Philosophy of Law in the Later Middle Ages

and Brian Tierney1

Social Philosophy and Policy Foundation, Bowling Green, OH, USA


Sections 13.1–3 and 13.5–6 were written by Anthony J. Lisska, and Section 13.4 was written by Brian Tierney. All translations are by the authors unless otherwise indicated.

13.1 Roger Bacon and John Duns Scotus

This chapter has a twofold purpose. First of all, it considers the development of natural law moral theory and jurisprudence in the work of certain philosophers who followed Thomas Aquinas (ca. 1226–1274), including Roger Bacon (1214–1294), John Duns Scotus (1274–1308), John of Paris (d. 1306), Marsilius of Padua (1280–1342), and William of Ockham (1280–1347). Second, there follows an elucidation of the development of natural human rights theory. This deals with recent work in the history of human rights theory, arguing that subjective human rights have an earlier appearance in Western jurisprudence than previous scholarship suggested.

Roger Bacon, possibly the most brilliant and independent of the Franciscan philosophers of the Middle Ages, is sometimes referred to as Doctor Mirabilis (the “Wonderful, or Marvelous, Doctor”). Greatly interested in the rise of natural philosophy occurring at this time,1 Bacon developed several philosophical themes that influenced his later Franciscan brothers. Bacon endorsed the primacy of theology in matters of philosophy. He argued that metaphysics should be placed under moral theory, and that moral theory was subsumed under theology. The moral philosophy of Aristotle was inadequate, and moral theory was only rendered sufficient within the context of Christian theology. Theological issues thus became directive for philosophical matters, a position later Franciscans would also find attractive to a greater or lesser degree. One theological proposition concerns Adam’s Fall through original sin; Bacon believed that the Fall so impaired human understanding that genuine philosophical knowledge in the Aristotelian sense was nearly impossible to attain (Sinkler 1998, 634). His principal work, the Opus Maius (The Major Work), was an encyclopedia of science.

Duns Scotus is, to be sure, the most serious metaphysical philosopher of the three. Born in Scotland, Scotus, often called the Doctor Subtilis (the “Subtle Doctor”) by historians of philosophy, exhibited such complicated arguments that most scholars agree that this appellation is by no means unmerited. Unlike Aquinas, Scotus did not write a commentary on the Politics of Aristotle. Scotus’ ethical writings are scattered among his other works, and he appears not to have written any lasting treatises dedicated to political issues.

In Scotus’ system, God’s will is preeminent. The will is the source of love, and hence divine love is the important principle in Scotus’ moral system. Given this, the first moral principle is that “God is to be loved” rather than “Good is to be done and evil avoided” (the latter of which Aquinas appropriated from Aristotle). The first two commandments of the Decalogue—and possibly the third commandment as well—are exemplifications of how divine love is to be followed by human persons. This is referred to by Scotus as the first tablet (tabula) of moral precepts. The metaphor here is the tablets on which Moses brought back the Ten Commandments from the mountaintop. Scotus argues that there is a category difference between the first three commandments on the one side of the tablet and the remaining seven, which he argues are on the second tablet. While the second tablet considers those actions that govern the actions of human beings among one another, the first tablet concerns a human person’s relationship and obligations to God. These commandments on the second tablet, hence, have a different justification than do those on the first tablet.

As Scotus sees the function of natural law, the role of love or will is paramount, and the role of reason is secondary.2 The first tablet, according to Scotus, followed necessarily from the fact that God exists. These precepts are independent of any divine command and cannot be changed or altered. The divine commandments in the second tablet are not self-evident (per se nota) to reason in the manner that the natural law principles of practical reason are in Aquinas’ account in his Summa Theologiae. On the contrary, their necessity follows from the fact that God commands them. Hence, this appears to be the beginning of a late medieval theory of divine prescriptivism, which holds that the validity of a moral precept depends fundamentally on the issuance of the command by God. Scotus is concerned about how much of the Decalogue is contained within a philosophical analysis of the natural law. He offers a distinction between those commandments that pertain strictly to the natural law and those that pertain to the natural law only in an extended fashion. In Ordinatio III (A Prescription III), Scotus writes:

First of all, we deny that all the commandments of the second table pertain strictly to the law of nature. Secondly, we admit that the first two commandments belong strictly to the law of nature. Thirdly, there is some doubt about the third commandment of the first table. Fourthly, we concede that all the commandments fall under the law of nature, but speaking broadly and in an extended sense. (Ordinatio III dist. 44; 294)

Scotus and Aquinas differ over which precepts found in the Decalogue pertain directly to the natural law and which precepts do not. For Aquinas, unlike Scotus, all of the commandments of the Decalogue pertain necessarily to the natural law, either in a self-evident manner or through a process of derivation by practical reason. Aquinas thinks that the commandments, as moral prescriptions, follow directly from a rational analysis of the content of human nature. Scotus, however, thinks that the rational analysis common to Aquinas’ rendition of moral principles is never a sufficient condition to justify the philosophical content of natural law prescriptions.

