In this book the author has ex­
amined the principal social and

theological forces which influenced
Aquinas’ views and has drawn from

the writings a comprehensive pic­
ture of his political philosophy.

Concluding with reflections on the
importance of the Thomist con­

tribution to the development of
Western thought, he suggests prin­

ciples that bear strongly on our own

social and political institutions.

About the author . . .

Thomas Gilby, O.P., who has been
professor of moral theology at

Blackfriars, Oxford, is the author

of many books, including Phoenix
and Turtle and Barbara Celarent and
is the editor of the philosophical

and theological texts of Thomas
Aquinas.

$5.00

Thomas Aquinas never wrote a for­
mal political treatise, but the main

streams of earlier thought converge
in his writings to produce an im­

portant contribution to political

philosophy.
This book is the first complete ac­

count of that contribution, in its

historical and theological setting.
Aquinas wrote no tracts and was
not a preacher of “party lines.” His
arguments can be located and ap­
preciated only by ranging widely

through his works, touching on such

topics as the psychophysical unity
of man or the primacy of intelli­
gence in mystical union with God—

topics apparently remote from social
issues but which, when viewed col­

lectively, provide insight into the
mind of a great social, as well as re­

ligious, thinker.

THE POLITICAL THOUGHT
OF THOMAS AQUINAS
By

Thomas Gilby

Mt Angel Abbey Library
tk Benedict, Oregon 9737>

THE UNIVERSITY OF CHICAGO PRESS

96Γ
G-57

Library of Congros Catalog fiumber 58-5539
The University of Chicago Press, Chicago 37
Longmans, Green & Co., Ltd., London W.i, England.
The University of Toronto Press, Toronto 5, Canada
Copyright in the International Copyright Union. Published 1958
Printed in Créa! Britain

TO

HARRY WALSTON

Attendendum est quod aliter sumunt politicum vel
civile apud Philosophum et aliter apud Juristas.
Commentary, V Ethics, led. 12

vi

CONTENTS

viii
xiv
xiv

Synopsis
Acknowledgments
Abbreviations
Introduction

XV

Part One. THE INFLUENCES AT WORK

2

Chapter I. Theologians
i. The Bible as Mundane Guide
2. The Theology of Natural Law

IO

Chapter II. Jurists
i. Canonists
2. Civilians

23
31
43

Chapter III. Landed Men and Wanderers
i . The Social Scene
2. The Order of Preachers

55
55
66

Chapter IV. Philosophers
i. The New Naturalism
2. Aristotle from the Arabic and Greek

73
75
73

Part Two. THE DEVELOPMENT IN ST THOMAS

5

16

90

Chapter V. The Advance from the Theologians
i. Law in Nature
2. The Concept of Law
3. Types of Law
4. The Jus Gentium
5. Dominion a Natural Condition

107

Chapter VI. A Draff for the Jurists
I. Law-Making as Art
2. The Limits to Legalism
3. Legality and Politics
4. Legal Supremacy

»59
162
»75
187
»9»

vii

Ill

124
136
142
146

THE POLITICAL THOUGHT OF THOMAS AQUINAS

VÎii

Chapter VII. Citizenship and Eccentricity
1. Justice within the Official Community
2. Private and Public
3. Individual and Social Justice
4. Politics and Morals
5. Personal and Common Good
6. The Corporate Group
7. State Personality
8. A Note on Terminology

203
208
214
219
227
237
251
256
261

Chapter
1.
2.
3.
4.
5.

265
267
271
2 79
284
299

VIII. The Reception of Aristotle
The Commentaries on the Ethics and Politics
The Brief Nco-Hellenism
Political Method
The Polity
Political Equity

Conclusion. THE POLITICAL DISCOURSE

1. The Historical Effect
2. The Three Social Phases
3. Summan'

Index

312
3>3
316
328
333

SYNOPSIS
Introduction
Rise of the European State from feudalism—Frederick II and
the Regnum—St Thomas’s background—His four new principles:
i, Political authority based on nature, not convention; 2, Not de­
rived from ecclesiastical authority; 3, Limited to the maintenance
of external justice; 4, Exercised as art, not expansion of ethics—
Political science subsumed in a wider philosopliical and theological
doctrine.

Part One
THE INFLUENCES AT WORK
Augustinian theology—Roman Law—Medieval culture—Aristotelcan philosophy.

CONTENTS

ix

Chapter I. Theologians
St Isidore’s Etymologies—Greek and Latin Fathers—St Augustine
—Identification of Christian philosophy and theology—Influence
of the social doctrines of the Stoics—Contrast of innocence and
convention—Religious acceptance of State not founded on righteous­
ness.

1. The Bible as Mundane Guide.—The world of allegory and
twelfth-century humanism—-John of Salisbury—Beginnings of
natural philosophy and study of social institutions—Parisian Summists—Commentaries on the Sapiential Books—Vincent of Beau­
vais.
2. The Theology of Natural Law.—Natural right and the Greeks—
and the Romans—Early Schoolmen—Nature as opposed to arti­
ficial, rational, supernatural—Impression of Eternal Law on the
human mind—Scientific classification of laws not yet achieved.

Chapter II. Jurists
Medieval legal temper—Wariness of theologians about legal
studies—Bologna—Recovery of Justinian’s Law—Government—
The Gloss of Accursius.
1. Canonists.—Line of lawyer Popes—St Raymund of Penna­
fort—Internal and external forum—Mixture of law and theology—
The Canonical Movement as a political cause—Aloofness of theo­
logians and friars—John of Paris—Humane effect of Canonists—
Contract and the free society—Representative government—Office
and person—Paternal and political association.

2. Civilians.—The Four Doctors—Glossators—Post-Glossators—
Legal Scholasticism—Italian and French schools—Paris and
Orleans—The Equity Wing—Placentinus—The power of the
Princeps—The right of the Populus.
Chapter III. Landed Men and Wanderers
1. The Social Scene.—Growth of trade—Town life—Personifica­
tion of official power—Professionalism—Custom and Statute—
Law—Aristocratic reaction to monarchy—Pilgrims—Non-classical
influences.

2. The Order of Preachers.—Vagrants—Friars—Dominicans—
Manichces—Spirituals.

X

THE POLITICAL THOUGHT OF THOMAS AQUINAS

Chapter IV. Philosophers
Neo-Platonic and Stoic sources of Christian philosophy.

1. 7 he New .Naturalism.—Growth of natural sciences—The
humanism of Chartres—Gradual discovery of Aristotle—Logic—
Natural and metaphysical philosophy—Moral and political philo­
sophy—Hostility of traditional divines.

2. Aristotle from the Arabic and Greek.—Arabic and Jewish com­
mentators—Avicenna—Averroes—Translation from the Greek by
Robert Grosseteste and William of Moerbekc—Latin Averroism—
The Double Truth theory—The two worlds—The two cities—
Germs of secularism.

Part Two
THE DEVELOPMENT IN ST THOMAS

Movement from Imperium to Polis—Decline in the political power
of Emperor and Pope —The Nation-State—Teaching career of St
Thomas—His position between Augustinianism and Averroism—
The function of Reason—Values in the material world -Humana
civilitas—Pre-Thomist and Post-Thomist Dominicans.
Chapter V. The Advance from the Theologians
Contrast of Greek and Latin concepts of community—of author­
ity—Moral requirements for the possession and exercise of power—
Legal positivism.
1. Law in Nature.—The idea of law wider than that of‘positive
legality’—Basis of rationalism—Political law independent of sin—
New respect for material Nature—Interdependence of sciences —
Morality and economics—Biological springs of law Jus according
to philosophers and lawyers —Justice a condition of all virtue.

2. The Concept of Law.—Gradual development of the definition—
The Ordinance of Reason and the Lex Regia—The commonwealth
and the ultimate common good—Sovereign authority and the
people—Promulgation and the canonical insistence on scientia.

3. Types of Law.—Seven classes considered—Eternal Law—
Natural Law, primary and secondary precepts—The Gospel Law—
The Lex Fomitis—Positive Divine Law and the Mosaic Law—
Positive Human Law.

CONTENTS

xi

4. 77«? Jus Gentium.—History of the concept—Interpretations of
Stoic and Scholastic moralists—Rational evolution and artificial
supplements—Logos in a process and ratio in an order—Status—
Appeal to Gaius and Ulpian.
5. Dominion a Natural Condition.—The Liber Augustialis and the
title to govern apart from the remedy for sin—The things that are
Caesar’s—Development from the Commentary on the Sentences to the
Summa Theologica—Comparison with private property and slavery—
Right to dominion unmediated by ecclesiastical approval—Trans­
lation and Designation theories of sovereignty.
Chapter VI. Λ Draft

for the

Jurists

The Natural Law school—Negative check of moral law on
legislation and politics—Proper character of civil law—Juridical
frame of reference in St Thomas’s thought.
1. Law-making as Art.—Theory and practice—Prudence and art—
Necessary and contingent judgments—Control of the community
not a scientific process—Arbitrary' element in Positive Law—Com­
manded because good and good because commanded—Pragmatism
—Prudential complements to ethics, not logical implications
—Relationship to theology, morality, custom.

2. The Limits to Legalism.—Obligation in conscience—Field of
law narrower than that of virtue—Approximate generalizations
about external facts—Sin and crime—Fixed and broad effects of
human law—Assessment of knowledge and will—Judgment rela­
tive to social needs—Punishment remedial and protective—Law
and liberty—Self-denying ordinances in legislation.
3. Legality and Politics.—Background theories to law and politics—
The animal sociale et politicum—Politics without party—Addition of
Roman notions of legality to the Greek idea of political welfare—
Sedition anti-social and illegal—The common good and the public
good—Communis utilitas and unitas juris.
4. Legal Supremacy.—From the purpose to the origins of political
authority—Lordship and jurisdiction—Power from God resides in
the people—Political morals and political legality—The legal title
to sovereignty—The source of law—The sovereign as impersonating
the general will—Popular consent—The alienation of power.

xii

THE POLITICAL THOUGHT OF THOMAS AQUINAS

Chapter VII. Citizenship and Eccentricity
Growth of public and official action in the thirteenth century—
Formal sovereignty—Centralization and anarchism—Romanticism.

1. Justice within the Official Community—Individual and official
responsibility—Political action governed by State needs—Solidifi­
cation of supreme power—Feudal checks—Extension of the idea of
contract—Political justice and equality.

2. Private and Public.—The action of the whole and of the parts—
The judgment of conscience—Partnersliip and Corporation—The
sovereign subject to law.
3. Individual and Social Justice.—Community and personal dues—
General or legal justice—Particular justice—Commutative and
distributive—Fixed and sliding scales of rights—Individual rights
and common forms—Incidental injustice.

4. Politics and .Morals.—The types of prudence—Personal pru­
dence and political prudence—State needs and conscience—The
all-inclusive group—Politics a subordinate discipline—The dangers
of moralism—Virtues of compromise and opportunism—States­
manship and limited objectives.
5. Personal and Common Good.—The unity in a scheme—Theo­
logical meaning of person—Immediate relationship to God beyond
the World-Order—Extra-political perfection—Integration in the
Social group—Historical succession of ideas in St Thomas—The
highest bonum commune—Evangelical poverty and social para­
sitism—Paris Masters and Mendicants.
6. The Corporate Croup.—Growth of medieval corporations—
Philosophical division of groups—Logical and real wholes—Natural
and artificial wholes—Organic theories of State and Church—
The body politic and the mystical body.
7. Stale Personality—Philosophical and juridical personality—
The Legal Fiction—Descent-groups and groups by covenant—
Corporate guilt and the doctrine of Original Sin.

8. A Note on Ί erminolog}'.—The mass-community or pre-rational
group—The legal corporation and polity—The pure society or
partnership.

CONTENTS

xiii

Chapter VIII. The Reception of Aristotle
Augustinian Scholasticism—Latin Averroism
1. The Commentaries on the Ethics and Politics.—St Thomas—St
Albert.

2. The Brief Neo-llellenism.—Transition from humanism to logic,
speculative theology, law—Classical sources—Hellenists in St
Thomas’s circle—Latin terms and Greek meanings—Legal and
philosophical reading of politics.
3. Political Method.—Scholasticism—Induction and a posteriori
deduction—Philosophy and jurisprudence—The use of history and
experience—Avoidance of doctrinaire politics.

4. The Polity.—The rule of law—Balance of monarchy, aristo­
cracy, democracy—The cult of kingship—The best regime—The
Dominican Constitutions—Political prudence the virtue of citizen­
ship—Free association—Popular participation in government.
5. Political Equity.—The criticism of power—The right to resist—
The spirit and the letter of the law—Personal initiative—Equity
and prudence—And law—The highest function of justice.
Conclusion
THE POLITICAL DISCOURSE

1. The Historical Effect.—The third quarter of the thirteenth
century—One school among many—Clerical withdrawal from
secular interests—The Spanish Thomists—The Leonine revival.

2. The Three Social Phases.—Three logical models in the dialectic
—The kin-group—The political association—The fellowship—
Continuity of the evolution.
3. Summary

ACKNOWLEDGMENTS

In the first place I thank Professor Dom David Knowles, of
Peterhouse, but for whose encouragement this study would
never have been started, and then Fr Kenelm Foster, O.P.,
of Blackfriars, Cambridge, Fr John-Baptist Reeves, O.P., of the
Dominican House, Edinburgh, Professor Michael Oakeshott, of
the London School of Economics, and Professor Yves R.
Simon, of Notre Dame, but for whose critical comments it
would have appeared with more defects.
Thomas Gilby
Blackfriars, Cambridge
29 June 1957
ABBREVIATIONS

AFP.

Archivum Fratrum Ordinis Praedicatorum. Rome.

AHDL.

Archives d'histoire doctrinale et littéraire du moyen âge. Paris.

Bcitràgc. Bcitràge zur Geschichte der Philosophie des Mittelalters.
Münster.
DTC.

Dictionnaire de théologie catholique. Paris.

LMA.

The Legacy of the Middle Ages, cd. C. G. Crump and
E. F. Jacob. Oxford, 1926.

MS.

Mediaeval Studies. Toronto.

PL.

Migne, Patrologiae cursus completus. Scries latina.

R PL.

Revue philosophique de Louvain.

RSPT.

Revue des sciences philosophique et théologiques. Paris.

