Swanson traced in detail the early sources of Locke’s doctrine about a natural right to the means of subsistence from the twelfth century onward but he too saw an innovation in Locke’s theory of consent. Whereas Locke required the consent of individual persons, Swanson wrote, in the medieval writers the notion of consent was more corporate.¹⁰ Paul Sigmund, comparing Nicholas Cusanus with Locke, similarly wrote that, in the earlier work, consent was given “by corporate groups rather than by individuals in a state of nature as in Locke.”¹¹ Francis Oakley made the same point in several of his articles that refer to the corporatism or holism of medieval thought. There was indeed a medieval legacy of popular sovereignty, contract and consent, Oakley noted (and he himself has written excellently about it), but the consent was the consent of communities, not the assent of a “concatenation of free and equal individuals.” The new strain of individualism, according to this argument, was first introduced into the constitutional tradition by Locke.¹²

Michael Zuckert added a new strand of thought to the discussion by emphasizing the other theme that I mentioned, Locke’s teaching concerning the existence of a prepolitical state of nature. Like Tully, he emphasized Locke’s argument that the right of individuals to execute the law of nature was the source of political power and so made a major break with preceding ideas. But Zuckert went further. He argued that the very existence of a Lockean state of nature was alien to premodern thought. For Locke a state of nature was a prepolitical state of affairs where humans were ruled only by the law of nature; but, Zuckert argued, medieval writers could not have conceived of such a condition. In their world of thought a people living under natural law would necessarily have been living in a political society because “natural law mandated and provided for political life.” Hence, if we could ask Thomas Aquinas about the state of nature, “Thomas would reply that there is no such thing; government is natural.” So here again Locke made a sharp break with premodern ways of thought.13 The argument is evidently complementary to the one about community consent and individual consent that we have considered. If political communities had always been natural to man—if their existence had always been taken for granted— then no one could have conceived of them as created by the will and artifice of consenting individuals as in Locke.

The views considered so far are not always in agreement with one another and not always transparent in themselves. The discussions about will and consent refer sometimes to the institution of a political society, sometimes to the establishment of a government, sometimes to both, and it is not always clear which meaning is intended. The distinction between individual consent and corporate consent ignores Locke’s own treatment of corporate consent (to be considered later). And it is indeed difficult to understand what is meant by the statement that modern constitutionalism is characterized by “individualized free consent to rulers and their deeds.” Modern tax protesters who claim a right of individualized consent to tax laws get short shrift from the judges.

In spite of these difficulties, three specific lines of argument that I want to criticize emerge from the views that have been considered:

1. that in medieval thought political society was always conceived of as natural and so not as a work of human artifice brought into existence by individual acts of choice and consent in a prepolitical state of nature;

2. that medieval corporate communities were conceived of in a holistic fashion that contrasts with Locke’s individualism;

3. that Locke made a major break with the past in attributing political power to individuals. The first two arguments seem to me mistaken, the last one questionable.

The State of Nature and Human Artifice

I want first to consider the fundamental argument that, for Locke, political society was a work of human artifice, for medievals a product of nature and natural law, and that the two ways of thinking were incompatible with one another. At the outset there is a preliminary point to be made about the social and religious contexts of the early modern and medieval worlds. Historians of social contract theories often note that, in the seventeenth century, many separatist religious communities were being formed by the voluntary association of individuals and that, by analogy, the political community could readily be conceived of in the same way. In an influential article, Höpfl and Thompson made this point by quoting the seventeenth-century separatist Henry Jacob.14 He wrote that a church was constituted:

By a free mutuall consent of Believers joyning and covenanting to live as members of a holy society together … By such free mutuall consent also all Civil perfect Corporations did first begin.

The point often overlooked is that the key words are the last ones. For centuries past individuals had been coming together, joining with one another to form an endless variety of religious and secular corporate communities— communes, guilds, universities, collegiate churches, monastic houses, confraternities. In the case of a commune a governing authority was brought into existence by “conjuration,” by a “swearing together” of the individual members. And in medieval thought long before the seventeenth century the corporation was often taken as a model for large-scale government in church and state.¹⁵ In such a world it was not difficult to envisage a first emergence of lawful government from a prepolitical condition by a voluntary association or consent of individuals.

