The Rise of Scholastic Legal Philosophy

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


All translations are by the author unless otherwise indicated.

11.1 Intellectual Sources of the Scholastic Tradition

11.1.1 The Main Sources for Philosophy and Theology: A Sketch

The main sources for medieval philosophy and theology fall into two groups: those which were in use by the twelfth century and, in most cases, had been available since 800 or earlier (I shall call these the “old sources”), and those which became available in the years from approximately 1130 to 1280 (I shall call these the “new sources”).

The bulkiest part of the old sources consisted of the works of the church fathers (and, of course, the Bible). The writings of most of the Latin Fathers, and of some of the Greek Fathers in Latin translation, were widely copied from the beginning of the Middle Ages. Augustine, in particular, was studied carefully and had an enormous, though varied, influence. Patristic works, however, were not used as school textbooks. Rather, the school curriculum in the period up to the twelfth century was based on the late-ancient model of the seven liberal arts: the three verbal arts of the “trivium” (grammar, logic, and rhetoric), and the four mathematical arts of the “quadrivium” (arithmetic, geometry, music, and astronomy). In one of the most popular textbooks, the allegorical prosimetrum On the Marriage of Mercury and Philology (De Nuptiis Mercurii et Philologiae), written by a fifth-century pagan, Martianus Capella, each of these arts is briefly expounded. For the most part, however, the emphasis in the schools right through to the end of the twelfth century was on the trivium. Each of the three verbal arts had its very restricted number of ancient or late-ancient textbooks. For grammar, there were the works of Donatus and Priscian; rhetoric was studied on the basis of Cicero’s On Invention (De Inventione) and the pseudo-Ciceronian Rhetoric to Herennius (Rhetorica ad Herennium). For logic, there were Porphyry’s Introduction (Isagoge) and Aristotle’s Categories and On Interpretation, translated by Boethius (d. ca. 524), along with Boethius’ commentaries and his own logical textbooks. In addition, there were three philosophical texts that were often studied (along with the work of classical poets) as part of instruction in grammar: part of Plato’s Timaeus in the translation by Calcidius and with his commentary, Boethius’ Consolation of Philosophy, and Macrobius’ commentary on Cicero’s Dream of Scipio. All three works were important in transmitting Platonic doctrines: Macrobius wasinfluenced by Plotinus; and Boethius, although a Christian, writes in a manner which, at least superficially, could be that of a pagan Platonist.

Theology was not studied as such before 1100, although commentaries were written on the Bible, and doctrinal controversies (including one example discussed in Section 11.2 below) stimulated thinking about theological issues. Early in the twelfth century, scholars working at Laon and then at Paris began thinking more systematically about Christian doctrine. Beginning from the apparently contradictory texts in the Bible, they began to debate over the underlying doctrinal issues and to arrange their teaching systematically. By the later-twelfth century, theological questions were being discussed with immense logical sophistication; and although, in one sense, the Bible was the textbook for theology, some thinkers also turned to Boethius’ short theological treatises as their guide.

The earliest of the new sources were the remaining logical works (logica nova) of Aristotle, which began to be read from around 1130 onward. Gradually, almost all the rest of Aristotle’s works became available in Latin translation. The increasing availability of these new texts coincided with the development of the loosely arranged schools of Paris into a university, where students began in the arts faculty and then a few went on to a higher faculty: theology, (canon) law, or medicine. Oxford, the other great university north of the Alps in the thirteenth century, had a broadly similar structure. Although there were bans on the study of Aristotle’s non-logical works in the arts faculty of Paris in the early-thirteenth century, by the middle of the century an Aristotelian curriculum had been adopted there and in Oxford. Linked to the newly available Aristotelian texts were Latin translations of the commentaries produced by the two greatest Aristotelians of the Islamic world: the eleventh-century Persian Avicenna, and the twelfth-century Cordoban Averroes (see Chapter 9 of this volume). Aristotle’s non-logical works had been available in the Arab world long before they were known in the Latin West and, while the translations of some Aristotelian texts from the Arabic were soon replaced by versions from the Greek, Avicenna and Averroes were central influences on how Aristotle was understood. Indeed, in the early-thirteenth century, readers of Aristotle were far more prone to reflect Avicennian views than anything authentically Aristotelian. By contrast, there was little interest in any Arab philosophical works other than commentaries (or texts related to commentary); but the Jewish philosopher Maimonides’ Guide of the Perplexed (written in Arabic) was translated and read by Latin theologians. Knowledge of Plato’s work hardly progressed beyond the Timaeus, but some new neo-Platonic material became available, such as the Book on Causes (Liber de Causis), an adapted version of the beginning of Proclus’ Elements of Theology, which was being read even in the late-twelfth century.