RTAM. Recherches de théologie ancienne et médiévale. Louvain.
References without ascribed authorship arc to St Thomas
Aquinas and without title are to his Summa Theologiae, commonly
known as the Summa Theologica. Thus, 2a-aae. Iviii, 8 signifies the
second half of the Second Part, Question 58, article 8.

xiv

INTRODUCTION
Europe received the social teaching of classical
Greece when, about the middle of the thirteenth
century-, Aristotle’s Ethics and Politics were translated
into Latin by the Oxford scholar, Robert Grosseteste, Bishop of
Lincoln, and the Flemish Dominican, William of Moerbeke,
later Archbishop of Corinth. The texts were soon followed by
commentaries on them by St Albert of Cologne—Albertus
Magnus—and St Thomas Aquinas. The Timaeus was known
and admired, but Plato’s political teaching remained undis­
covered until the Renaissance except from fragmentary
quotations at second-hand. The image of the Aristotelean Polis,
pictured sometimes as but a stage on the journey to the Civitas
Dei and sometimes as a settlement which provided for every
social need, dominated debate on human government.
The reconstruction, which made little claim to archaeological
accuracy, met the historical occasion, for feudalism, an agrarian
and warrior economy, was being transformed into mercantile
and civilian arrangements; the process was slow and lasted
from the twelfth century to the fifteenth. The West lagged
behind the East where social organization was based on the
cities and the great estates were not economically isolated.1 But
already the manor, self-supporting at least for bare necessities,
was looking towards the borough and the rural commune was
being taken into the city. The centre of gravity was moving
from country to town, and to a condition where the instrument
of power was money, not land. At the bottom of the social
scale some sort of rural democracy was appearing among the
serfs ; at the top suzerainty was acquiring the style of sovereignty.
A system of land-tenure in which men were held together by
personal engagements and services between men at adjacent
levels, appropriate to a pioneering period when the tribes were
settling down and drawing the national divisions of Europe,
estern

W

1 L. M. Hartmann. TA* Early Medùual Stale: Byzantium, Italy and the West. Tr. H.
Liebcschütz. London, 1949.

XV

XVI

INTRODUCTION

was evolving into a more political type of community, econom­
ically more complex, administratively more unified, socially
more official, and legally more impersonal.
The State, as the modern world knows it, was being born.
Soon the reflection followed that politics or statecraft con­
stituted a special discipline with rules of its own. Previous
social and political convictions were a mixture, in proportions
different according to region, of maxims from Patristic Theology
and Stoic Philosophy, together with remnants of Roman Law,
worked into the folk-customs of invaders from across the North
Sea, the Elbe and the Danube. They were quickened by an
evangelical spirit, swept by a fugitive enthusiasm and touched
by a not unsophisticated romanticism. Now they were infused
by the ideals of enlightened self-interest and civic reasonable­
ness.
Improvements in what may be called social plumbing,
chiefly matters of amenity or luxury, had been copied from
the Moslems to the south. Their courtly culture was spread
through the Angevin lands and beyond : the range of Eleanor
of Aquitaine’s influence rivalled that of Queen Victoria
centuries later, though she set a different tone. It penetrated
the brilliant society of Provence and Languedoc, the scene of
St Dominic’s first preaching mission and of the ruin wrought by
his friend, Simon de Montfort—that thirteenth-century Iron­
side. Salimbene, the Franciscan chronicler, gives us a glimpse
of the orientalized mode of life enjoyed by the great merchant
houses of Pisa. Algazel, the medieval Islamic philosopher, and
Averroes after him had interpreted Plato’s Republic in the light
of Aristotle’s Ethics and dealt with contemporary conditions.1
Yet the contribution of the Arabs to the social thought of the
West was slender and not to be compared with their influence
in the natural and metaphysical sciences. The Koran marked
no advance on the Mosaic Law, and the revival of political
theory was nourished from other sources, from the Roman Law
and the new translations of Aristotle out of Greek.
1 E. I. J. Rosenthal. ‘The Place of Politics in the Philosophy of I bn Rushd.’
Bulletin of the London School of Oriental and African Studies, xv, 2, 1953.
For Salimbenc’s Chronicle see G. G. Coulton, From St Francis to Dante, London.
1908.

INTRODUCTION

xvii

Nor was the political influence of the Byzantines much
stronger. Their administrative genius was scarcely appreciated,
and Europe showed little to match their regular civil sendee,
trained military cadres, or the whole disciplined order which
the Eastern Empire maintained against Slavs and Saracens for
a thousand years. Even in the art of war the Franks looked to
them chiefly for siege-apparatus, and learnt the need of close
formation less from the precepts of Commenus than from bitter
experience of the Turkish light-horse.1 Greek juristic studies
may have underlain the teaching at Bologna, the nursery of
the revived Roman Law in Europe, which lay near the borders
of what had been the Exarchate of Ravenna, and only two days’
march from the lagoons where the sway of the Basilcus had last
been acknowledged in Italy. Nevertheless no direct connection
has been traced between the Greek universities and the early
medieval law-schools of Italy and France. The intricate legal
and commercial system of the Eastern Empire stood a world
apart from the rudimentary structures of the West.2 How
different was its undebased gold solidus, so suitable for largescale commerce, from the silver coins, often clipped, which
served the economy of feudalism.
A gold florin was struck at Florence in 1252 and Henry Ill’s
beautiful gold penny followed in 1257. The new gold coinages
which made their appearance in Europe during the thirteenth
century were signs that the West was becoming an important
export area. Genoa and Venice controlled the pilgrim traffic
and monopolized exchanges with the Levant; both were as
western in their social thoughts and habits as the East India
Company was British. Men looked to the East for glamour,
not for a lesson in civics. When the Latins seized and sacked
Constantinople during the Fourth Crusade the Empire was
partitioned into seignories and its centralized organization and
institutions broken down. ‘A new France,’ so at first Innocent
III acclaimed the effect. Yet not from his heart, for, perhaps
prescient of its fatal consequences of schism and animosity
1 R. C. Smail. Crusading Warfare (1097-1193). Cambridge, 1956.
* N. H. Baynes and H. St L. Moes. Byzantium: An Introduction to East Roman Cwilizalion. Oxford, 1948.
G. Ostrogorsky. History of the Byzantine State. Tr. J. M. Hussey. Oxford, 1956.

xviii

PRINCIPALITY

AND

POLITY

between Western and Eastern Christendom, he mistrusted the
adventure. In fact it was to endure only for an anarchic halfcentury.
In the West the Emperor Frederick II was never undisputed
master of the Reich; on his death (1250) the Great Interregnum
began, and with it the collapse of his grandfather Barbarossa’s
plan for the hegemony of Europe. The defeat of Hohenstaufen
imperialism was bloodily sealed when his grandson Conradin
was beheaded after the battle of Tagliacozzo (1268), and the
victorious Charles of Anjou wrote to Pope Clement IV ‘to
arise and cat of his son’s venison’. Papal plans were less
concerned with theory than with practice during the closing
years of the struggle, for territorial dispositions in Italy bulked
larger than any sweeping claim to jurisdiction on the part of
secular rulers. The policy was to avoid the more immediate
danger of being squeezed between two combined powers, the
Regnum Italicum of the Holy Roman Empire in the northern
part of the peninsula, and the Regno, the Kingdom of Sicily
taken by Norman conquest from the Byzantines and inherited
by Frederick II from his mother, the Empress Constance,
daughter of Roger II; this covered the island itself and the
peninsula northward to the Gulf of Gaeta. Frederick was a man
of the south, ‘the boy from Apulia,’ and it was in his own realm
already prepared by the administrative genius of Eugenio of
Palermo that he created a State as a work of art, as Burckhardt
called it, when the Liber Auguslialis, which became law in 1231
and was immediately translated into Greek, stamped an
official style on the racial medley of its inhabitants, and altered
feudal devolution into a disposition of direct control from the
centre.1
A similar process was at work elsewhere in other realms. The
energy of Henry II of England and of Philip entitled Augustus
extended the close sway of the monarch beyond the Home
Counties and the He de France. But frequently local interests
counted for more than the action of the whole nation brought
to bear from the centre; fief-holders might compose govern­
ments within the government and over-mighty subjects might
1 E. Jamison. Admiral Eugenius of Sicify. Oxford University Press for the British
Academy. 1957.

INTRODUCTION

xix

eclipse the crown. A Clare might rouse the West Country, a
Lusignan the County of Anjou; Londoners could act for
themselves. The nearest approach to the constitutional State
was found in Spain where popular liberties were secured and
citizens, protected by charter or fueros, participated in the
Cortes. A freeman able to keep a horse might be advanced to
knighthood in Castille and Leon. Elsewhere in Europe it was
becoming a privilege reserved to men of gentle birth. The fleet
of Aragon, united with mercantile Catalonia in 1135, com­
manded the Western Mediterranean. The main Spanish effort,
however, was concentrated on the Rcconquest; in 1248 Seville
was taken by Ferdinand II who, when urged to go campaigning
in the Holy Land, replied, ‘We are always on Crusade.’
In Germany trade and the free cities grew together; Cologne,
a bourgeois community ruled by a Prince-Archbishop, long
held out against the Reich which rallied to the magic
of the Hohenstaufcn name. Even there, as in most of the cities
of Northern Italy, independence lay under the shadow of
imperial claims which might suddenly and ruthlessly exact
acknowledgment. Venice, a conspicuous exception and never
feudal-minded, was expanding her rich commercial empire
and, wedded to the sea with the ring earned by Doge Ziani for
prevailing upon Barbarossa to kiss Alexander Ill’s foot and
hold the stirrup of the papal mule, could defy Popes and
Emperors, and presented the nearest likeness to the classical
autonomous State of the prc-atomic age.
Most advanced politically was the realm of Sicily, ruled
from the court of Frederick II, Stupor Mundi. The cultures of
Phoenicians, Greeks, Carthaginians, Berbers, Romans, Goths,
Arabs, Byzantines, Lombards, Normans and Suabians mingled
together, and there even now you arc told that houses are
colour-washed to show the origin of the families that occupy
them—blue for the Greek, red for the Saracen, white for the
Norman, and yellow for the converted Jew. On its northern
mainland frontier above the Liri valley Thomas Aquinas was
born, about 1225, less than two centuries after it had been part
of the Eastern Empire, from a family high in the royal and
imperial service. He was educated at Naples, the only medieval
university outside Spain founded by the secular power. During

XX

PRINCIPALITY AND

POLITY

his lifetime the French marched in with the blessing of the
Pope, and Frederick’s officials faded away. The Aquino family
was caught in a tangle of shifting loyalties between the Houses
of Hohenstaufen and Anjou, the policies of the Pope and their
own ambitions. He died in 1274, eight years before the Sicilian
Vespers massacred the oppressors and avenged the memory of
Manfred and Conradin. Henceforth the island, more and
more sundered from the mainland, fell under the rule of
foreigners, Spanish and Austrian, and, though the independence
of the Regno was restored under Charles III in the eighteenth
century, it never rose again to its old greatness.1
Other foundations for the modern State, in France, England,
and the Iberian Peninsula, were to prove more lasting, but it
was by a man of Sicily that its theory was re-established.
Henceforth politics began to be cultivated as a special discipline
and Staatsrason or ‘statism’ emerged in its own right. Parts of
the Greek City of Reason were dug up from the layers of
centuries, imperial, barbarian, and ecclesiastical. What was
discovered was the polity of Aristotle and later the republic of
Plato, not the Athens of Pericles. An ideal was restored, not a
historical plan, and the ideal was coloured to the medieval
background.
Elsewhere will be found a sketch of St Thomas’s social
dialectic together with some account of his conclusions on the
conciliation of authority and freedom, of group-discipline and
individual expression, of company and privacy, of legalism and
lyricism.2 Our present purpose is to observe the influences at
1 A. Walz. San Tommaso d’Aquino. Studi Biogrqfid ml Dottore Angelico. Rome, 1945.
Hastings Rashdall. The Universities of Europe in the Middle Ages. (ed. F. M.
Powickc and A. B. Emden), ii, pp. 21-6. Oxford, 1936.
H. Acton. The Bourbons of Naples. London, 1956.
■ T. Gilby. Beticeen Community and Society. A Philosophy and Theology of the State.
London,1952.
O. Schilling. Die Staats- und Soziallehre des hl. Thomas ton Aquin. 2nd cd. Munich,
1930·
C. Riedl. The Social Theory of St Thomas Aquinas. Philadelphia, 1934.
L. Lachance. L’humanisme politique de saint Thomas. Ottawa, 1939.
For general background, see F. C. Copleston, Aquinas. London, 1956. E. Gilson,
Le Thomisme. Paris, 1948. The Christian Philosophy of Si Thomas Aquinas, tr.
L. K. Shook. London. 1957.
M. D. Chenu. Introduction à Γetude de saint Thomas d’Aquin. Paris, 1950.

INTRODUCTION

xxi

work which formed his thought, and if we look for the rising
naturalism as the Aristotelean stream flowed stronger we may
plead that our study is not purely historical. Let us be warned,
however, not to demand of him a complete and self-contained
system, the formation of which can be studied in isolation
from the exceptions and incongruities of the epoch. Although
his politics were subsidiary to his philosophy and theology, they
represented his response to his situation; they cannot be
properly exhibited by moving a sort of permanent Thomist
platform backwards into history.
No more than Matthew Paris, the chiefjournalist of the age,
did he assess the constitutional changes which were going on
before his eyes, yet he brought out some significant ruling
principles, four of which may be enumerated. First, that the
right of political authority to command derived from social
needs inherent to human nature as such, and was not postu­
lated merely because of corrupt proclivities due to original sin.
Law was not restricted to the criminal code; power had the
positive function of encouraging virtue as well as the negative
function of checking vice; civic obedience would have been
required even had the Fall not introduced the threat of com­
pulsion. All this was a departure from the patristic doctrine
and the consensus of scholastic opinion that political dominion,
and private property and slavery as well, were propter peccatum
and grounded on convention not on the nature of things : the
old view was like that of Freud on neurosis, and found the
origins of human inequality in our early environment, not our
genetical constitution.
Secondly, this authority, at least in the abstract, was distinct
from and not of itself beholden to the authority of the Church.
Western tradition in the main held to the Gelasian conception
of twin authorities for spiritual and temporal power each
without visible superior in its own domain.1 The prince did
not claim the divinity of Augustus, nor even the ecclesiastical
wardenship of Charlemagne. There was but faint reflection in
the West to the cacsaro-papism of Byzantium which had
taken over the trappings and ceremonial of Persian monarchy
rather the reverse, for the effort of the extreme Papalists to
1 Pope St Gelasius I. d. 497. Epistolae, viii. PL. lix, 42.

XXÎi

PRINCIPALITY

AND

POLITY

absorb all power in the pontifical power tended towards a
papo-caesarism. A powerful minority among churchmen, they
were fighting a losing battle, though their defeat was not
evident until the humiliation at Anagni and the death of Pope
Boniface VIII (1303).
Few claimed that all was Church, somewhat as the Monophysites had said that all was divine in Christ; fewer wanted to
separate the Church from secular social life, somewhat as the
Nestorians had divided Christ into two persons. The terms
Church and State in this context do not bear their later meaning,
namely of two quite separate corporations more or less tolerant
of one another when they have no quarrel. What men held to
was still a condominium of the two dignitates, the sacerdotium and
the imperium or regnum, within the single body of the Christian
commonwealth. Their problem was still the practical one of
distinguishing between two social obligations without merging
them under the direct control cither of the ecclesiastical power
or, as the secularists vying with the clericalists were later to
advocate, of the civil power.
Two teachings were simultaneously accepted, that secular
power was flawed with sin and that submission to it was a
Christian duty: they were not felt to be inconsistent. The
religious climate had changed since the persecutions of the
early Church. Christianity was no longer a minority religion,
nervous, separatist and severe. Instead it was at ease with the
contemporary culture and social order, both of which were
largely of its own making. The contrast between the heavenly
and the earthly was less harsh. Everybody recognized the
supremacy of the spiritual over the temporal but were not
thereby defenders of what nowadays is labelled clericalism.
St Thomas, for instance, was a prominent figure at the Papal
Court, the forerunner of the present Master of the Sacred
Palace. All the same he held aloof from the party cause, pro­
moted by canonists rather than by theologians, which derived
all dominion from the Pope. The Papacy had acquired par­
ticular overlordship through deeds of grant in certain areas,
and throughout Europe was acknowledged as the highest
arbiter, but that it possessed the plenitude of earthly power was
by no means general teaching. Thus it was held that the

INTRODUCTION

xxiii

temporal prince’s power to rule was part of the order of natural
justice, from which grace and ecclesiastical power could not
derogate.1
There was then no cleavage between the sacred and profane
organization of social life, and only a pale foreshadowing of
Cavour’s formula, ‘a free Church in a free State,’ adopted by
nineteenth-century Liberalism when it would disestablish
organized religion but leave it in peace. All the same the theore­
tic distinction between spiritualities and temporalities was
sufficiently clear, and the Dominican, John of Paris (d. 1306),
one of the ablest early Thomists, represented common central
opinion when he allowed clerical power no direct control over
the secular power and required each to respect the other.1
2
From this followed the third principle, that temporal power
was immediately concerned only with temporal affairs although
its purpose was to promote social virtue and its just commands
obliged in conscience. St Thomas was free from the later
cynicism of religious men to whom civil laws were like Customs’
regulations, to be observed, they held, only because otherwise
you will be fined. He was free also from their disillusionment
which leaves them to take political decisions in accord with the
principle of the lesser evil. The foremost task of government was
to establish and maintain those objective conditions, principally
matters of justice, which allowed citizens to lead the good life.
Its protective rôle concerned crime rather than sin; it was out
to prevent disturbances of the public order rather than moral
wickedness it was unable to judge. Here Civil Law was like
Canon Law, and operated in an external forum without pre­
judging the sentence of God who alone searches the heart and
12a-2ae.civ, 6.