The opposite point of view, developed by Zuckert, that the Lockean idea of a prepolitical state was alien to premodern thought, goes back to some remarks of Leo Strauss. He observed that Locke’s entire political teaching assumed the existence of a state of nature but added that this assumption was “wholly alien to the Bible.” And that it “made a break … with the traditional natural law doctrine.” Strauss’s remark has given rise to some odd formulations among later writers who were influenced by his work. According to Walter Berns the very idea of natural rights in a state of nature is incompatible with Christian thought because the idea of a state of nature itself is alien to the Bible. Ernest Fortin, also discussing the idea of a state of nature, wrote that, “If anything its implications are profoundly atheistic.”16

On the face of it this seems merely wrong-headed. Pufendorf, for instance, wrote at some length about the state of nature and so far no one has accused him of being an atheist. Zuckert’s argument that earlier writers could not envisage a prepolitical state of nature because they took for granted the “naturalness” of political life seems more reasonable. This argument, however, ignores the whole Augustinian strain in medieval thought. For Augustine, government was not natural to man but was rather a human contrivance made necessary by the criminal proclivities of fallen humanity—a view echoed by Locke when he wrote that political society was made necessary by “the corruption and wickedness of degenerate men.” Even applied to medieval Aristotelians, Zuckert’s argument about a state of nature (or lack of it) seems flawed—it involves an equivocation in the use of the word nature that was already pointed out by Pufendorf, writing a few years before Locke. In criticizing Hobbes, Pufendorf defended his own use of the term “state of nature” by explaining that the phrase could have two meanings; it could refer either to a primordial condition of humankind or to the perfected society of the polis, the kind of society in which human nature could best flourish.¹⁷ Evidently medieval Aristotelians did not believe that a prepolitical condition was natural in the second sense of the term. But then neither did Locke. His “natural” meant primordial, and for him too, men could find “peace, safety and public good” only in a political society. He could even write that it was “natural” for people to “put themselves under a Frame of Government.”¹⁸ Moreover, as Pufendorf went on to argue, the idea that a political society was natural in the Aristotelian sense did not preclude the possibility that it could be brought into existence only by human will and choice.¹⁹ Zuckert’s argument assumes that, since natural law mandated political life, believers in natural law must always have lived in political communities. But, already in the thirteenth century, Giles of Rome had pointed out that, although man was by nature a political animal, many people did not in fact live in political societies.20 Aristotle himself, of course, took this for granted.

Medieval people were familiar with the idea of a prepolitical state of nature from various sources; from classical myths of a Golden Age and a subsequent decline into wickedness that could be associated with the Christian story of the Garden of Eden; from Augustine’s Two Cities; and from Cicero’s account of government as first instituted by agreement among people who had previously lived a scattered life. And, even if the state of nature as Locke understood the term—a time when people lived with only the law of nature to guide them— was alien to the Bible, it was not alien to that other great fount of natural law thinking, the Decretum of Gratian. In that work generations of law students read that natural law was coeval with the human race and that humans lived by that law alone until the introduction of customary laws. According to Gratian’s account this happened at the time when Cain built a city and “people gathered together as one and began to live together.”²¹ An influential text of the Decretum mentioned several characteristics of this primordial law of nature that were still commonly discussed in the seventeenth century; they included a right of self-defense, common ownership of property and universal freedom.²²

To continue the argument, we need to consider some of the ways in which medieval people envisaged the emergence of government from this primordial state of affairs. Gratian wrote that natural law had existed “from the beginning of the rational creature.” His commentators often emphasized the word rational and wrote that natural law was a law of reason or a force of reason in man. So, from the beginning of the juristic renaissance of the twelfth century, natural law was understood as referring both to a primordial condition of humankind and to the rational faculty that showed humans how to escape from that condition and achieve a better way of life. How this came about was described by one of the first commentators on Gratian, the canonist Rufinus (c. 1160). He wrote that after the Fall humans lived a scattered and savage life, but that they still retained enough of their natural faculties to seek for themselves a way of life better than that of the brute beasts. So they came together and entered into “covenants of concord” and “secure compacts” with one other, and by thus agreeing together they established the principles of a common law, the ius gentium.²³ The text provides an early account of humans emerging from a state of nature. The existence of a lawful society was not taken for granted; it had to be created by covenants and compacts entered into by individuals.

In mid-thirteenth century Hostiensis also wrote that the descendants of Adam lived according to the law of nature until Cain built his city. About the same time the canonist pope, Innocent IV, speculated about how government could have come to exist in the first place given that all men were by nature free. His text is interesting because he mentioned the three possibilities that were still being debated in the seventeenth century—direct divine right, patriarchy, and popular election.24

Among the theologians, Duns Scotus was much concerned with the principle of individuation in his metaphysics and he also presented an account of political authority as established by individual persons. At one point in his commentary on the Sentences he distinguished between despotic or tyrannical rule and “political or natural” rule;²⁵ but in another discussion he explained that the “natural” political rule was brought into existence by human choice. Duns distinguished here between paternal and political rulership, arguing that paternal authority was established by natural law but that political authority was derived from election and consent. Then he presented an interesting thought experiment to explain the origin of government. He envisaged a group of unrelated strangers coming together to build a city. There would be no pre-existing form of government among them, neither patriarchal nor political, but they could consent together to submit themselves either to the whole community or to a ruler whom they would elect.²⁶ Here again the argument began from a collection of individuals who came together voluntarily to establish a political authority. At a later point, referring to legislation on property rights, Duns wrote, “I suppose in an act of the community the consent of each one to be included,” since each had agreed to be bound by the just laws of the community.²⁷