Christian doctrine was studied in the theology faculties by students who had already completed an arts course or its equivalent. There were two textbooks: the Bible and the Sentences, which Peter of Lombard wrote around 1155–1158. The Sentences drew together the work of the early Parisian theological schools and produced an orthodox and systematic discussion of all the main points of doctrine, based on extracts from the church fathers.

11.1.2 Sources for the Philosophy of Law

In this array there are not, as it turns out, many obvious sources for the philosophy of law. Among the old sources, there are some passages in the Bible and in the works of Augustine, Jerome, Ambrose, and other church fathers (cf. Section 11.3.2 below). The Etymologiae, a dictionary/encyclopedia by one of the latest Fathers, the seventh-century Isidore, Bishop of Seville, contains a section on law (V.1–27), although it was used far more by canon lawyers, especially Gratian, than philosophers or theologians. A passing comment in Calcidius’ commentary on the Timaeus (see Section 11.3.3 below) would prove important. Some manuscripts of Cicero’s work, including On the Laws and On Duties, date back to the early Middle Ages, but writers of the time were much more likely to be influenced by his brief discussion of law in On Invention (II.53.160–62).

Among the new sources were Aristotle’s Nicomachean Ethics, Rhetoric, and Politics, all of which contain comments on law. But the Politics, probably the most important for this subject, was one of the latest of Aristotle’s works to be translated into Latin, by William of Moerbeke in 1260–64. In general, Aristotelian influence on theories of law was only just beginning to be felt in the middle of the thirteenth century (see Section 11.5 below).

11.2 John Scottus Eriugena and the Idea of Law

John Scottus (or “Eriugena” as he called himself) gives his most interesting discussion of law in On Divine Predestination, a work written in the early 850 s, before he encountered and developed the Greek Christian neo-Platonic thought that gives his later masterpiece, the Periphyseon, its distinctive character.

On Divine Predestination was written at the invitation of Hincmar, Archbishop of Rheims. Influenced by a reading of some of Augustine’s late writings, a monk called Gottschalk was insisting that divine predestination is dual: of the blessed to heaven and of sinners to damnation. To Hincmar this view seemed heretical, but many churchmen remained unconvinced by his efforts to explain why. In 851 he asked Eriugena, who seems to have been a court intellectual who was teaching the liberal arts, to attack Gottschalk’s position. Eriugena did so, but argued so vigorously against Gottschalk’s oppressively deterministic picture that his treatise was found by many to be more objectionable than the writings it assailed.

Quite early on in On Divine Predestination, Eriugena introduces ideas about law (Cristiani 1976, 104–5). He asks Gottschalk what justice is, and Gottschalk replies, using a classic Roman definition that he probably took from Augustine (Lib. Arb. I.13, 27), that it is “to give to each his due.” Gottschalk’s view, he goes on to argue, would make God unjust since he would be rewarding people when they had no reward due to them. For how would a reward be due when they were unable to sin? What would have been the point of God’s prohibiting sin when a “law of nature” made it impossible for them to sin in any case (On Divine Predestination V.8; 39:171–195)?

By this remark, Eriugena suggests that he is thinking of a law not as an imperative that should be obeyed but can be disobeyed, but rather as a constraining force that cannot be opposed (like a law of physics). But how can this idea be compatible with the other one he puts forward at the same time, namely, that justice requires freedom of choice for those being judged? At the end of his work (On Divine Predestination 18, 6–9; 114:109–17:223; cf. Cristiani 1976, 109–14), Eriugena manages with extraordinary deftness to reconcile these two ideas. God, he says, gives every being a nature that has certain bounds. Non-rational things neither are able nor wish to go beyond these bounds. Of creatures that have reason and intellect, some wish to stay within these bounds, and some do not wish to stay within them. But no one can go beyond them. The wicked wish to withdraw so far from God, the supreme essence, that they entirely cease to be and become nothing. But God’s laws have set up a measure that prevents the wicked from realizing their wish. The eternal punishment of the wicked lies in their inability to gain what they want. They are unwillingly circumscribed by laws—the very same laws which, for the blessed, bring happiness. There is, Eriugena concludes, “one and the same law which disposes the republic in the justest order, as it brings life to those who wish to live well and death to those who desire to live badly,” just as the same food tastes sweet to a healthy person and bitter to a sick one (On Divine Predestination 117:215–21). Precisely because eternal law, in Eriugena’s view, cannot be disobeyed except in will, it not only sets down norms but also by its very existence inflicts punishments—or, rather, it is the instrument by which the wicked punish themselves. Although Eriugena uses the language of predestination, he does not think that God is actively involved in it; rather, having set up his law, God lets the free will of rational creatures bring about their own reward or punishment.