2 Jean Quidart, Joannes Dormiens. Tractatus de Potestate Regia et Papali. Ed. J.
Leclercq, Paris, 1942.
C. H. McIlwain. The Growth qf Political Thought in the West, pp. 263-7. New York,
1932Rivière. Le problème de l’église et de l'état du temps de Philippe Le Bel. Louvain, r 926.
A. J. Carlyle. A History of .Medieval Political Theory in the West, v, pp. 422-37.
London,1928.
J. Ixcler. L'Eglise et la souverainté de l'Etat. Paris, 1946. Tr. The Tico Sovereignties.
London,1952.
A. L. Smith. Church and State in the Middle Ages. Oxford, 1913.

XXÎV

PRINCIPALITY AND

POLITY

the reins. The ordinances of human law should be reduced to
a minimum consonant with the needs of the community; too
fussy an improving spirit in legislators was deprecated. Let laws
be sufficiently stable for subjects to know where they stand,
but what was just varied according to changing conditions, and
therefore they’ were not to be flatly applied, but modulated by
equity as circumstances required.1
For, and this was his fourth principle, government and
legislation were more directly functions of art than of ethics.
Sound political judgment, which answers to what is practicable,
must in some cases decide between alternatives both of which
may' have good moral reasons in their favour, and reach a
resolve by a kind of poetic freedom, not by the determinism
proper to the deductive sciences, where conclusions are brought
out from principles by’ logical implication. Not that St Thomas
entertained the idea of ‘pure politics’, in die sense that state­
craft could be divorced from morality; he merely proposed that
political prudence or statesmanship should have the courage of
its own convictions and not strain for abstract reassurance that
its judgment was orthodox. The material could not provide it.
The issue was one of practice, not theory. The object was
particular, not general. The decision was contingent on events,
not necessary given the premisses, and therefore could never be
entirely’ evaluated by theological and philosophical reasons.2
He finished no formal political treatise, and the four prin­
ciples we have picked out were advanced in various parts of
his philosophical and theological writings composed during the
twenty years of his teaching career (1254-74). As his Aristotelcanism grew so the need for State action was more firmly
emphasized. Its field, however, was not extended. No steady
development is noticeable. When he is called an Aristotclcan
it is well to remember that his speculation was more pregnant
than liis scholarship; his effort was to form a living wisdom,
not a reconstruction of the past. Then also his reputation as a
thinker who advanced in a progression of theorems is modern
and undeserved. He himself praised a certain obliqueness in
1 ia-2ae, xci, 4. xcvi, 2, 3, 4. 6. xcvii, 1. 2a-2ae, Ixxvii, 1, ad 1. exx, 1. V Ethic.
Icct. 16.
* ia-2M. XCV, 2.

INTRODUCTION

XXV

discourse, and his ideas move more like knights than rooks and
arc no less difficult to corner.1
Moreover they are never purely political. Hence his argu­
ment can be appreciated only by ranging widely and touching
on topics, such as the psycho-physical unity of man or the
primacy of intelligence in mystical union with God, apparently
remote from social issues. Primarily a theologian, he preached
no party line in the institutional conflicts of his time. The
balance he struck between political Augustinism and Aristoteleanism was tilted after his death, on the right by the clericals,
on the left by the secularists. Both sides could cite him in
support : he had clearly defended the universal primacy of the
Pope, he had also acknowledged the existence of political
rights which needed no prior ecclesiastical ratification.
The difference was discovered in the divergence of the
continuators of his two unfinished political works. The first,
the treatise de Regimine Principum, was completed by Ptolemy of
Lucca (d. 1326), his Dominican disciple, a clericalist and a
republican, who would have tightened the organization of
Christendom under the supreme jurisdiction of the Pope; his
work, says W. E. V. Reade, is ‘remarkable as a combination of
traditional points of view with anticipations of a later type of
political theory, and is as modern in spirit as it is medieval in
outward form and style’. The second, the Commentary on the
Politics, was completed by Peter of Auvergne (d. 1304), who
seems to have been more at home in the Faculty of Arts than
of Theology; the commonwealth he pictured was a regional
state smaller than Christendom and unaffected by the Church.12*
As the rifts opened in Western social psychology’ between
religious and civic forms, and between private and public life,
1 2a-2ae. clxxx, 6.
Mortimer Adler. St Thomas and the Gentiles, p. 46. Milwaukee, 1938.
2 Sec de Regimine Principum, iii, to, 12, 13, iv, 4, g, 12.
W. E. V. Reade. Political Theory to c. 1300. Cambridge Mediaeval History, vi,
pp. 629-32. 1929.
E. Hocedez. ’La vic et les oeuvres de Pierre d’Auvergne.’ Gregprianum, xix,
PP· 3"36· Rome 1933.
E. Amann. ‘Pierre d’Auvergne.’ DTC. xii, 2, 1882. Paris, 1935.
G. de Lagarde. La naissance de l'esprit laïque au dâlin dit moyen âge. iii, ‘Secteur
sociale de la scolastique.’ Paris, 1942.

XXVÎ

PRINCIPALITY AND

POLITY

the contrary' causes St Thomas had stated as abstract values
hardened into exclusive concrete situations. Before them his
thought may seem well to hesitate, like the Chinese sage who
was asked to adjudicate between rival queens of beauty and
replied, ‘Both are worse.’
The following study is divided into two parts. The first is
introductory', a selection of events, institutions, sentiments and
ideas which he had to reckon with, arranged under four
chapter-headings, on theology, law, social history, and phil­
osophy. What he made of these sometimes conflicting elements
is discussed in the four corresponding chapters of the second
part, and recapitulated in the concluding summary'.
i Simplification is dangerous, and not least about the ways ideas work out in
history, or when personalities arc narrowed to a cause. When the label
Political Augustirdsm is attached to the religious suspicion of secular power and
coupled with the attempt to draw its teeth by subjecting it to the Church,
we may reflect that St Augustine was about as much a political Augustinist
as St Thomas was a fanatical Thomist. Jerusalem is the heavenly city,
Babylon the earthly city, but this does not always stand for the civitas imqua
leagued against God, for in the temporal order lay validity and justice.
Similarly sacculum was not only tins wicked world but also a providential if
provisional system. A moralism stemming from St Gregory and St Isidore
may have been content with a political discipline consisting of exhortations to
princely virtue and piety, but another movement among theologians, jurists
and statesmen also discerned with St Augustine a proper scientia regendi populos
and defended the rightfulness within the civil order. It was to be reinforced
by St Thomas drawing from the resources of the Aristotelean philosophy and
elsewhere, but already at the time of the Latcran Council in 1179 it was
expressed by Rufintu. There were really three cities, he said: Jerusalem, the
christianae societatis fraternitas, Egypt, the malorum conspiratio, and, as it were in
between, Babylon the tuta conversatio of both the good and the bad, that is,
of average men, in external justice and humanity. (Y.M.-J. Congar. Maître
Rufin et son de Bono Pacis. RSPT. xli, pp. 42B-44. >957·)

THE INFLUENCES AT WORK

main streams, theological, legal, literary and philoso­
phical, rose from different sources and converged in the
thirteenth century. They are here artificially canalized for
convenience of treatment and made to flow, as it were, along
separate channels. The first was that of Patristic Theology
which bore along a neo-Platonic idealism coloured by the
speculations of Arab and Jewish philosophers, notably Avicenna
(d. 1037). Christianity was essentially a social religion for, as
St John the Divine had taught, right standing to God was
defined by right standing to the fellowship; hence it is not
surprising that political lessons in the Fathers also reflected the
ethical teaching of the Roman Stoics on the prominence of
public duty. This movement came to a head with the Augus­
tinian Scholastics, among them the pre-Scotist Franciscans,
prc-Thomist Dominicans and the objectors to St Thomas’s
‘naturalism’ who effected its temporary condemnation in Paris
and Oxford.1
Next came the revival of the Roman Law, destined to have
a profound effect on contitutional history. Starting at Bologna
towards the end of the eleventh century, it produced the
codification of Church Law in the twelfth century whence
issued the political action of the Canonists in die thirteenth.
Their work was later matched by the Civilians in the secular
realm. Both made the moulds in which legal and political forms
were cast in the countries of Europe outside England where the

F

our

1 E. Gilson, History of Christian Philosophy in the Middle Ages. ix. ‘The Condemnation
of I277·’ PP· 3θ7~427· London, 1955. For general background see:
Μ. M. Gorce. L'Essor de la pensée au moyen âge. Paris, 1933.
D. J. B. Hawkins. A Sketch of Mediaeval Philosophy. London, 1946.
R. W. Southern. The Making of the Middle Ages. London, 1953.
A. Forest, F. van Steenbergen, M. de Gandillac. Le mouvement doctrinale du Xie.
auXIVe siècle. Paris, 1950.
H. Danicl-Rops. Cathedral and Crusade. Tr. John Warrington. London, 1957.
Irom Alexander to Constantine: Passages and Documents Illustrating the History of Social
and Political Ideas. 336 b.ç.-a.d. 337. Translated with Introductions, Notes
and Essays by Ernest Barker. Oxford, 1956.
C. N. Cochrane. Christianity and Classical Culture. Oxford, 1940.

THE INFLUENCES AT WORK

3

Common Law, though affected by the Canon Law, was true to
its own genius and strong enough to hold its own. From the
political philosopher’s point of view the lawyer's first task was
to define the proper relationship between the powers of the
supreme governor and the rights of the people.
Thirdly are to be set factors which make up the character
of a group yet cannot be reduced to a set of systematic conclu­
sions or tabulated regulations. The processes of community-life
cannot be portrayed as successions of rigid forms, although
never more than in the Middle Ages was social theory expressed
in clear-cut concepts. Men educated in definite principles were
not thin upon the ground, and they were confident they could
control social processes. Their logical and legal terminology,
however, should not lead us into simplifications which do
violence to the movement of history.
The current was flowing from literary and scientific human­
ism to speculative theology. For all that St Thomas excogitated,
whatever his followers have done since, no cloistered scholasti­
cism removed from the jostling interests of the world, but a
dialectic racy enough for the artistae, the students of the liberal
arts and the sciences who mourned his death more than did
the divines of Paris University. We must read between the lines
of his argument and respond to poetic images descending from
the mountains of myth, to the beat of folk-rhythms half-heard,
to heroes of romance, to customs rooted in the tribal mass and
to causes which inspired troubadours, evangelicals and spiritual
tramps when they questioned the conventions of a propertyminded community.
Finally, the onset of the new Aristoteleanism. Its desiccated
later effects are more easily described than its exciting humanity
at the time. It was then neither obscurantist nor did it hug an
exclusively a priori method, which later invited the contempt of
post-Rcnaissance scientists. The rational investigation into
Nature was conducted in a temper that was empirical and not
at all servile to accepted authorities. Its political science
discovered a City of Reason which could be studied apart
from the teaching of the Church, and from which, some
contended, priestly interests should be banished.
Λ scientific social doctrine slowly emerged from the academic

4

THE INFLUENCES

AT WORK

and homiletic literature of the medieval clerks. A political
rationalism began to shrug off the theology set forth by Church
authority. Seized on by propagandists and ministers of the
Nation-States, a secular jurisprudence eventually dissolved
Christendom into an uneasy concert of Christian nations and
then, after the divisions of the Reformation, into an agreement
of ethical moods between Christian individuals. That conse­
quence was long delayed, but already before the Renaissance
the idol of the Prince, clad according to the Roman Law and
divested of ecclesiastical trappings, was being erected in
majesty. And to each State its Caesar. The vision was translated
into a method of government, and lay authority was furnished
with an instrument for die complete control of public life: the
stricter legalism which tightened internal civil discipline was
paralleled in the life of the Church. Citizens became subjects.
Equity was reduced from a general virtue to a special function
of the legal executive. The State might or might not tolerate
an authority, whether of personal conscience or of a free
association, the judgments of which ran counter to its own.1
The premisses were present in the high Middle Ages. Divines,
dccretalists, post-Glossators, wandering poets, gospellers, min­
strels, masters of arts, prelates, politicians, crusaders, landhungry adventurers—all had different ideas about how men
should live together. Like other schoolmen, St Thomas was a
plagiarist and a nimble one, for often he improved on the
original and on occasion, taking an argument from its context
and placing it in his own, changed it almost out of recognition.
In his writings can be discerned, sometimes developed and
sometimes in germ, many of the leading themes of Western
political philosophy.
1 R. M. McIver. The Modern State. Oxford, 1926.

I
THEOLOGIANS

encyclopedia, the twenty books of Etymologia^
was the main quarry for medieval writers who tried to
build in continuity with the past. Or rather, it was like a
stonemason’s junk-yard in which fragments of social doctrine
from classical antiquity were heaped rather than arranged,
ill-fitting pieces of different stones and styles, waiting to be
worked into a coherent edifice of jurisprudence.1 Hence it came
about that details from Plato and Aristotle were used before
their political theories were known, and odd bits of the Roman
Law before its general shape appeared.
Acquaintance with the Greek Fathers was scrappy, at first
through anthologies, Flores and Excerpta, later through chains
of quotations in scriptural commentaries, Catenae. Latin trans­
lations of St John Chrysostom’s Homilies on St Matthew’s
Gospel were in circulation and parts of St John Damascene’s de
Fide Orthodoxa had been brought home like relics from the
Crusades by a lawyer of Pisa and were enshrined in Peter
Lombard’s Sentences. St Cyril of Alexandria was quoted, also
the Cappadocian Fathers, St Basil, St Gregory of Nyssa and,
more frequently, St Gregory Nazianzcn, a congenial spirit to
the gentler days which were dawning. An interesting line of
contact with the Greek Fathers and the religious thought of
Byzantium stretched through the Cistercians of Austria and
Hungary.2
_ _______
_
t Isidore’s

S

‘ St Isidore, Bijhop of Seville (d. 636). Optra PL, Ixxxi-lxxxiv.
\V. M. Lindsay, Isidori Hispalensis Etymologiarum Stu Originum libri xx. 2 vols.
Oxford, 1911. Quoted about too times in the Summa Theologica, 90 times in
the Second Part which deals with moral and social science. For the difficulty
of squaring different texts sec ia-2ae. xcv, 4 and aa-2ac. Ivii, 3.
1 G. Hofman. Johannes Damaskcnos, Rom und Byzanz.’ Orientalia Christiana, xvi,
pp. 177-90· Rome, 1950.
See E. M. Buytaert on the influence of Damascene and the versions of Burgundio
and Cerbanus. Franciscan Studies, x, pp. 434-43; xi, PP· 3°~9> 5°“3· Franciscan
Institute Publications. Text Series 8. St Bonaventure. New York, «950, 1951,
1955·

5

6

THEOLOGIANS

Extracts were not always authentic or verified and accurately
rendered: thus an early text about the vivifying influence of
Christians in the Empire was ascribed to St Gregory Nazianzen
and taken to declare that two social principles existed corre­
sponding to man’s dual nature, the Church being compared to
the soul and the State to the body.1 Medieval dialectics delighted
in such Pythagorean pairing; spiritual power was compared
with material power, male to female, light to darkness, the
new Adam to the old, the sun to the moon, and usually to the
advantage of Church authority. St Thomas’s knowledge of
Greek was slight; even so he drew more fully than his scholastic
predecessors and contemporaries on Greek Christian literature,
and was reported to have remarked that he would exchange
the whole city of Paris for Chrysostom on Matthew.8
Robert Grosseteste, the leading Hellenist of the thirteenth
century, possessed Origen’s Homilies, Basil’s Hexameron and
works by or ascribed to John Chrysostom, John Damascene and
the Pseudo-Dionysius, but his main reference was to the four
great Latin Fathers, Ambrose, Jerome, Augustine, Gregory,
and to Isidore and Bede.3 It was from them that the medieval
writers gleaned what they knew about the institutions of
Roman antiquity, though the histories of Julius Caesar and
Livy and the social satire of Juvenal were also referred to. The
glories of Rome which were their inheritance were gains from
the fall of Troy. As Hildebert, Archbishop of Tours (d. 1134)
wrote :
sic ex Aenea crescunt Romana trophaea,
sic gens Romulea surgit ab Hectorea.
* 2a-2ac, lx, 6, ad 3.
*11. F. Dondaine. ‘Les scholastiques citent-ils les Pères de première main?’
RSPT, xxxvi, pp. 231-43. Paris. 1952.
C. Baur. ‘L’entrée littéraire de saint Chrysostome dans le monde latin? Revue
d’histoire ecclfsiaslûjtie. viii, pp. 249-65. Louvain, 1907.
A. Wilmart. ‘La collection des 38 homilies latines de saint Jean Chrysostome?
Journal qf Theological Studies, xix. pp. 305 sqq. Oxford, 1918.
G. Grccnen. ‘Thomas d’Aquin: documentation patristique? DTC. xv. I. 741.
Paris, 1946.
* R. W. Hunt. ‘The Library of Robert Grosseteste? Robert Grosseteste, Bishop and
Scholar, p. 125. Ed. D. A. Callus. Oxford, 1955.