A biblical issue prompted much if not all of this discussion. Scotus understood the Old Testament texts to report occasions when God commanded persons to undertake actions directly at variance with one or more of the commandments. God’s command to Abraham to offer his only son, Isaac, as a sacrifice to God, is probably the best known of these cases, although other Old Testament passages that worried medieval theologians involved the polygamy of some of the Patriarchs and the fornication of Hosea (Ordinatio III Suppl. dist. 37; 198–9). Given Scotus’ analysis, God could grant dispensations to the commandments contained on the second tablet. In addition, those commandments prescribing moral duties and obligations to one’s neighbor have obligatory or moral force only because God prescribes them. The prescriptions are not based upon any dispositional property or relation found in human nature, which differs radically from the Aristotelian analysis put forward by Aquinas in his Summa Theologiae (see Chapter 12, Section 12.​4, of this volume). For on Aquinas’ account, the moral obligations found in the second tablet are derived necessarily from human nature. Just as God could not create a human person without the set of dispositional properties found in the human essence, so too God could not create a human person for whom moral obligations based on natural law do not apply. For Aquinas, good Aristotelian that he was, a dispensation from a moral rule could occur only when the circumstances had become altered to such a degree that the commandment did not apply. Scotus, on the other hand, denies that the only case for altering a moral command would be a change of circumstances. This position would apply to the precepts subsumed under the second tablet.

The difference between Scotus and Aquinas concerning the commandments is founded on the differing role of the intellect and the role of the will in their respective positions. In the Prima Secundae of Summa Theologiae, Aquinas writes as follows about the preeminence of the intellect:

It needs to be noted that, in the acts of the soul, the act that is essentially of one potency or habit, receives the form and species from the higher potency or habit; this is so because the inferior is ordained by the superior. Now it is obvious that, in a way, reason precedes the will, and reason ordains the act of the will: namely, insofar as the will tends to its object according to the order of reason, since the apprehensive power presents the object to the appetite. Therefore, the act by which the will tends toward some object or other that is proposed as good, in that it is ordained to the end by reason, is materially an act of the will, but formally is an act of the reason. (STh IaIIae.13.a.1)

While the importance of this distinction between the intellectualist and the voluntarist traditions has been downplayed in recent analysis of late medieval moral theory, nonetheless it appears that it is this distinction that forces Scotus to limit inclusion of the second tablet’s commandments into his theory of natural law strictly considered. Scotus writes that “the divine will, which is the primary rule of everything that is to be undertaken and of all actions, and the action of the divine will, from which is the primary or first rule for action, are the principal source of moral rectitude” (Rep. IV, d.46, q.4, n. 8). Ultimately, an act is right and an object is good by the very fact that God wills the act to be right or the object to be good. Scotus writes that “the divine will is the cause of good objects and therefore by the very fact that something is willed by God, that very object is good [ipsum est bonum]” (Rep. I, d.48, q.unica). Scotus appeals to recta ratio (“right reason”), but right reason appears to be an awareness that something is reasonable because God wills it.

As a Franciscan friar, Scotus was interested in a proper analysis of the right to property and how such rights fit in with the vow of poverty that Francis of Assisi considered important for his friars. From these writings by Scotus and others emerged a more modern position on individual rights theory. Two questions direct the analysis that Scotus provides in Ordinatio IV: What is the justification for a person acquiring property in the first place? How can property, once obtained, be given or transferred to another person?

Scotus developed a response to the first query in the form of six conclusions. Developing a philosophical rationale for the requirements of poverty advocated by his spiritual father, Francis of Assisi, Scotus argued that in the state of original justice, which was before the Fall of Adam and Eve, no one held any property whatsoever.3 On this matter, Scotus writes the following to support his first conclusion: “In the state of innocence, neither divine nor natural law provided for distinct ownership of property; on the contrary, everything was common” (Ordinatio IV, 220). In the Acts of the Apostles, one reads that “no one of them claimed anything as his own; rather, all things were held in common” (Acts 4:32). Scotus puts forward his second conclusion: “Our second conclusion is that after the Fall of man, this law of nature of holding all things in common was revoked” (Ordinatio IV, 220). Scotus then proceeds with the third conclusion: “Once this natural law precept of having all in common was revoked, and thus permission was given to appropriate and divide up what had been common, there was still no actual division imposed by either divine or natural law” (ibid., 221). He next argues that the following fourth conclusion is entailed by the third: “It would follow from this that the first division of property was brought about by some positive legislation. To see why this division was just, therefore, we must look at why such a positive law would be just” (Ordinatio IV dist. 15, q. 2; 221). Scotus then articulates for his fifth conclusion what we might take to be a form of a consent theory of the origin of political authority:

Political authority, however, which is exercised over those outside [the family], whether it resides in one person or in a community, can be just by common consent and election on the part of the community […]. [This] has to do with those who live together, even though there is no consanguinity or close relationship between them. Thus, if some outsiders banded together to build a city or live in one, seeing that they could not be well governed without some form of authority, they could have amicably agreed to commit their community to one person or to a group, and if to one person, to him alone and to a successor who would be chosen as he was, or to him and his posterity. And both of these forms of political authority are just, because one person can justly submit himself to another or to a community in those things which are not against the law of God and as regards which he can be guided better by the person or persons to whom he has submitted or subjected himself than he could by himself. Hence, we have here all that is required to pass a just law, because it would be promulgated by one who possesses prudence either in himself or in his counselors and enjoys authority in one of the several ways mentioned in this conclusion. (Ordinatio IV dist. 15, q. 2; 221–2)

This fifth conclusion is important in understanding Scotus’ political theory and his justification for positive law. His analysis of a “just law” upholds procedural rather than substantive natural law; a law is just only if a prudent person in power exercises due authority and promulgates the ruling.4 Scotus’ sixth conclusion is: “The first division of ownership could have been just by reason of some just positive law passed by the father or the regent ruling justly or by a community ruling or regulating justly, and this is probably how it was done” (Ordinatio IV dist. 15, q. 2; 222).

The fifth conclusion concerning political authority expounded by Scotus is justly famous in the development of Western political theory. Harris argues:

Scotus is important in the history of political science as one of the pioneers of modern social theory. His doctrines bear a strong resemblance to the later teaching of Locke. Scotus’ account of the social contract is a philosophic analysis of the origin of society. Society, he held, was naturally organized into family groups; but when paternal authority was unable to enforce order, political authority was constituted by the people. Accordingly all political authority is derived from the consent of the governed. (Harris 1937, 282)

Scotus next responds to his second query, which concerns the legitimate transfer of property. In opposition to Aquinas, Scotus holds that private property is not a matter of natural law but is dependent on positive law. Transfer of property is thus reducible to someone having the proper authority to carry out such an activity. This analysis also upholds procedural natural law. Harris provides the following account of the importance of Scotus’ treatment of property issues:

Concern for the public welfare is the basis of Scotus’ economic doctrines. He regarded private property as a product of positive rather than natural law and insisted that property must not be administered in a way detrimental to the community. He formulated principles for the equitable employment of various commercial contracts, and while he accepted the current concept of a just price he recognized the social importance of a merchant class. (Ibid., 75)

Scotus argues that the question of happiness is determined ultimately by a divine principle. This is in opposition to the Aristotelian analysis adopted by Aquinas that happiness—eudaimonia—results in the fully functioning person developing the dispositional human properties. In effect, Scotus is moving beyond what he takes to be the philosophical rationalism in moral theory expounded by Aquinas; Scotus emphasizes the role of divine love and divine will. This emphasis is further developed by his Franciscan successor William of Ockham (see Sections 13.3 and 13.4 below).

13.2 John of Paris and Marsilius of Padua

Brief mention should be made of the Dominican friar John of Paris (d. 1306), who developed the concepts of his religious brother Aquinas. John of Paris can be regarded as a Dominican respondent to the early claims in the poverty debates mustered by the Franciscans.5 It is unclear historically how any rivalry between the Dominicans and the Franciscans contributed to these sometimes heated discussions. Certainly the respective founders of these two highly regarded mendicant orders of friars in the early thirteenth century, Dominic de Guzman and Francis of Assisi, knew and respected one another. Furthermore, Aquinas and Bonaventure, while often offering differing theological positions, held academic chairs at the University of Paris and teamed together in the seemingly constant battles with secularists and with the faculty of arts at Paris. Whatever the state of these intramural debates, John of Paris wrote a series of essays entitled On Royal and Papal Power (ca. 1302) that exerted some degree of influence in the murky political and legal situations of the time, especially those dealing with debates between the papacy and various European monarchs.