Early in the fourteenth century the Dominican master-general Hervaeus Natalis also considered the origin of government. He first distinguished between different kinds of authority rather in the manner of Locke at the beginning of the Second Treatise. “We are not speaking of private jurisdiction,” Hervaeus wrote, “such as a father has over his son, a master over his slave, a husband over his wife, but of political or public jurisdiction.” This jurisdiction did not derive its existence from the very nature of things because by nature all were equal; it could not arise from violent usurpation because violent possession conferred no right; and so, the author concluded, licit jurisdiction could be derived only from consent.28 Hervaeus did not discuss corporate or individual consent here, but in another work he wrote that “no person or community” could rightly be obliged except by their own consent.²⁹ Hervaeus also distinguished between the institution of political power as such and its exercise by a ruler. “To institute such a power,” he wrote, “is to ordain … that there be a power in the commonwealth such that it can legislate and judge.” This power, he explained, could be brought into existence before it was conferred on a ruler.³⁰

William of Ockham envisaged a “middle time” after the Fall but before the institution of government and private property—his version of a state of nature.³¹ In typical medieval fashion he held that legitimate government must be based on consent because “by nature all mortals (are) born free and not subject to anyone else,” and “only by an express act of will can one subject oneself to the rule of another.”³² Ockham usually wrote that government was instituted by a community or populus but, in keeping with the tenets of his nominalist philosophy, he asserted emphatically that any community consisted only of the individuals who composed it.³³ He also held, arguing from a text of canonistic corporation law, that no community could confer absolute power on a ruler because the community itself did not have absolute power over its individual members.³⁴

Evidently, even after Aristotle’s Politics had become known in the West, medieval thinkers did not simply abandon the ideas about a conventional origin of political authority that they had derived from other ancient sources. Instead they wove those ideas into new syntheses, often insisting that the actual creation of a political society was a work of human artifice. Giles of Rome wrote that, although a political society or civitas was natural to man in one sense, it could be brought into existence only by human industry and effort and art. He explained that the “nature” involved was not ineluctable; the polis was not natural in the same way that it was natural for fire to heat or for a stone to fall.35 Marsilius of Padua echoed Cicero when he described how “men originally came together to establish a civil community and civil law.”³⁶ John of Paris quoted both Aristotle and Cicero in discussing the origin of a political community. He first wrote that “man is a civil and political animal, as is said in Book I of the Politics,” but then added that humans at first lived a scattered life and had to be brought together “by persuasive arguments” to live “an ordered life in common under one ruler, as Cicero says.”³⁷

Other writers emphasized the role of human reason and will in instituting authority either in a ruler or in a community. Durand of St Pourçain explained that God himself did not directly appoint kings over men (or only very rarely); instead he gave humans reason through which they could discern the necessity and fittingness of instituting rulers.³⁸ In discussing the origin of monarchy, Engelbert of Admont gave examples from nature. The lion was king of the beasts, the eagle king of the birds. One might expect the argument to conclude that, in the same way, some pre-eminent man was king over all the others. But in fact Engelbert wrote that art and reason imitate nature and that in human society it was through art and reason that kingdoms and kings were instituted.³⁹ A fourteenth-century Tractatus de Legibus argued that if one man excelled all the others it would be natural that he be honored, but not that all be bound to obey him. The institution of a ruling authority, this author insisted, was “not natural but civil.”⁴⁰ Similarly, Buridan wrote that, although humans had a natural inclination to live in a political society the actual institution of a commonwealth was by “art and choice” or “art and will.”41 He argued in effect that the state was a work of artifice—created by reason reflecting on the needs of human nature. Buridan’s contemporary, the great jurist Bartolus, referred to the community of a city-state as an “artificial man.”⁴² The view that Locke broke with medieval ways of thinking by treating the state as an artificial construct clearly needs some qualification.

Corporatism, Holism, and Consent

So far I have argued that we can find in preLockean sources examples of individual consent⁴³ and of political society conceived of as a work of human artifice. We need next to recall that Locke’s own doctrine of consent was not entirely individualistic. Anthony Black has indeed observed that Locke’s doctrine on the formation of a political community can be read as a “general application of corporation theory” that Locke knew from Grotius and Pufendorf.⁴⁴