AUGUSTINIAN SCHOLASTICISM

7

Ciceronian sentiments—Cicero was a favourite author with
St Augustine—were echoed which cannot always be found in
so many words by consulting the original author: thus St
Albert appealed to Cicero for his definition of law—right
written down to further what is virtuous and block what is
contrary, dial Tullius quod lex est jus scriptum, assistens honestum,
prohibens contrarium.1 St Ambrose’s de Officiis Ministrorum was
modelled on Cicero’s de Officiis·, he taught that the Emperor was
within not above the Church, and was less deferential to the
temporal power than another revered authority, St Gregory
the Great, who said that if the ruler did what was uncanonical
then we had to put up with it as well as we might without sin.
Paradoxically St Gregory did more than any pope before
Hildebrand to give political weight to the spiritual power. St
Irenaeus and Tertullian, known during the Carolingian period,
were little cited in the thirteenth century, and the ante-Nicene
writers, with the exception of Origen, constituted no significant
portion of its patriotic documentation.
Far and away the leading authority was St Augustine, the
master of the theological movement of which the Sentences of
Peter Lombard (d. 1160) remain the most famous monument.
They provided the favourite text for commentary, but were
improved on by the work of the later Augustinian schoolmen,
William of Auxerre (d. 1231), William of Auvergne (d. 1249),
John of Rochelle (d. 1245), Alexander of Hales his debtor and
St Bonaventure (d. 1274).2
writings of St Thomas were
in this tradition, yet already they forecast a new response to
natural ethics and the dignity of secular law.
Augustinian Scholasticism proposed no distinction between
the theology of the Christian Revelation and rational phil­
osophy. Devout reflections from the Scriptures about the vanity
of earthly things were combined with vigorous and sustained
speculations about them, a tribute to the interest they held.
The literature of Nco-Platonism was tapped, as to a lesser
extent was that of Arabic Aristoteleanism : Proclus and Avicen­
na were consulted, and the Pscudo-Dionysius was an esteemed
1 Commentar)· / Politics, cap. i
1 J. de Ghellinck. Zz mouvement théologique du XIIc. siècle. 2nd cd. Brussels, 1948.
P. M. Pcrantoni. Prologcmena to the Summa of Alexander of Hales. Qparacchi. 1948.

8

THEOLOGIANS

and frequently quoted authority. Social philosophy was absent
from the searching and synthetic Summa Philosophiae, once
attributed to Robert Grosseteste, the organizer of philosophical
studies at Oxford, but now with more likelihood to Robert
Kilwardby (d. 1274), Provincial of the English Dominicans
and Archbishop of Canterbury.1 It showed no advance beyond
the political position of St Augustine.
This was best discovered in his writings against the Donatists,
for the de Civitate Dei was less a treatise on political theory than
on Christian apologetics.1
2 The old Stoic and Patristic contrast
between innocence and convention was sustained. The social
application of force was defended because otherwise the com­
munity would not hang together. Nevertheless the memory of a
Golden Age, when men were fresh from the hand of the Creator
and were free and equal, still lurked. Innocence was enmeshed
in the bonds if not of sin then of practical needs wrapped round
us by the facts of life after human nature's lapse from original
righteousness. As Newman said, material force was the ultima
ratio of political society everywhere. Slavery, private property
and coercive authority were all institutions set up with divine
approval to make the best of a bad job—sex and marriage were
similarly extenuated.
The unanimous conviction that all power came from God
was shot through with the suspicion that there was something
of the bully in secular authority; it was an imposition, tolerable
only because the alternative was worse. Abel lived the simple
life, Cain built the first city. Was not the title to ownership
merely prescriptive, and dominion not much better than
robbery grown respectable? The Apostle had spoken of the
rulers of the world of this darkness; Satan was free to roam, and
1 C. K. McKeon. A Study of the Summa Philosophiae of the Psatdo-Grosseteste. New
York, 1949.
E. Gilson. The Unity of Philosophical Experience. London, 1938.
Reason and Revelation in the Middle Ages. New York, 1939.

2 J. N. Figgis. 77w Political Aspects of St Augustine's City of God. London, 1924.
G. Combes, La doctrine politique de saint Augustine. Paris, 1927.
N. H. Baynes. The Political Idea of St Augustine's de Civitate Dei. London, 1936.
R. II. Barrow, Introduction to St Augustine, The City of God. London, 1950.
H. Eibl. Augustinus vous Gôttereich gum Gollesstaat. Freiburg, 1951.
A. Lauras and H. Rondct. ‘Le thème des deux cités dans l’oeuvre de saint
Augustine.’ Etudes augustiniennes, pp. 99-160. Paris, 1953.

DOMINION AND SIN

9

the spiritual principalities and the powers of nature they
governed were not entirely subservient to God’s sovereignty.1
Indeed such political doctrines as can be pieced together from
stray references in sermons and scriptural commentaries may
be made to look like essays in social pathology. At most they
accorded the State only an interim respect.
St Peter and St Paul had impressed the duty of obedience,
nevertheless to some early Christians civil authority represented
Anti-Christ. They found reasons for refusing to co-operate in
the life of the secular community and for anticipating the
millenium. Had not the Apocalypse pronounced a doom on
Rome for spilling the blood of the prophets and saints? Even
the less shaggily devout joined in the dirge, Alas, alas, that great
city! However otherworldly their aspirations, they lamented that
the craftsmen were gone, the trumpeters and pipers heard no
more. They too joined in rebuilding the Empire. Europe
became Christian, the leaders of the Carolingian Renaissance
were clerics, and Charlemagne was the Frankish Justinian and
die Rector Ecclesiae. All the same, Radbert styled him Pharaoh,
the oppressor of his people, and Walafrid Strabo depicted him
as a tyrant.2 The persuasion that political subjection was a
curse lingered in theological tradition; indeed it has never
died, like the sympathy with primitive anarchism which is
evoked by the myths of the West. Traces of it appear even in St
Thomas, who was the first to take up a stand against the
propter peccatum hypothesis of secular power associated with the
name of political Augustinism.3
The Church on earth had never regarded itself as the society
of the godly and elect, and had never so separated itself from
sin as to become a clique. Under the guidance of pontiffs like
Gregory VII and Innocent 111, austere and saintly but pre­
pared to deal with the world as they found it, Church policy
and discipline accepted property and sought to possess secular
power. The idea, discoverable in St Augustine, that the State
might be founded on crime and lack the true justice which
* C. B. Caird. Principalities and Powers: A Study of Pauline Theology. Oxford, 1956.
O. Cullmann. The State in the
Testament. London, 1957.
’ H. Fichtcnau. Das Karolingitehe Imperium, pp. 255, 333. Zurich, 1949.
* H. X. Arquillièrc. L'augustinisme politique. Paris, 1934.

ΙΟ

THEOLOGIANS

hinged on righteousness and the Christian religion, was already
losing its force. Against it could be set the Church’s practice of
consecrating rulers after they had taken their Gospel-oath to
rule as Christian men. All power, whether to bear arms as a
knight or to teach as a doctor, must be blessed before it could
be exercised. Nor would the inherent worldlincss of secular
authority be so evident in an age when Church and State were
not separate and the social soil was fertile of such Christian
growths as free associations protected by law, parliaments and
universities.
For other reasons also religious writers might hesitate to
condemn the earthly city as wicked Babylon. Prelates exercised
great temporal power, and wanted more ; the Canonists of the
Curia claimed universal lordship for the Pope. Many clerks from
a higher spiritual level made a concerted attempt to charge the
workings of government with Christian virtue. Power must de­
clare the majesty of God justice must be done and be shown to be
done. Many of the beneficiaries of the devout humanism which
was a legacy left by the twelfth century, were men of affairs.1
In brief a Christian culture was being transformed into a civil­
ization which accepted with confidence the things of this world.
That the effects were manifest in widespread social reforms
and a growth of public spirit is not maintained, still less that
men were better then than now. It is merely noted that a
lightening of political pessimism prepared for St Thomas’s
entrance. He would not have shared Pascal’s censure that true
justice was absent from what the State prescribed and guaran­
teed by its laws, or Newman’s pathos that the sight of the
world is nothing else than the prophet’s scroll, full of lamenta­
tions and mournings and woe. Let us look first at the biblical
theologians who ventured into civics prompted by Solomon’s
wisdom, and secondly at the speculative theologians who traced
the prolongations of Eternal Law into social psychology'.i.
2
i. The Bible as Mundane Guide
The Sapiential Books—Proverbs, Ecclesiastes, the Song of
* G. Paré, A. Brunet, P. Tremblais. Ln Renaissance du Xlle siècle. Les écoles et Venseigne­
ment. Ottawa, 1933.
: O. Lottin. Psychologie et Morale aux Xlle et XHIe siècles. i, ‘Problèmes de Psycholo­
gie.’ Louvain, 1942.

THE SAPIENTIAL BOOKS

II

Songs, Wisdom, and Ecclesiasticus—make for more profane
reading than the other canonical books of the Bible; there is
about them something sophisticated and almost epicurean. It
was this, not their spiritual sense, which increasingly attracted
the interest of the thirteenth century. In St Thomas’s unfinished
Commentary on the Politics five out of the eight scriptural quota­
tions were from the Sapiential Books, in his de Regimine Principum
twenty-one out of forty-eight, and in the discussion on political
authority in his commentary on Romans xiii twenty-three out
of seventy. St Albert’s Commentary on the Politics showed the
same leaning, a sign that attention was shifting from the
emblematic to the intrinsic interest of worldly things.
Fashions were changing from the days when texts were used
as pegs on which to hang moralities and when Solomon was
consulted less for his secular advice than for the mystical
teaching of his Canticle. Not for centuries, however, did history
aim at verisimilitude, not edification. Writers such as Peter the
Chanter (d. 1197) and Stephen Langton (d. 1228) were faithful
to the method of Alexandrine tropology and the symbolism of
St Gregory’s Moralia', allegories in the Bible explained universal
history, and this was the same as Church History. Veni sponsa
mea de Libano, cried the Song of Songs; it was Christ speaking,
commented St Optatus, the spouse was the Church and
Lebanon the Roman Empire because of its sacrcdness and
decency.1 Assumptus est Moyses de aqua, they read in Exodus,
and back came the echo from the Institutes ofJustinian, eligitur
rite magistratus de populo.2
William of St Thierry (d. 1148), die intimate of St Bernard,
treated urbanitas as charity in the City of God, not as the
lubricant for good citizenship.3 His humanist opponent,
William of Conches (d. 1154) wrote a gloss on the de Consolatione
Philosophiae of Boethius, the statesman who looked to eternity to
compensate for the ruin of his career in this world, and also a
Summa Moralium Philosophorum consisting of precepts mostly
from Seneca and Cicero. Boethius was a major philosophical
1 de Schimate Donalistarum, 3. PL xi, 1000.
3 H. Kantorowicz and B. Smalley. ‘An English Theologian’s view of Roman Law:
Pepo, Irnerius, Ralph Niger.’ Medieval and Renaissance SIt.dies, i, pp. 237-52.
London, 1941.
• See aa-aae, cxiv.

12

THE BIBLE AS MUNDANE GUIDE

influence on the School of Chartres which combined an ele­
mentary Platonism with a classical culture. It was the Victorines, Hugh of St Victor (d. 1141) and Richard of St Victor
(d. 1173) who began to open out the literal sense of the
Scriptures. They noticed the threefold division, ethics, econ­
omics, politics; thereafter the indications increased that a new
science was about to be entertained, the proper study of which
was the earthly city.1
The earliest political treatise was the Policraiicus of John of
Salisbury (d. 1180), a systematic account of the duties of a
Christian prince unmentioned by St Thomas.2 As a descrip­
tion of the conditions of an organic Christian commonwealth
it surpassed the later de Instructione Principum. of Giraldus
Cambrensis (d. 1220).3 The Respublica was the Western world,
the orbis latinus. The soul of the body politic was the Christian
faith and priests guided by the Pope discharged its functions.4
All the laws were religious and holy since their purpose was
right living. John stood without rival among his contemporaries
for his knowledge of the ideas and institutions of the ancient
world; he followed the footprints of philosophers, yet reached
no scientific theory about the nature of the political community.
A third of his scriptural quotations were from the Sapiential
Books.
The scientific humanism of the period looked to the same
sources; thus Alexander Neckham (d. 1217), the foster-brother
of Richard Coeur-de-Lion, whose five books de Piatura Rerum
were the earliest to consider such subjects as the use of the
magnet in nautical science and synderesis, the basis of natural
ethics. Biblical exegesis began to blend theological devotion
after the manner of the Victorines with the drier philosophical
1 Didascalion, ii, 30. Practica divided into (i) solitaria, ethica, moralis·, (2) privata,
oeconomica, dispensativa·, (3) publica, politica, civilis. PL dxxxvi, coi. 759.
3 C. C. J. Wcbb. loannis Sarisburicnsis Episcopi Camofensis Policralici sive de Nugis
Curialium cl Vestigiis Philosophorum Libri viti. Oxford, 1909.
J. Dickinson. The Statesman's Book ofJohn of Salisbury. New York, 1927.
H. LicbcschiitZ. Medieval Humanism in the life and writings of John of Salisbury.
Warburg Institute, xvii. London, 1950.
P. Dclhaye, ‘J·
*'
bien supreme d’après le Policraticus de Jean de Salisbury,’
ΛΤΛΑί, xx, pp. 203-21. Louvain, 1953.
* See Policraticus iv, 3 ; v, 2 ; viii, 17.
* Sec Policraiicus iv, 3; v, 2; viii, 17.

ΤΙ! IRTEE NT H-CENTURY EXEGESIS

*3

interests of the Parisian Summists. William of Auvergne, a
pioneer into Aristotle’s natural philosophy, wrote commen­
taries on Proverbs, Ecclesiastes, and the Song of Songs before
1225. Afterwards Bishop of Paris, he encouraged the friars and
was the friend of Roland of Cremona (d. 1253),
^irst
Dominican Master and Regent of Studies at Paris, who wrote
a commentary on Job not insensitive to profane values.*
1 To
his regency succeeded Gucrric of St Quentin (1233-42) whose
commentaries on the Sapiential Books were perhaps more
imbued with the new Aristolcanism than were the parallel
works of Hugh of St Cher (d. 1263) who occupied the other
Dominican chair at Paris and epitomized the biblical scholar­
ship of the age. Both connected the Natural Law with the inner
drives of things towards their full stature, towards esse sive
bonum; they began to look towards purposes working within
physical processes, not only at mental patterns constituted
outside them, and to venture a scientific, as opposed to a
dramatic reading of the world. Hugh spoke of Ecclesiastes as
an instruction in ethics, physics and theology. High in the
administration of his Order during St Thomas’s early academic
career, he was the first Dominican to be created cardinal. A
patriotic Frenchman, he alluded proudly to Philip Augustus—
Bouvines had been won in 1214—and would not allow the
Emperor to be sole successor to Roman power and referee in
the game of international politics.2
St Bonaventure’s commentary on Proverbs, which became
a standard work, was written for piety (1257). The focus
remained fixed on heaven, not on earth, even in the later
Dominican commentaries of William of Tournay (d. 1272),
William of Alton—the Regent who succeeded St Thomas at
Paris (1259)—and John ofVarzy (d. 1278). Their purpose was
1 E. Filthaut. Roland von Cremona, O.P. und die AnJange der Scholastic im Predigerorden.
Vechta, 1936.
1 Λ. Dondaine. ‘Un commentaire scripturaire de Roland de Crémone: Le livre de
Job.’ AFP xà, pp. 109-37. Rome, 1941.
F. M. Hcnriquet. ‘Les écrits de frère Guèrric de Saint-Quentin.’ ΛΤ/ΙΛί, vi,
pp. 191-2. Louvain, 1934.
O. Lottin. Psychologie et Morale aux Xlle et XIHe siècles, ii, p. 83. Louvain, 1948.
P. Glorieux. Répertoire des maîtres de théologie de Paris au XIIle siècle. Paris, 1933.
B. Smalley. ‘Some Thirteenth Century Commentators on the Sapiential Books.’
Dominican Studies, ii, pp. 318-55. iii, pp. 41-77, 236-74. Oxford, 1919, 1950.