11.3 Abelard on Law and Punishment

11.3.1 Abelard and His Theological Project

Despite the sophistication and breadth of other thinkers of his time, such as William of Conches and Gilbert of Poitiers (see Dronke 1988), and his own debts to predecessors he claims to have despised, such as Anselm of Laon and William of Champeaux, Peter Abelard (1079–1142) was the only twelfth-century thinker to develop a wide-ranging theory of law and punishment. The reason why he did so lies not just in his power and originality as a constructive thinker (Marenbon 1996, 332–49), but also in the nature of the theological project that dominated the second half of his working life.

Abelard had become a famous teacher of logic as a young man in the early 1100s. Over the next two decades his efforts went into thinking about formal logic and (on the basis of logical texts) about metaphysics. When, in 1117, his marriage to Heloise was ended by his castration and he entered the monastery of St. Denis, he did not give up logic. However, he became increasingly interested in Christian doctrine and, although not a rationalist in the way that Michelet and some nineteenth-century historians believed, he tried to give a rationally coherent, ethically centered explanation of the main elements of Christian belief, even at the cost of stretching and adapting dogma beyond what churchmen such as Bernard of Clairvaux thought acceptable. The idea of law, especially natural law, was central to this project in two ways (which the next subsection will clarify). First, Abelard saw the rationality of Christian belief as guaranteed by the way in which, even without revelation, pagan philosophers had anticipated much of it through reasoning, and he discussed this relationship in terms of laws—natural law and the old and new revealed laws. Second, he needed natural law to give a foundation to his ethical theory, which, without it, would have collapsed into an unsustainable subjectivism.

11.3.2 Natural Law, Old Law, and New Law

Abelard’s starting point for his ideas about law was the thinking of Anselm of Laon (d. 1117), William of Champeaux (ca. 1070–1121), and their pupils in the School of Laon at the beginning of the twelfth century (Marenbon 1992, 608–12; 1996, 267–9). As Biblical exegetes, the masters of the School of Laon would have had constantly before them the distinction between the two revealed Biblical laws: the Old Testament and the New Testament. Study of scripture also posed a question that made them look more deeply into the idea of law. The early chapters of Genesis tell of men, such as Abel, who led virtuous lives and whose sacrifices were acceptable to God, and yet lived after the Fall, but before God had given Moses the Ten Commandments and even before he had commanded Abraham to circumcise himself and his male descendants—that is to say, before the old law. In order to explain how such morally good lives were possible, Anselm and William turned to the idea of natural law. The basis for their notion was provided by St. Paul (Rom. 2:14–15): “For since the Gentiles, who have no law, do naturally the things which are of the law, they themselves are in this way a law for themselves—they who show the work of the law written in their hearts.”

Ambrose, Jerome, Origen, and Augustine had all discussed Paul’s remark, and their discussions were systematized in the School of Laon. Three periods of sacred history, each with its own law, were distinguished: the period of natural law, which lasted until God gave special precepts to the Jews (circumcision, and then the Ten Commandments); the period of the old law; and the period of the new law, preached by Christ. The old law repeated natural law in its moral precepts (as, indeed, did the new law), but it also contained figural commandments (circumcision and the dietary laws, for instance) and promises (such as the prophecies of Christ’s coming). Natural law and the old law did not just enable people to live good lives; these laws also allowed them to be saved (even if they had to wait until the Crucifixion to be allowed to enter heaven). Just as original sin could be remedied for Christians through baptism, so natural law (by its gifts and sacrifices to God) and the old law (through circumcision) contained the remedies needed to make people fit to be saved. The faith in Christ that a person also requires for salvation need be only, they added, a general (“implicit”) faith in God as a just judge who will reward the good and punish the evil.

Abelard adopted his basic structure of thinking about law from the School of Laon. He too thought of each of the laws as providing a way of living well and being saved, and in the Problemata Heloissae (Problems Raised by Heloise) (no. 15; PL 703A–C) he speaks of the division between the moral precepts of the old law and its figural commandments. But the way he used this structure was affected by his unusual attitude toward pagan antiquity. Abelard held, following Augustine, that the pagan philosophers of ancient Greece had come to an understanding of God and his triunity by using their reason, and that they were therefore important witnesses to the doctrine of the trinity. When he was attacked for using pagan writers to support Christian teaching, Abelard replied (Theologia Christiana

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