John of Paris developed what has become known as the “Dominican position” regarding matters of poverty and rights to ownership and use of property. These concepts as spelled out by John are rooted in the texts of Aquinas. In his Summa Theologiae, Aquinas argued that the private ownership of a modicum of material things beyond the barest necessities is part of the natural law in the present temporal circumstances. Ownership is not reducible only to a positive right as Scotus claimed. Since Aquinas adopted the theological maxim that “grace perfects nature,” his analysis of the natural world was always that it is a good, especially since it results from the creative forces of an all good God. There was, for Aquinas, a “truth in things,” which is called “ontological truth.” This means that things correspond to divine ideas in God’s mind. Since Aquinas argued that “Truth, Being, and Goodness” are convertible—that is, they are reducible to each other—he believed that the material world possesses an innate dimension of goodness because it had an innate dimension of truth and being. Given this account of the material world and its contents, it is not surprising that Aquinas would hold that it is natural for human beings to own and use a modicum of these contents and that a proper use is a reflection of the glory of divine wisdom. It is here that the Dominicans and the Franciscans parted company on the issues of the ownership and use of property.

John of Paris defended Aquinas’ view on property. Like Aquinas, John argued in On Royal and Papal Power that the interpretation of absolute poverty defended by the Franciscans was at least muddled conceptually if not outrightly false. John based his analysis of private property on the Aristotelian theory of matter and form as the fundamental principles determining things in the external world. Simply put, matter, as the Aristotelian principle of potentiality, is brought into act by form. What is true of the natural world, John argues, also applies to the world of human labor. Hence, material elements that are potentially products of manufacture or artifacts, only become artifacts by the agency of human persons. The importance of human agency in exercising a craft—what Aquinas called an art, or “productive reason”—justifies the ownership by the craftsperson of the object produced.6 Hence, there is a “natural” reason and justification why one attains ownership over material things in the world.

In the first quarter of the fourteenth century, Pope John XXII, in his battle with the Franciscans in general and William of Ockham in particular, sided with the Dominican position as articulated by John of Paris. One might surmise a bit of self-interest on the part of Pope John in his resolution of these issues. If the radical Franciscan position was correct and if a necessary condition for Christian perfection and purity was to emulate both Jesus (imitatio Christi) and the apostles in the renunciation of property ownership, then if the Franciscans attributed the ownership of their material goods to the pope, by definition the pope was a religious inferior.7 It is not difficult to see why an argumentative pontiff on the papal throne, as John XXII certainly was, would disagree vehemently with the Franciscans and side with the Dominicans.

In addition, John, following Aquinas, claims that the common or public good has its source in the natural law and that human persons are, by nature, social beings. It follows, then, that living in community is prior to any common agreement among members of a community either about living together in community or in the establishment of rights and duties. Thus, for John of Paris, the role of the community and the public good, as derivable from the natural law and not dependent wholly on the positive law, are aspects of a theory of ethical naturalism (i.e., the metaethical theory holding that moral terms are reducible to some natural fact in the world), as they were for his philosophical forebears Aristotle and Aquinas.

An important legal and political theorist of the early-fourteenth century, Marsilius of Padua (1280–1342), often referred to as “Marsiglio,” is best known for his The Defender of the Peace (Defensor Pacis), published in 1324. Educated both at Padua and Paris, Marsilius appears not to have been a religious cleric, although he was a canon of the Cathedral at Padua. First studying medicine, Marsilius journeyed to Paris and studied with the faculty of arts where he became interested in the pressing philosophical and theological issues connected with political problems. There is some evidence that Marsilius served briefly as rector of the University of Paris. Along with John of Jandun (1285–1328), Marsilius became a member of the court of Ludwig of Bavaria (d. 1347), who had himself crowned as the Holy Roman Emperor in direct opposition to the wishes of the Pope John XXII. Pope John was in extended conflict with both Marsilius and John of Paris, and later with William of Ockham. All three, as well as the emperor, were excommunicated. A theme that runs through the writings of Marsilius is the placing of limits on papal power; he argued that papal power is subject to and derived from the secular power rooted in the body politic.

The concrete political situation of the early-fourteenth-century Italian city-states appears to be the backdrop against which Marsilius wrote The Defender of the Peace. Early in this text, he writes, “the fruits of peace or tranquility, then, are the greatest goods” (The Defender of the Peace, Discourse I.1; 5). Appalled with the lack of peace and concord then extant in the city-states, Marsilius judged that papal interference contributed causally to this political unrest. Hence, his disquisition is a bold attempt to place limits on what he perceived to be the theoretical and practical excesses of papal sovereignty.8

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