THE BIBLE AS MUNDANE GUIDE
«4
homiletic rather than civic. Proverbs taught us how to live
virtuously, Ecclesiastes how to despise worldly vanity, the
Canticle how to love God. A scientia legum was mentioned but
its nature was not explored. The prospect of the City of Reason
had not been delineated and for many years men looked to
the Bible rather than to the classical authors for their philosophy.
St Albert died in 1280; phoenix doctorum, philosophorum princeps,
declared the epitaph inscribed on his tomb in Cologne, major
Platone, vix inferior Salamone—greater than Plato, scarcely less
than Solomon. It was the epitome of praise, and the epilogue
to the age.
The Dominican Vincent of Beauvais (d. 1264) was a typical
witness to the state of social theory before the entry of Aristotle’s
Ethics and Politics. A familiar of the royal court, he composed
his Speculum Majus, an omnium gatherum of information, for
the education of Louis IX’s family. He was no theological,
philosophical or legal specialist, but five books of the Speculum
Morale provide a fair picture of contemporary social science.1
The first, on scientia oeconomica, consists mainly of good advice on
household management, including poultry-keeping; the next
broaches, but no more, the subject of scientia politica, for, after
fifteen short chapters about nations and States and eighteen
about rulers, 109 chapters deal with laws; the remaining three
books treat of legal processes and crimes. The proportion
suggests the difference between the 1240s when he wrote and
the 1250s when Aristotle was coming into his own, and the
1260s when St Thomas began Iris expositions of moral and
natural philosophy. Vincent meditates on his wide collection of
heterogeneous facts, but he is not a synthetic thinker and,
despite the theological bearing of his interests, one looks in
vain for an ordered body of thought. He died only ten years
before St Thomas, yet he belonged to quite a different academic
generation.

1 Speculum Doctrinale, vi-x. The whole work, the Speculum Majus, also known as
the Bibliotheca Mandai (Benedictine edition, Douai, 1624) was divided into
three paru, the Speculum Naturale, the Speculum Doctrinale, and the Speculum
Historiale. The Speculum Morale was a fourteenth-century· compilation from the
writings of St Thomas, Peter of Tarentaise, Stephen of Bourbon and others.
A. Steiner. Vincent de Beauvais: de eruditione filiorum nobilium. Medieval Society of
America. Cambridge (Mass.), 193B.

VINCENT OF BEAUVAIS

Ij

His preface apologises that only a few small blooms from
Aristotle arc arranged, nonnullos Aristotelis flosculos, and those
chiefly on physical and mathematical subjects. He refers to the
Ethica Nova, the early thirteenth century translation of the first
book of the Nicomachean Ethics, and repeats Aristotle’s division
of moral science into the monastic, the economic and the
political. He shows none of the familiarity with Aristotle’s social
and political doctrine evident in St Thomas’s early systematic
work, the Commentary on the Sentences (1253-5). He makes no
mention of the Politics, but paraphrases—possibly from Michael
Scot—a conspectus of scientia civilis by Alfarabi, whose com­
mentary on the Posterior Analytics and treatise de Ortu Scientiarum
were accepted authorities on scientific method. He faithfully
reproduces the features, historical, moral, and legal, which his
contemporaries considered essential in public life. He empha­
sizes the importance of custom, continuity, and stability; next,
he inquires into the virtues which should invest the ruler; third,
he measures social conduct by laws enacted, having regard,
however, to the legislator’s intention.1
His approach to politics is not pedantic, for practice is
engaged as well as theory; the tact des choses possibles should go
with agreement on the meaning of words, rationes nominum.
Words call for definition, otherwise reasoned discussion is out
of the question; a city, for instance, is constituted by its
inhabitants not its buildings, a people by its citizens not the
populace. Government should be accommodated to the ways
in which human groups do work in fact, though opportunism
is no substitute for a doctrine.2 Politics and jurisprudence arc
treated as identical studies. He accepts Azo’s datum, that law
is sometimes strictly taken to mean the authentic constitutions
made by the Roman people, sometimes more widely to include
every reasonable statute, and insists the legality should be clear
and manifest; nothing so becomes the legislator as plain speak­
ing. On divisions of law his terminology is no more exact
than St Isidore’s; Civil and Canon Law are both included
under human law, and their principles are common. He
reminds himself that definition is dangerous in civil law, but
1 Speculum Saturate, i, io. Speculum Doctrinale, iv, 4. vii, 4. 5.
1 Speculum Doctrinale, vii, 6.

i6

THE THEOLOGY OF NATURAL LAW

that God’s Law of Nature is constant under all surface varia­
tions.1
Vincent of Beauvais almost warms to a properly political
dialectic, but he has not shed a moral rhetoric. He narrates and
moralises about the practice of regia virtus, but docs not reach
to the origins and nature of political power. Plutarch has finely
described the model ruler—qualis debet esse princeps eleganter
descripsit in libello pulcherrimo, qui inscribitur Institutio Trajani—and
this sets his own tone. His inspiration comes from biblical
theology, not from philosophy, and his vast florilegium is not a
scientific study. About it lingers the glow of the humanism of
Chartres already fading from the schools, and his mirror
reflects the decoration of the high-medieval French Gothic
rather than its structure.12*4

The Theology of Natural Law
Another advance towards political theory was conducted by
the theologians, mainly from their own resources without
drawing on the jurists. Until the end of the thirteenth century
their inquiries into the origins of political authority remained
more searching than those of the philosophers. They went back
to the very beginning of law. Doth not wisdom cry T was set up
from everlasting, from the beginning, before ever the earth was.' ?8 They
had meditated on St Augustine’s exaltation of the Eternal
Law which is the Ratio Divina behind all law: by me kings reign,
and princes decreejustice:1 The far peaks seemed to close in as they
surveyed the slopes sweeping down to the valleys. When he
appointed the foundations of the earth, then I was sent by him rejoicing
in the habitable parts of the earth; and my delights 'were with the sons
of men.5* Human beings were invited to receive the divine
1 Ibid, vii, 34, 35, $6, 43» 54·
2.

With reference to St Isidore’s distinction between fas and jus, vii, 57 may be
compared with 2a-2ac, Ivii, 1, ad 3.

: E. Mâle, .-iri religieux du XIIle siècle en France. Paris, 1931.
J Proverbs, viii, 23.
4 Ibid, viii, 16. Contra Faustum, xxii, 27, PL xlii, 418. de Libero arbitrio, i, 6. PL
xxxii, 1229.
A. Schubert. ‘Augustinus Lcx-aeterna Lehr nach Inhalt und Quellcn.’ Beitrage,
xxiv, 2. MQnstcr, 192{.
* Proverbs, viii, 29-31.

LAW BEFORE HUMAN’ LEGISLATION

»?

exemplars by embracing them per modum cognitionis, not by
being subjected to them without choice per modum actionis et
passionis.1 The Eternal Law thus brought into human psychol­
ogy was called the Natural Law. This was no abstraction of
Stoic philosophy, but a historical command, heralded by the
Jewish Revelation and effectively maintained by the Christian
Church. The theologians set themselves to investigate its
workings through moral and legal acts.
An immemorial conviction persisted that a right existed
more primitive than any instituted by custom or legislative acts,
a law in nature which set bounds to human will. In the
Antigone it held sway over the gods themselves: Aristotle had
taken the allusion and contrasted a universal logos at work
within natural processes with the particular regulations
imposed by man. The Roman Law itself, historically a majestic
piece of pragmatism composed from governmental edicts, halfconsciously seemed to imply an ethical feeling for an underlying
decency in things. Its foundations were not altogether arbi­
trar}', and if particular details were determined by empirical
observation and methodic positivism, not by religious, mystical
or philosophical insight, it represented on the whole a norm of
social behaviour which corresponded with common convictions.
Its teachers and practitioners, though concerned less with
philosophical speculations than with the fulfilment of obliga­
tions arising out of existing social conditions, discerned a
difference between the ‘natural’ and the ‘artificial’, at least to
the extent that a juridical ‘logic of facts’ could be discerned
underneath particular rules grounded on political expediency.
Classical jurisprudence, however, was not backed by a
dogmatic theology nor was public life watched by a Church
which was no department of the State but an independent
witness Lo eternal moral values. The litigiousness of the Greeks
bred commercial attornies, but their philosophical bent was
not towards legal analysis. Between the traders busied with
exchanges and the moralists and statesmen engaged with high
questions of the commonweal no dignified class of jurists
appeared, as with the Romans, who reflected on the theory and
shaped the legal instrument of government. Even the Romans,
1 See ia-2
e,
*

xci, 1, 2. xciii, 1, 3, 4, 5, 6. xciv, 1, 2.

ï8

THE THEOLOGY OF NATURAL LAW

despite their use of such terms as jus naturae and lex naturae^ were
lawyers first and philosophers afterwards; probably they
arrived at the jus naturale through their dealings with the jus
gentium. Concerned with practical solutions, they were tolerant
of what did not in fact conflict with the interests of the State,
but their habit of mind anticipated no collision between a
higher law and administrative needs. Unlike the medievals they
never asserted that Natural Law could override concrete and
positive ordinances; their appeals to ethical ideals were scarcely
more important than rhetorical decorations.1 The Christianiza­
tion of the Empire tended to change that, yet the Institutes
accepted the legal fact of slavery while agreeing it was against
natural rights.
The term Nature would not ring with the same tone to
third-century authors and to the compilers of the Corpus Juris
under Justinian and, still less, to the thirteenth-century philoso­
phers and theologians of law. From natural instincts; however
suspiciously regarded in ascetical literature, followed certain
corollaries, among them the notion of primeval justice. Inborn
rights were given us by our Creator, and these, with the growth
of Christianity as an organized social force, were made politi­
cally more telling. They could be, and were, invoked against
civil tyranny and backed by the Church. The early Scholastics
learnt from St Augustine the lesson that the Natural Law
reflected the exemplars of the heavenly city set above this world,
and that the codes men devise for themselves are but artificial
shifts to deal with shadows, sometimes no more than accom­
modations to sin. Its nobility was in no sense diminished when
writers of a later generation discovered from Aristotle a new
respect for physical reality. They left the positivism of the
working order to the lawyers, and while scarcely noticing the
literary adumbrations of a social ratio which had appealed to
the Stoics, they were intent on rights apparently not created by
1 E. Barker. Introducticn to 0. Gierke, Natural Laic and the Theory ofSociety, i, p. xxxvii.
Cambridge, 1934.
J. W. Jones. Historical Introduction to the Theory of Law. p. 103. Oxford, 1940. The
Law and Legal Theory of the Greeks. Oxford, 1957.
P. Vinogradoff. Outlines of Historical Jurisprudence : Vol. ii.
The Jurisprudence of the Greek City, pp. 11, 12, 82, 173, 250. Odxford, 1922.
G. M. Calhoun. A Working Bibliography of Greek £znc.Cambrige
1927.

ORDER ON DISORDER

19

the wall of any human legislator, and by digging into them they
cleared the ground for political science.
The non-Aristotelcans were worried by the problem, how
man was born free and yet everywhere was in chains. If their
idea of liberty was richer than Rousseau’s their idea of bondage
was correspondingly more tragic. The liberty and equality of
our original state were etched against the restrictions and
exclusions of our present lot. The memory of Eden still lingered
underneath accepted conventions. Slavery, private ownership
and civil subjection, they thought, had been ordained propter
peccatum in order to establish some discipline where otherwise
anarchy would reign. Was not the strength of such institutions
that of positive and coercive law rather than of the gracious
plan proper to the state of human innocence ? Certainly they
commanded respect and obedience, for they had divine warrant
and the apostolic injunction was forthright about subjection to
the powers that be. All the same the first Christian millenium
was not propitious for political idealism. Submission to secular
authority could be recommended almost in the mood of making
the best of a bad job, and judgment on the best type of political
regime be determined by which was likely to do the least harm.
The issue, moreover, was clouded by ambiguity: natural
might be taken either in contradistinction to artificial and
signify what was innocent and straight from the hand of God
or to supernatural and signify what was primitive and unregen­
erate. The attraction the Augustinists felt for the unspoilt was
offset by their hesitations about the uninhibited. Then, also,
natural could mean animal as opposed to rational, and, as in the
classification of ‘unnatural’ sins, this could deepen the division
between instinctive adaptations to social environment and
reasoned contrivances to civilize it.
Nor was the confusion lessened by St Isidore who transmitted
inconsistent texts describing the Natural Law. On one side
Gaius (d. 160) represented it as the ordinances pronounced by
natural reason and uniformly observed by all peoples; so it
could be identified with the jus gentium, and set off against the
positive law or jus civile which was peculiar to the State. On the
other side Ulpian (d. 228) described it as what nature teaches
all animals; it was natural in that it was not deliberately

20

THE THEOLOGY OF NATURAL LAW

enacted, and so could cover unpcrplexed adjustments to groupliving. Obviously it needed to be complemented by set agree­
ments if men were to come to terms with actual social divisions
and conflicts. For instance belligerents commonly agreed to
respect the persons of ambassadors. Such widespread rational
additions to the Natural Law were found in the jus gentium;
they became part of the jus civile when officially adopted by the
State. On this view human law could be represented as an
accommodation to disorders arising from sin: one had to look
for a fault somewhere when captives were allowed to be sold
into slavery'. That ordinances were burdensome and bound up
with penalties was in keeping with Augustinist sentiment, and
may partly have accounted for Ulpian’s popularity. On the
other hand it was embarrassing to agree with him and leave
Natural Law on the animal level, not least because of the Stoic
teaching that reason in Nature was answered by reason in our
mind and that Law was a pronouncement of Reason.
The difficulty, if largely a matter of terminology, was enough
to exercise the schoolmen, profoundly respectful of the words
of received authorities. It was complicated by the fact that
animal, rational and spiritual were treated as so many separate
layers not fused together, and it was not cased until the
developed Aristoteleanism of St Thomas brought out the
family-likeness of things and the analogies running through all
creation. Then it was marked how natural appetites aspired
from lowest to highest, and some continuity between biology
and law was confirmed.
Huguccio (d. 1210), whose Summa on the Decretum has been
called the greatest achievement of twelfth century Decretist
scholarship, was content to repeat both formulas without
harmonizing them. Slowly the distinction came to be drawn
between what is instinctive, natura ut natura, and what is
deliberate, natura ut ratio. Put forward by Philip the Chancellor
(d. 1236), it was elaborated by the early Dominican and
Franciscan doctors, Roland of Cremona, Guerric of St Quentin,
Hugh of St Cher, John of Rochelle, Alexander of Hales, and
St Albert.1 They were exploring the psychological and moral
1 O. Louin. Le droit naturel chez taint Thomas d’Aquin et ses prédécesseurs, p. 74. Bruges,
»93*·

AMBIGUITIES

21

medium in which the Eternal Law was received, and in the
process discovered an outline design for social living and
principles of law more profound than a pattern imposed as a
corrective to sin. An order was inherent in the human com­
munity which was antecedent to any method of governing its
potentially recalcitrant elements. In that liverty-loving age men
sought to make their theory and institutions of a piece. No
wonder, then, that St Bonaventure recognized the jus naturale
properly so called in the Gospels, though he recurred to the time­
worn descriptions—in its more proper sense it was common to all
nations, and in its most proper sense was impressed on all animals.1
Still more questions confused the issue. Was the Natural Law
the Divine Law? Was the Mosaic Law the Natural Law? And
under what heading should its ceremonial precepts be placed?
And where the ‘other law in my members’ of which St Paul
spoke? Was Canon Law the continuation of Gospel Law? Not
until St Thomas’s Summa Theologica defined and divided the
field was a common grammar for discussion available. It was
then, when the specific element in Original Sin was isolated,
that animal appetites were distinguished from sinful concu­
piscentia, and associative impulses were accepted as essential to
human nature and able to be infused with grace.2 Then also
Aristotle’s Ethics and Politics made themselves felt.
Social theology had prepared the ground. A blend of medi­
tations on charity and the reign of law, inspired by the Timaeus
and St Augustine, of homilies on the duties of rulers and of
discussions about ecclesiastical and feudal rights, it had also
caught a glimpse of the divine reason working through world
events. Its history was sacred history, its book the Bible, its
theme the acts in time of the eternal Father, the Logos, and
the Spirit. Its drama began with the Creation and Fall and
would end only with the final restoration of mankind. Its
classic was the de Civitate Dei.3
1 C. Baur. ‘Die Lehre vom Naturrecht bci Bonavcntura.' Feslgabe f. C. Bdumker,
pp. 2x7-39. Münster, 1913.
* xa-fiae, Ixxxii, 3.
* E. C. Rust. The Christian Understanding of History. London, 1947.
J. Daniélou. Essai sur le mystère de l’histoire. Paris, 1953.
R. L. P. Milbum. Early Christian Interpretations qf History. London, 1954.
K. Young. The Drama of the Medieval Church. Oxford. 1933.
P. Geyl. Use and Abuse of History. Oxford, 1956.

22

THE THEOLOGY OF NATURAL LAW

Moreover the divines were in the seats of power. They knew
the world, and they knew how to rule it. They had been engaged
victoriously in the great contest between spiritual and temporal
dignities within the single community; they had formulated the
notion of sacramental jurisdiction, and tightened the early
medieval penitential discipline of the Church; they were
familiar with legal processes, and keenly interested in main­
taining prescriptive rights and exemptions.1 Yet their practice
was clearer than their theory, their grip on administration was
firmer than their reflections about the corruption within power,
and their position was the reverse of that of the British
Socialists in the 1920s, who had a doctrine but had yet to learn
the arts of government.
They were to discover that blunter claims to earthly rule
were to be pushed, and that in order to face the new secular
temper more was required than the exposition of the moral law
or expertise with the law of the land, more than advice on how
to save your soul or maintain your existing rights. The State
was being born, a natural group which enacted laws in response
to its present needs and without seeking ecclesiastical approval.
At Mantes in 1203 Philip Augustus had declared that matters
of feudal law which involved no moral issues were not for the
Pope to decide; by the end of the century the temporal power
of the Church encountered a resistance more consolidated than
any that had been shown by the Emperors, and soon to be
supplied with a political doctrine. A philosophy of the State
was only gradually formed, and as late as 1266 Roger Bacon
noted the gap, which detailed investigation into points of law
did not fill. ‘A part of moral philosophy sets forth the public
laws, first about divine worship, and then about the common­
wealth, cities, and kingdom: under it is contained the civil law
of emperors and kings throughout the world, and many have
written much on this. It is to be lamented, however, that this
section is not dwelt on by the Latins, except in a legal and
positive manner (nisi laicaliter) occupied with what in fact has
been enacted, not in a philosophical manner, as by Aristotle
and Theophrastus.’2
1 A. Luchaire. Le Concile du Latran et la réforme de ΓEglise. Paris, 1908.
2 Opus Tertium, xiv. Ed. J. S. Brewer. London, 1859.

II
JURISTS
was a heritage from classical times and men
schooled by Virgil, Cicero and St Augustine admired its
ideals. Lawfulness however, stood for more than a
temper in the thirteenth century since the Roman Law had
come on the scene, a definite code and an expanding instru­
ment of government. Its practitioners were among the gainers.
Their prestige was heightened with the improvement of their
studies and techniques. Jokes, of course, were made at their
expense, then as now. Could you be a lawyer and an honest
man? Could archdeacons be saved? The civil lawyers were
jealously watched by the ecclesiastical authorities, the canon
lawyers were criticized as careerists by religious reformers.
Their practices grew and juridical concepts spilled over into
theology, for example the distinction between the clavis ordinis
possessed by all priests and the clavis jurisdictionis which had to
be conveyed to them by higher authority. Legalism set the
style for social life both sacred and profane.1
It was the era of the great lawyer-Popcs and of travelling
Justices upholding the Common Law. No question then arose
of government being allowed to override the law or to improvise
a code at will ; rulers were required to maintain old traditions
and to find warrant for their acts in custom or in the Corpus
Juris as adapted to the needs of a community in transition from
feudalism to capitalism. Social decisions turned on points of
order, indeed political action and warranted action went
together in that legal-minded age.1
2*4
Nevertheless social psychology exhibited an easy-going
oman justice

R

1IV Sentences XIX, i, a, iii.
’ F. M. Powicke. ‘Reflections on the Medieval State.' Transactions of the Royal Hist­
orical Society, 4th Series, xix, p. 6.
P. Vinogradoff. Roman and Canon Law in Medieval Europe. Oxford, 1929.
T. F. T. Plucknctt. Legislation of Edward I. Oxford, 1949.

4

23

24

JURISTS

attitude towards the sanctity of law, a certain swagger more
easily recognized than defined—it was less a matter of unsub­
missive conduct, for that is present and even prominent in the
most legalistic communities, than of a mood not awestruck
by its own inventions. Our Lord had said that the sabbath
was made for man not man for the sabbath, and those who
cherished the spiritual law of the Gospel, about which St
Augustine had written so eloquently, were not inclined to hold
lesser texts in excessive reverence. The forms of human law
should be punctilously observed—so much was granted, and
to that extent the proprieties were strict—but moral teaching
was not cluttered with legal injunctions. The rhythms of social
and religious life were not mechanized according to the complex
measures of a code. The liturgy re-enacted the mysteries of
Christ’s life, and was not regarded as a sort of court-ceremonial
before the eucharistie throne.1 Conscience was not yet caught
in systems of canonico-moral casuistry—although these must
be allowed the credit of having brought home the distinction
between the external and the internal forums, between crime
before the community and sin before God.
True, the wages of sin was death to the soul; on the other
hand, a crime or delict could be taken in your stride, at least
with regard to its temporal consequences, if you were prepared
to appeal and make use of all the resources of the law, and, if
these failed, to take your medicine. Sanctions were severe, for
the extreme penalties of death or excommunication were
commonly imposed. The human texture was perhaps tougher
then than now; the penances accepted, if physically more
painful, were psychologically less taxing. Schism was con­
demned because it broke the fellowship of charity and heresy
against faith was a sin held in peculiar horror. Nevertheless men
were not obsequious and could criticize a dominant party-line
in religion without doubting their own orthodoxy or under­
mining well-accepted institutions.
The distinction between public office and private person was
robustly maintained ; the dignity was one thing, the individual
worth of its holder was another. The English Dominican,
Thomas Wallis, for reasons since confirmed, objected to a pet
1 L. Bouyer. Life and Liturgy. London, 1957.

THEOLOGIANS AND LAWYERS

25

theological theory of Pope John XXII, an ugly character to
oilend, and went off to beard him in his own court at Avignon.1
This was not the procedure of later ages. There was a sturdiness
in the life of devotion not easily abashed or haunted by the
fear of not playing safe with a code. Obsessionals existed of
course, but scrupulosity was not prominent in spiritual litera­
ture, and sufferers were not treated with a quasi-Icgal reflex
apparatus to allay them with assurance of security. Xot that
controversies were conducted delicately, for it was an age of
fierce and often coarse invective; a condemnation could be
charged with curses which were sometimes the fruits of fertile
imaginations working on the allegorical senses of the Old
Testament. Perhaps familiarity bred contempt, perhaps some
of the spiritual menaces—and inducements—were like a
currency which loses its weight with inflation, perhaps, best of
all, it was just a sense of proportion. Anyhow a meticulous regard
for human authority was no more generally evident then than
now if you eavesdrop on canon lawyers talking among them­
selves.
To the theologians belongs the credit of holding off the threat
of a legal system being imposed like the Prussian State as its
own purpose and not as an instrument of a higher condition
of society. The jurists came in for some rough handling from
the conservative divines in the first half of the thirteenth
century: at one moment Honorius III checked the teaching
of Roman Law in the schools of Paris, though not precisely
because of the dangers of the excessive claims pushed for it nor
because of the edge it put on morals.2 In the flush of their
success the lawyers were not to be restrained: some of the early
Civilians imagined themselves to be philosophers on alleged
hints from Boethius about Aristotle’s topology and methodo­
logy'; some canonists equated Canon Law with theology,
though in theory’ the distinction and subordination of the two
disciplines seems to have been pretty well preserved outside
legal circles. Ridiculous and disagreeable, remarked St Thomas,
uncharacteristically tart, about the intrusion of decrctalism into
1 T. Kâppeli. Le prode contre Thomas Waieys. O.P. Etudes et documents. Paris, 1936.
* M. M. Davy. Les sermons universitaires parisiens de 1230-31, pp. 88-90. Paris, 1931 ·

26

JURISTS

theology.1 He had reason to be sensitive on the subject; the
study of law was the main path to advancement, consequently
the teaching of the Church might not always be presented in
proper perspective by holders of high office. The qualities of a
successful administrator were not necessarily those of a divine.
Against the dangers and the abuses of medieval legalism
should be set its greater influence for good. It transformed a
barbarism—whether that was savage or kindly depended on
the extent of the social penetration of Christianity—into a
civilization where human exchanges could be settled by rights
made manifest by due show of evidence, not by combat or
ordeal. Brute force was tamed and verdicts arrived at without
appeal to preternatural intervention. The times compare
favourably with our own, when barbarism has returned,
sometimes crude and sometimes using subtle methods invented
by modern science for breaking up the free personality and
making it conform to the pattern imposed on the mass.12 Then
torture was used for eliciting evidence; this was not so bad,
though bad enough. Roman practice was more ruthless than
English practice, and Edward I’s men resented the papal
recommendation that torture should be used against the
Templars; it was contrary to the decency of Common Law.
Men should fight for their laws as for their wall, Heraclitus
had declared, and in the thirteenth century the law was the
acknowledged protector of their freedom. Bracton spoke of
lawyers as dedicated to the art of the good and equitable; they
were like priests, for they worship justice and minister sacred
rights.3
Papal policy supported the north Italian communes in their
struggle against the Emperor; Alessandria was named in
gratitude after Alexander III.4 Historical circumstances deter­
mined the alignment, yet not entirely, for it was decided not
only on reasons of security for the States of the Church or to
seize an advantage for future aggrandisement; it corresponded
1 Contra Retrahentes, 13. XI Quodlibcts, Q, ad 1. 2a-2ae, Ixxxviii, 11.
3 J. Rollin. Police Drugs. London, 1955.
3 di Legibus et Consuetudinibus Angliae. iv, 3. Ed. T. Twiss. London, 1878.
4 M. Pacaut. Alexandre III; Elude sur la cor. ‘plion du pouvoir pontifical dans sa pmsde et
dans ton oeuvre. Paris, 1956.

THE CHRISTIAN JUSTINIAN

27

to the sympathy of die Canonists for representative government.
It is no exaggeration to say that on the whole their effect on
secular history was on the side of the civil liberty and what now
would be called constitutional democracy. They shared in the
undying effort to have government carried on according to
reason not appetite, and by mandarins not war-lords or palace­
eunuchs.
Let us go back to the beginning of ‘the ghost story’, as it has
been described, ‘of the second life of the Roman Law after the
demise of the body in which it first saw the light.’1 Under
Justinian the jumble of legislation which fell under the jus
vetus (statutes passed under the Republic and early Empire,
the decrees of the senate, and the writings of authoritative
jurists) and die jus novum (ordinances of the middle and later
Empires) was organized into a coherent Corpus Juris. This
consisted of the Code (529) and of the Digest or Pandects (533)
which organized the old and new regulations respectively, of
the Institutes (533), an elementary outline, and of the Novels (565)
or fresh constitutions.*
2
i.
Byzantine State-philosophy may have derived from Eusebius
who upheld the Emperor’s right to rule ‘by the grace and in
the image of God’. Certainly Justinian’s legislation was
Christian in feeling. Dante recognized the fact when paying
tribute to the vocation of Rome to pacify the world under
justitia and pietas. Concerned with reformation as much as with
punishment, its tone was hortatory ; unlike the old Roman Law
which proffered no sanctions for well-doing, it presumed that
good should be done as well as evil avoided. Its judgments
manifested a feeling for freedom, favor libertatis, and a tender­
ness which preferred dementia to asperitas, benignitas to acerbitas,
aequitas to duritia juris. It was in tliis form, without the later
modifications of the religious Ecloga of the Isaurian dynasty,
and uninfluenced, so far as is known, by the great law schools
of Beyrut and the East, that Justinian’s masterpiece was
received in the West: this was fitting, for he governed in Latin
1 P. Vinogradoff. Ronton Law in Medieval Europe, p. 13.
'Corpus Juris Civilis. i. Institutiones, edited by P. Kruger; Di*esta, edited by T.
Mommsen. Berlin, 1920.
i. Codex Justinianus, edited by P. Kruger. Berlin, 1915.
iii. Novellae, edited by R. Scholl and W. Kroll. Berlin 1912.

28

JURISTS

and was a westerner in his thought as he was in his military'
strategy.1
Whereas other Latin forms in Byzantium suffered a noiseless
dissolution, the Roman Law prevailed for well nigh a thousand
years until the fall of Constantinople to the Turk (1453).
Swamped in the West by the tide of tribal invasions, it did not
entirely disappear during the Dark Ages. Bits of it were copied
and used. Cassiodorus, ‘the last Roman Statesman’, and a
conserver of classical texts, was a faithful Home Secretary to
Ostrogoth kings. Private apprenticeship to its forensic practice
may have continued when academic instruction in its plan
and details ceased. Some maxims were preserved by St Isidore
and garbled texts appeared in the laws of the Visigoths and
Burgundians who had been Roman allies of the Empire for two
centuries before the collapse of imperial authority: service
comradeship communicated a common style and, as in the case
of the British with Ghurka regiments, left traces of procedure.
Countryfolk have long memories, and the invaders were not
always heathen or without respect for the institutions of the
ancient provinces in which they settled. Hence leges romanae
survived alongside the leges barbarorumy and legal romanilas
impregnated the Carolingian Renaissance of the eighth century.
Lanfranc, a lay-lawyer before he became a monk, is a pointer
to the continuity of the juridical tradition in the north of Italy.
Nevertheless when the integral Roman Law was salvaged
late in the eleventh century at Bologna only fifty miles from
Ravenna, the last outpost of Byzantium in Italy, how tech­
nically superior it appeared when compared with the tribal
and regional customs of the West. It was as if a pilgrim,
marvelling at the marbles and mosaics, the splendour and
symmetry of Santa Sophia, looked back to the rugged edifice
and rude ornament of his cathedral at home. Ralph Niger, the
contemporary of John of Salisbury', moralized the story of
Absolom who slew his brother, Ammon, for seducing his sister :
1 Paradùo. vi. Monarchia, ii, 5.
N. Lenkeith. Dante and the Legend of Rotne. Warburg Institute. London, 1952.
R . G. Renard. ’Droit romain et pensée chrétienne.' RSPT, xxvii, pp. 57-62.
Paris, 1938.
H. St L. Moss. 7 he Birth of the Middle Ages. Oxford, 1935.
T. G. Sandare. The Institutes of Justinian. Introduction, p. xxx. London, 1898

THE CHURCH AND ROMAN LAW

2Q

in like manner, he concluded, the Roman Law killed the evil
custom of trial by ordeal.1 The violence of combat was super­
seded by the formal display of evidence for both parties in a
dispute, the rough and ready justice of tribal courts by exact
procedure according to cool reason.
The refining process was matched in theology. The Ransom
Theory of the Atonement lingered in Peter Lombard, and
Abelard (d. 1142) was in advance of his times—that was one
of his troubles—when he rejected the idea that the devil was
our jailer, yet slowly the story of a savage price and a doubledeal, more appropriate to a saga than to doctrinal exposition,
gave way to explanations more credible and devout.2 The
central argument on vicarious satisfaction of St Anselm’s (d.
1109) dialogue, Cur Deus Homo, combined the accipitalio of the
Roman Law and Germanic notions of making good.
The Church played the leading role in this legal revival.
Ralph Niger went on to describe how the Roman Law dawned
again and, under the patronage of the Papal Court, spread to
the kingdoms of the West. To some extent the Church had
never lost it, for its discipline embodied elements from the
classical jurists handed on by such writers as St Isidore. At a
time when folk-customs were becoming the laws of the realms
founded on the ruins of the Roman provinces it was recognized
that clerics and monks formed groups obedient to an older
code : Ecclesia viril lege romana.9 The Papacy, moreover, inherited
the Byzantine administration in Central Italy. Not surprisingly,
therefore, the Canonists got off to a flying start in adapting the
Corpus to the Church’s own discipline. The Civilians were later
in doing the same for the State. There were exceptions,
Lanfranc for instance, yet in the main the West lacked an
educated class of laymen corresponding to the Byzantine civil
lawyers who were able to discuss questions of Church and
State on equal terms with the clergy.
' II Kings, xiii.
H. Kantorowicz and B. Smalley. ‘An English Theologian’s View of Roman
Law: Pepo, Imerius, Ralph Niger.’ Medieval and Renaissance Studies, i, pp.
237-52. London, 1941.
C. Leitmaier, Die Kirchs und die Gottesurteile. Vienna, 1952.
1 See 3a, xlviii, 4, 5. xlix, 2. ia. xxi, 4.
3 P. Fournier. L’Eglise et le droit romain au XIIle siècle. Paris, 1921.

30

JURISTS

A century before Accursius (d. 1260) wrote his great Gloss,
which was the earliest major systematization of the Civil Law,
Gratian composed his Decretum between 1149 and 1151. Pub­
lished privately, it soon came to enjoy in Canon Law a prestige
equal to that of Peter Lombard’s Sentences in theology. Laying
under contribution the work of the Bologna doctors, he reduced
to some sort of order the Church’s existing legislation, already a
rough imitation of Roman models.1 Soon the Canonists were as
far ahead of the Civilians in exploiting the Corpus as the papal
officials were of the king’s servants in the business of administra­
tion. At first their credit was greater, for a theological aura sur­
rounded their proceedings and they could urge a higher
origin and more divine titles for their Princeps. When in 1200
Innocent III invoked the Translatio Imperii in assuming the
authority to provide an emperor during the disputes between
Hohenstaufen and Welf he was following common form. That
Caesar was Caesar only by will of the Pope was not felt to be
a far-fetched claim, nor that civil law should defer to the
canons of the Church.
The arts of government which flourished in the papal court
were expressed in its chancery style; the modus dictaminis, the
rhythm, the forma scripturae, all were brought to a consummate
pitch. Exact to the smallest detail in the seal of a document,
the rules of authentication were as fine as those of the Bank of
England for detecting forgeries. Its official impersonality antici­
pated the reforms of Frederick II and Piero della Vigna in
Sicily and worked more smoothly to more lasting effect. ‘Criticise
it as we may’, writes Dr. E. F. Jacob, ‘and as most contempor­
aries did, for its delays and venality, in the Roman Curia men
moved in a different world to that of a State; a world where
subtle distinctions were heard, and delicately shaded opinions
expressed, the spiritual home of educated and intelligent
humanity.’2 How sophisticated they must have felt and how
they must have dissembled their amusement when they adjudi­
cated between Giraldus Cambrensis, with his Celtic imagina­
1 J. Kantorowicz. Studies in the Glossators of the Roman Law. p. 80. Cambridge, 1938.
Studia Gratiane. Ed. J. Forchiclli and Λ. M. Stickler, 2 vols. Bologna. 1953-4.
* ‘Innocent III.’ Cambridge Medieval History, vi, p. 36. 192g.
A. C. Clark. The Cursus in Medieval and Vulgar Latin. Oxford, j g to.

POLITICAL ALIGNMENT OF LAWYERS

3’

tion and sense of grievance, and his rough Norman opponents,
with their accusations that the bishop-elect was a horse-thief.
Not until towards the end of the thirteenth century, when
Church and State began to separate and solidify into distinct
bodies, did Canonists and Civilians come into serious conflict,
and even then the issues were ambiguous ; there was no uniform
taking of sides in the struggle between Papacy and Empire. Of
course the ideal of the supreme Princeps emancipated from
Church control was bound to attract the lay-minded, and Peter
Crassus, the Ravenna jurist, in his Defence of Henry IV, a treatise
which announced ‘the entry of Roman Law into medieval
political thought’, denied the deposing power of the Pope, or
‘the monk Hildebrand’, as he called Gregory VII.1 On the
other hand, some of the eminent lawyers of Bologna, Orleans
and Naples had no cause to support the Emperor, and not all
Canonists were by any means Papalists cither by temperament
or conviction ; in fact many, particularly among the cardinals,
developed the theory, which was to lead to the Conciliar
Movement, that the Pope was the constitutional representative
of the congregatio fidelium and stood to the College of Cardinals
as a bishop to a cathedral chapter.2 Bishops, too, zealous for
their rights as ‘ordinaries’, and for diocesan and provincial
rights and franchises, were prepared to support Rcgalism in
order to maintain themselves against the Curia, and this
episcopal temper persisted during the Gallican controversies
and until the Vatican Council.
I. Canonists
Eventually made shapely and consistent, the Canon Law in the
early Middle Ages was still unformed and muddled. A patch­
work of precepts drawn from Jewish, New Testament, Con­
ciliar, and Pontifical sources was mixed with Roman maxims
and rubrics, and diversified according to regional compilations.
The change was wrought by the masterpiece of the Camaldolese
monk, Master Gratian (d. before 1173), the Concordia Discord1 C. N. S. Woolf. Ba,lotus of Sassoferralo, p. 70. Cambridge, 1913.
1 W. Ullmann. Origins of the Great Schism. London, 1948.
B. Tierney. Foundations of the Conciliar Theory : The Contribution of the Medieval
Canonists from Gratian to the Great Schism. Cambridge, 1955.

CANONISTS
32
antium Canonum. This was no mere miscellany of tests in chron­
ological order of publication but their systematic distribution
according to topics in a running argument according to the sic
et non method of the schools. Known as the Decretum Gratiani, a
standard text-book not an authoritative code possessing the
weight of law, it was complemented by various compilations,
more or less methodical, of synodical canons, notably of the
two Lateran Councils of 1179 an^ 1215, and of the decrees of
the lawyer-popes, Alexander III (Roland Bandinelli, d. 1181),
Innocent III (d. 1216) and Honorius III (d. 1227). These
collections were later replaced by the famous Decretals of
Gregory' IX (d. 1241), into which were later inserted the
decrees of Innocent IV (Sinibald Fieschi, d. 1254).1
The Decretals formed the novum jus, which went beyond the
academic moderation of Gratian’s vetus jus and declared the
centralizing policy which consolidated and expanded the
achievements of Innocent III. Officially promulgated by the
Bull Rex Pacificus (1234), they were compiled by St Raymund
of Pennafort (d. 1275), w^° was praised by Vincent of Beauvais
for pruning—somewhat roughly, some have complained—five
volumes to the size of one and twenty-five distinctions to five.2
A Catalan and already an expert jurist when he joined the
Dominicans, afterwards legal adviser to the Pope and for a
short period Master-General of his Order, whose primitive
constitutions he edited in the form that survived for nearly
seven centuries, he was the doctor decretorum, a specialist in the
jurisprudentia divina of Church discipline—the very phrase
indicates the mixture of theology and law effected when the

*A. L. Richter and E. Friedberg. Corpus Juris Canonici: 1. Decretum Magistri
Gratiani. Leipzig, 1879. ii. Decretalium Collectiones. Leipzig, «881.
P. Fournier and G. le Bras. Histoire des Collections canoniques en occident depuis les
Fausses Décrétales jusqu'au Décret de Gratien. 2 vols. Paris, «931-2.
G. le Bras. Histoire du Droit et des Institutions de l'Eglise en Occident. Prologomènes.
Paris, 1955.
..
A. van Hove. Commentarium Locaniense ad Codicem Juris Canonici. Prologemcna. 2nd
ed. Malines, 1945.
F. Cimitier. Les Sources du Droit canonique. Paris, 1930.
F. Thaner. Die Summa Magistri Rolands. Innsbruck. 1874.
* Speculum Doctrinale, vii, 49.
F. Balmc and C. Paban. Raymundiana. Monumenta Ordinis Praedicatorum
Historica. Rome, 1898, «901.

LEGAL IMPURITY

33

doctrine of sacramental repentance passed into the external
forum of penance. Gratian had spoken of the potestas ligandi et
solvendi in one context to mean the apostolic power of remitting
sins, in another to mean the power ofjurisdiction over the public
order. Raymund’s Summa Juris and Summa Casuum systematized
the penitential doctrines and disciplines promoted by the
Lateran Decrees, and developed the distinction drawn by
Alexander III between two results of sin; the offence to God
was amended per cordis contritionem and the scandal to the
Church per oris confessionem et operis satisfactionem according to
officially determined scales of satisfactions or indulgences.1
A religiously-charged dialectic was at once a political strength
and a juridical weakness in the cause of the political Canonists.
An academic impurity was a characteristic of its partisans,
particularly when they engaged in polemics.12 For they were
promiscuous. Strict argumentation from legal premisses was
mingled with biblical allegories and moralities, a priori philosophism with political opportunism, divine ordinances with
appeals to historical titles, sometimes authentic and sometimes
spurious: a case in point was the Donation of Constantine, the
exposure of which by Lorenzo Valla inaugurated the critical
treatment of sources.3 They were makers rather than students
of history. Theological excurses compose much of Gratian’s
collection, and two works by St Thomas, which from their
titles might be expected to be devoted to legal topics, turn out
to be discussions of heresies concerning the Trinity and the
1 P. Anciaux. La Théologie du sacrement de pénitence au XHe sikle. Louvain, 1049.
J. MacNcill and H. Garner. Medieval Handbooks of Penance. New York, 193B.
G. le Bras. ‘Pénitenticls.’ DTC, xü, I, col. 1160-79. Pari»» «933·
E. J. Arnould. Le Manuel des Péchés. Paris, 1940.
M. van de Kerckhove. La notion de juridiction dans le doctrine des Décrétâtes et des
premiers Décrétalistes. Assisi, 1937.
R. Mortimer. The Origin <f Private Penance tn the Western Church. Oxford, 1939.
’J. de Ghcllinck. Le mouvement théologiq^e du XHe sikle, ii, 3. ‘Melange des matières
théologiques et juridiques.’
'Gratien, Ιλ théologie dans scs sources et chez les glossateurs de son “Décret”.’
DTC. vi, 2. 1731-51. Paris, 1947.
A. van Hove. Commentarium Lovaniense. i, 3. De methodo scientiae canonicae
ejusque connexionis cum scientia theologica et cum jure rornano.
3 G. P. Gooch. ‘Modern Historiography,' in Maria Teresa and Other Studies', p. 219·
London, 1951.

34

CANONISTS

Incarnation, with an eye to Abbot Joachim’s followers.1 Roger
Bacon would have liked Canon Law purged of the waste of
civil law and kept for theology.1
2
Canon Law eventually formed a coherent system of genuine
laws many of which were not entirely new. All emanated from
an authority whose credentials could not be challenged. The
entrance of theological externals into such a system was fair
enough. More troublesome was the intrusion of Canon Law
into theology. As legalism spread so devotion sometimes tended
to be clogged and some distinctions were blurred; thus there
was some confusion in theory between sacramental validity and
liceity.3 In practice clerical students who were careerists forsook
theology for the scientia lucrativa. Gregory in cobwebs, wrote
Dante to the Italian cardinals, Ambrose in forgotten corners,
Augustine given up, together with Dionysius, Damascene, and
Bede, and they hold forth about I know not what manner of
laws, Innocent, and Hostiensis—and why not?—the first sought
God our noblest ends, from the others come prebends and
benefices.4*
8
The strict lawyers among the Canonists were well able on
occasion to examine and expand a case in the purity of their
own technical medium. Crime could be considered in abstrac­
tion from sin; it was a public offence which earthly authority
could judge so long as it kept to outward deeds and did not
refine on motives it could only guess at. Accordingly a verdict
was to be arrived at in the light of die evidence brought forward
according to the due procedure, and sentence pronounced
secundum allegata even when privately its justice might be
doubted?
Nevertheless die policy of the Papalists was to extend rather
than to limit the bounds of Canon Law. Not rash, but relentless
1 Expositio tae decretalis ad archidiaconum Tridentinum. Expositio super 2a mdecretalem ad
eumdem. Opusc. xxiii, xxiv.
* Obus Tertium, xxiv.
’ L. Saltet. Les rdordinations. Elude sur le saeremen! de l'ordre, pp. 289-96. Paris, 1907.
4 Epistolae xi, 7. Innocent was Sinibald Fieschi, Innocent IV; Hostiensis was Henry
of Susa, Cardinal Bishop of Ostia (d. 1277), author of the famous Summa
Hostiensis. See Paradiso xii, 82-5, in praise of St Dominic. ix. 133-6.4,
Monorchia ii, 3.
8 See 2a-2ae, Ixiv, 6 ad 3. Ixvii, 2.

CANONICAL SUPREMACY

35

and persevering, they were banded together to advance their
cause. This was the ideal of the spiritual control of the govern­
ment of Europe, advanced by Hildebrand and enlarged by
Innocent HI, who at his consecration preached on the text, I
will suddenly speak against a nation and kingdom, to root out and to pull
down, and I will suddenly speak of a nation and of a kingdom, to build
up and plant it', his views were not generally regarded as
immoderate.1 Theirs was not merely a system of academic
law nor of domestic discipline for the Church ; it was an engine
to bring the entire social organization under control. They
knew that the permanence of institutions lies in religion, not in
legal forms, and these they based on Natural Law of which the
Church was the guardian.2 They interpreted history to suit
their ends and shaped events in the process. Their uncom­
promising doctrine of Papal monarchy was the logical outcome
of a Christendom still united but which had burst the seams of
the Empire. The Pope had rightfully taken the Emperor’s
place. Past facts were enrolled and broken in to suit present
and future needs. The political Canonists possessed the quality
which has been admired in the Whigs—but with this difference,
they did not succeed.
It was as theocratic statesmen not as jurists, then, that some
of them identified their law with the divine law, and that more
would have enlarged its sway for the sake of the welfare of a
united Europe. As such they should be judged. They cannot be
dismissed on the pretence that their position was based only on
doubtful texts, mystical historicism and symbolical theology,
and maintained with a mixture of naivety and chicaner)'. Their
attempt at a spiritual despotism, not ignoble in its ambitions,
was impressive in its results. The Old Empire was long dead,
the New Empire was already declining; it had never been so
strong as it claimed and passed unmentioned by St Thomas.
The Church, on the other hand, was very much alive, and
unafraid of power.
1 Jer. xviii, 7-9.

M. Maccarrone. Chiesa e Stato nella dottrina di Papa Innoctnzio III. Rome, 1955.
* O. Lottin. Le droit naturel chez saint Thomas cT.Aquin et ses prédécesseurs, xi, 3.
S. Kuitner. Repertorium der Kamnistik (1140-1234). Prodromus Corporis Glossarum, i.
Vatican City, 1937.

36

CANONISTS

The effect was perhaps happier for civilization than for
simple devotion. To some extent a sacerdotal hierarchy was
transformed into a hierarchy of lawyers, ‘and in all ages the
lawyers, invaluable as a conservative force, have been as a body
greater enemies of reform than the priests’.1 The change was
more perhaps a matter of social psychology than of institutional
structure. The confident assumption of responsibility by the
clerics and their administrative technique combined to produce
a system in which the secular power was humanized and the
arts and sciences fostered. In that high culture and law-building
civilization organized religion was not a dead weight but a
quickening force and grace.2
The achievement answered the unanimous conviction that
the Church could magisterially judge all causes where sin was
involved. Innocent III had formulated the prerogative when,
after urging peace with King John of England, he had been
snubbed by Philip Augustus for meddling in a matter between
lord and vassal. Moreover, Rome was the repository ofjustice,
the sedes justitiae to which recourse could be had when justice
was denied in civil courts. A far-reaching moral surveillance
protected the orphan and defenceless against the avarice and
greed of magnates. Canon lawyers possessed the monopoly of
matrimonial legislation. They developed Roman principles of
law and created new’ ones which have since been recognized by
International Law—for instance, rules concerning safe-conduct
of envoys, diplomatic confidence, condemnation of treaty viola­
tions, the humane treatment of prisoners, the protection of
minorities, sanctions against aggression, the conditions of
treaties and peace settlements. They insisted on promulgation
as a necessary condition of law, for otherwise law would not be
addressed to the reason of its subjects. Their rules for discover­
ing evidence have served as models for judicial procedure. Many
key positions in the State were held by clerics, so were lecture­
ships in Civil Law.
1 H. Rashdall. The Universities of Europt in the Middle Ages, i, p. 139.
W. Ullmann. The Growth of Papal Government in the Middle Ages. A Study in the
Ideological Relation of Clerical to Lay Power. London, 1955.
’G. Schnürer. Kirch* und Kultur im Mittclalter, ii. Paderborn, 1926.
R. Hull. Medieval Theories of the Papacy. London. 1934.

THE PAPAL THEOCRACY

37
Altogether, when control over the disposal of benefices and
the temporalities annexed to ecclesiastical dignities are also
taken into account, the Papacy was a formidable social force,
indeed the greatest, and its servants the political Canonists
were at the peak of their power.1 They could legislate against
such practices as the docking of horses; the zealots among them
could compare the gold of the mitre to the lead of the crown,
and compute that the sacerdotal power surpassed the regal
power 7,644 times, that being the sun’s excess of size over the
moon.*
12 None would have agreed that canons could be enacted
only with the consent of the temporal ruler or in agreement
with the law of the land. It was natural they should be cham­
pions of the power which had created their class.
Humanly speaking the Canonists almost, but not quite,
succeeded in committing the Church to a temporal theocracy.
The strained interpretation of the text, here are two swords,
according to which both spiritual and temporal power had
been entrusted to the Church, was not generally accepted by
the theologians. If both were entrusted to one authority neither
would be fittingly used, wrote the Papal Chancellor, Robert
Pullen (d. 1146), and a century later theologians of the centre
were equally moderate.3 Official claims were more circumspect
XG. B. Pallieri and G. Vismara. Acta pontificia juris gentium. Milan, 1946.
S. Z. Ehler and J. B. Morrall, Church and State through the Centuries. Illustrative
documents, ii, iii, iv. London, 1954.
A. Potthast. Regesta Pontificium Romanorum ab anno isçjQ ad annum 1304. Berlin,
>874-5
A. Flichc. Le réforme Grégorienne et la reconquête chrétienne. Paris, 1947.
Z. N. Brooke. The English Church and the Papacy. Cambridge, 193t.
M. Maccarronc. Vicarius Christi: Storia del litolo papale. Rome, 1952.
G. Barraclough. Papal Provisions: Aspects of Church History, Constitutional, Legal and
Administrative, in the Later Middle Ages. Oxford, 1935.
M. Pacaut. Alexandre III. Ch. Lx., pp. 335-69. ‘Les doctrines politiques des
canonistes.’
For a summary of the Church’s teaching on International Law sec
J. Folliet. Morale internationale. Paris, 1935.
D. A. O’Connor. Catholic Social Doctrine. Westminster, Md., 1956.
1 W. Ullmann. Medieval Papalism. The Political Theories of the Medieval Canonists.
London,1949.
3 Luke, xx, 38.
F. Courtney. Cardinal Robert Pullen. An English Theologian of the Twelfth Century,
PP· 259-62. Rome, 1954.
J. Leder. ‘L’argument des deux glaives.' Recherches de science religieuse, xxi, pp.
299-339· Paris, 1932.

CANONISTS
38
than those of the publicists of the Canonical vogue. Boniface
VIII may personally have agreed with these young Turks,
nevertheless his Bulls Ausculta Fili and Unam Sanctam advanced
no novel and explicit claim to direct dominion over the world,
and when in 1298 he settled the dispute between England and
France he arbitrated in his private capacity as Benedetto
Gaetani.1 Not rarely the Pope was the only potentate who
acted as a good European, and strove to reconcile jealousies in
face of the common danger from the East. Despite the venality
and arrogance of the Curia, it spoke for the commonwealth of
undivided Christendom.
Civilian lawyers and politicians who supported the increase
of regal power in the Nation-States sought to restrict pretensions
to universal jurisdiction. They were anticipated by many
churchmen who were chary about pushing ecclesiastical
claims if that meant more centralization and tighter control
from the Papal Curia. Bishops had no wish to diminish their
local rights and shared their countrymen’s resentment about
being taxed for the benefit of foreigners.1
2 Even the friars,
influential in the highest circles, for they enjoyed pontifical
approbation and popular esteem—there was then a flourish
about them like that of the Light Division in Wellington’s
army—were not committed to the politics of the Canonist
Movement. The Franciscans, the leaders of an evangelical
movement, were neither hag-ridden by legal forms nor likely
to be awed by titles to power, however respectable, which
turned on ownership. Roger Bacon disliked the juridical
clatter, strepitus juris, of Church government, and Jacopone da
Todi, the author of the Stabat Mater, was an outspoken critic of
Boniface VIII.3
The Dominicans compared themselves to Jacob and the
Franciscans to Esau. They were more clerical in constitution
and perhaps more classical in temper—less emotional, Hastings
Rashdall judged—yet as a body they tried to resist Popes and

1 F. M. Powidce. The Thirteenth Century, 1216-1307, pp. 650-3. Oxford, 1953.
Christian Life in the Middle Ages, pp. 48-73· Oxford. 1935.
T. S. R. Boase. Boniface VIII. London, 1933.
2 Opu< Tertium, xxiv.
3 W. E. Lunt. Papal Revenues in the Middle Ages. New York, 1934.

THE FRIARS AND THE PARTY-LINE

39

rulers who appointed their men to administrative posts and to
back out of the work of the Inquisition which was thrust on
them: hints were dropped of their characteristic irony about
the man in possession.1 St. Albert was created Bishop of
Ratisbon in 1260; he resigned after one year, and reflected that
a prelate was expected to behave more like Sardanapulus than
like Christ. They could always be trusted to take an inde­
pendent line, as the Plantagenets discovered who planted
them in Wales and Ireland. The scientific exposition of natural
and revealed religion, which was their special calling, lifted
them out of the ruck of current prescriptions, and, though
doctrinally committed to the supremacy of the Pope, their
main bases were in places like Oxford and Paris where the
pretensions of the Curialists could be unperplcxedly resisted by
Church figures as orthodox as Grosseteste and St Louis. Their
strength lay in England, France, North Italy, the Rhineland
and the Low Countries, regions where nationalist feeling was
detached about the claims to empire asserted either by Caesar
or by Pontifex. When Nicholas IV sought to depose their
Master-General, Munio of Zamora, their representatives at the
General Chapter of Palencia (1291) acted like Nelson at
Copenhagen.2 Another Master-General, Hervé de Nédéllec (d.
1323), was a strong supporter of the rights of ordinaries.
It may be assumed that the distinction of the temporal and
spiritual spheres as maintained by die de Potestate Regia et
Papali of John of Paris (d. 1306) represented their common
opinion, at least in England and France.3 Apart from St
Raymund of Pennafort who was in a class by himself—though
mention may be made of Monaldus (d. before 1285), the author
of the Summa Monaldina, and Martinus Polonus (d. 1279), a
chronicler who drew up an alphabetical guide to the Decretum—
no prominent Canonist authorities came from the ranks of the
1 L. deLaegcr. ‘L’Albigeois au siècle de saint Louis? Rewe d'histoire ecclésiastique.
lii, i, pp. 26-50. Louvain, 1957.
* A. Mortier. Histoire des maîtres généraux de l'ordre desjrères Prêcheurs, ii, pp. 260-315.
Paris, 1905.
* J. Leclercq. Jean de Paris et l'ecclésiologie du XlIIe siècle. Paris, 1942.
M. Grabmann. Studien zu Joannes Qjtidort tvn Paris, O.P. Munich, 1922.
G. Digard. Phillippe le Bel et le Saint Siège. Paris, 1936.

40

CANONISTS

friars. They compiled directories which worked law into
morals, but rarely took degrees in the schools of law. The legal
activity of the English Dominicans John of Bromyard (d. after
1310) and William of Hotham (d. 1299), the favourite minister
of Edward I, was exceptional. Nicholas Trivet (d. 1328) and
Robert Holcot (d. 1349) were more typical; both were volu­
minous writers and the sons of judges—the latter indeed was a
lawyer at Oxford and Cambridge before he became a preacher
—but they left Canon Law and civil law severely alone.1 It is
noteworthy, too, that Positive Law was not overstressed by
John of Freiburg (d. 1314), tuba evangclica, whose Summa
Confessorum both carried on the work of St Raymund of Penna­
fort and ran into the devotional movement of the fourteenth
century. It was a capital work of pastoral theology which
systematized the multiplicity of decrees and practical rules in
canonical and casuistical writings without doing violence to the
principles of living morality set forth in the second part of St
Thomas’s Summa Theologica.2
The Dominican Ptolemy of Lucca argued that the Pope was
the true and proper lord of the Emperor, and two Austin friars,
Giles of Rome (d. 1315) and James of Viterbo (d. 1308),
combining Aristotclean and Thomist political theory with the
Augustinist criticism of secular power as lacking true justice,
were the publicists of a theocracy which gathered in all earthly
dominium, so much so that princes were subordinate to the
Pope even in the secular administration of their own realms.3
Yet in the main the doctrine of the papal plenitudo potestatis
came from the political Canonists rather than from the treatises
of the theologians; the Dominican and Franciscan masters
were curiously uncommitted to the theory when it is remem­
bered how active both Orders were in the business of the
Roman See.
’ B. Jarrett. The English Dominicans. p. 6l. London, 1921.
* M. D. Chenu. ‘Jean de Fribourg,’ DTC, viii, 1, col. 761-2. Paris, 1924.
3 Ptolemy of Lucca. Determinatio Compendiosa de Jurisdictione Imperii. Ed. M. Kram­
mer. Hanover, 190g.
Aegidius Romarins, de Ecelestica Potestate. Ed. R. Scholz. Weimar, 1929.
IL X. Arquillicre. Le plus ancien traité de l’église, Jacques de Viterbe, de Regimine
Christiano. Elude des sources et édition critique. Paris, 1926.
D. Gutiérez. De Jacobi Viterbiensis vita, operibus et doctrina theologica. Rome, 1939.

RESISTANCE TO CURIALSTS

41

Moreover, stiflish opposition was encountered from the
dioceses and ecclesiastical provinces. Devotion to the See of
Peter implied no tame acceptance of the fiscal charges and
administrative interference which went with centralization. A
new pharisaeism, engendered by the increase of positive laws
and the multitude of regulations, was resented, and the con­
demnation came to men’s lips, Woe to you, lawyers, because you
load men with burdens grievous to be borne.1 Λ great line of schoolmcn-bishops, the products of the movement which brought in
the universities and friars, succeeded the monk-bishops of the
twelfth century and preceded the civil-servant bishops of the
fourteenth and after. There were exceptions, such as Hubert
Walter, a commanding figure in the period who reserved his
best energies for secular affairs, but men like Langton, Edmund
Rich, Grosseteste, Kilwardby, Peckham, Winchclsey, and the
Dominican Innocent V looked beyond the mechanism of
Church government to the urgency of preaching and instruc­
tion. To the high theologians, especially those inspired with
the old humanism and the new hellenism, the Canonists were
workers in a subordinate department, to be watched lest
because of them the Church Militant acquired too large an
administrative tail. Roger Bacon’s flings at the ecclesiastical
commissars and St Thomas’s firm drawing of bounds to Positive
Law witness how little they intimidated the life of devotion.
Shrillness is no sign of strength, and when their claims became
exorbitant they were no longer able to enforce them, for by
then civil authority had grown in dignity and ability to protect
its own.
It must be admitted, however, that the pride of the Canonists
was not unfounded. Their organization has been compared to
that of Standard Oil in our own day. The association of medieval
clerks stretched across the Western World, from the Shannon
to the headwaters of the Euphrates, from the Tagus to the
Vistula; their establishments were linked together and super­
vised by the system of visitation; they achieved a legal unity
1 W. A. Pantin. ‘Grosseteste’s Relations with Papacy and Crown,’ in Robert
Grosseteste, Scholar and Bishop. Oxford, 1955·
C. R. Cheney. From Buket to Langton. English Church Government, 1170-1213.
Manchester, 1956.

42

CANONISTS

which transcended frontiers and proposed an equality which
contrasted with the class-distinctions outside. Famous profes­
sional soldiers of the fourteenth century and great mercantile
families of an earlier period might spring from obscurity, but
ordinarily it was only through the Church that the way lay
open for the character and talent of a boy of humble birth. By
making it possible for a peasant’s son to get learning and enter
on a high career, churchmen helped to break up a system in
which a man was tied to the land or to service founded on
territorial occupation.
Their active ideas which helped to humanize political institu­
tions and civil law may be considered under three headings.
First, the spiritual ability to master or at least to modify the
consequences of physical processes; secondly, the importance of
contract in public agreements; third, the need of election
according to proper procedure in the constitution of authority.
The conviction that justice, a Christian virtue, was spiritually
free and could break out of merely material bonds might be
expected of the organizers of an eternal salvation scheme. If the
canon lawyers were not theologians themselves, at least they
were the servants of theology. They were not backward in
appealing to the secular arm or squeamish about the use of
brute-force. All the same they were not hypocritical when, for
instance, they avoided the death-sentence and handed its
execution over to the secular arm; let no clerks at all be judges
of blood, said a canon of the Council of Westminster in 1102.
The fiction deferred to the idea that ministers of the New Law
should not be percussores aut occisores.1 They had no prejudice
against blood-letting, yet surgery was more severely forbidden
to clerics than the practice of medicine; here also symbolic
reasons were at work —Ecclesia abhorret a sanguine. They were
not so spiritual as to escape altogether the tendency common
to all medieval systems of lumping the innocent with the
guilty, and exacted reparation from the families or corporations
of offenders who had injured the rights of the Church. Never­
theless Canon Law maintained the principle of personal
responsibility for faults, and the feeling for it prompted the
1 2a-2ac. Ixiv, 4.

43
abandonment of collective excommunication by Innocent IV.1
The determination that events should not be merely allowed
to take their course entered into the arguments of Alexander III
on the Lateran decrees and of Grosseteste’s letters to William
of Raleigh, that such was the force of matrimony that it could
legitimize a child born out of wedlock.12 In seeking to convey
the effects of legitimacy the churchmen fell foul of an old
custom founded on a tribal and social instinct against ‘out­
siders’. There were sound reasons for it, yet it is not fanciful to
relate its laws to male vanity and conjugal jealousy, and to a
closed community which excluded bastards, eunuchs, and
foreigners. When they sought to bring the secular law into line
with Canon Law at the Council of Merton (1234) the prelates
were refused with the famous answer, Nolumus leges Angliae
mulare. Divine grace, however, knows none of these exclusions,
as the Canonists recognized for all their show of‘impediments’.
The Church is not a peculiar connection of ‘insiders’ ; even its
juridical constitution docs not shut it in. It is not a primitive
group. A Christian society, faithful to the teaching of St Paul,
aware of the mystery of spiritual procreation and of sonship by
adoption, and uncommitted to a blood-and-soil fixation or to
taboos on intercourse with strangers, will keep open house and
resist Apartheid. Neither let the son of a stranger, that hath joined
himself to the Lord, speak saying, the Lord hath utterly separated me
from his people. Neither let the eunuch say, Behold I am a dry tree.34
A. system constructed by human laws will inevitably be more
rigid and artificial than one formed by theology. It has been
said that an English court may shut its eyes to the facts of life,
and, not entertaining illegitimacy, may rule that a child may
be filius nullius, that is, not a child of lawful parents.1 To the
Church’s Law, however, all children, whether illegitimate or
LEGITIMIZATION

11. T. Eschmann. ‘St Thomas and the Decretal of Innocent IV, Romana
Ecclesia: A New Argumentation in Innocent IV’s Apparatus.’ MS. viii, p. I.
Toronto, 1946.
G. 1c Bras. ‘Canon Law.’ LMA., p. 357. Oxford, 1926.
* Robert Grosse'.esli Epistolae, xxiii, xxiv. Ed. by II. R. Luard, pp. 71-97. Rolls
Series. London, x86l.
* Is. Ivi, 3.
ta-2ac. cv, 3, ad 2.
4 Chancery Division. In Re T. and T. The Times, 13 Oct., 1956.

44

CANONISTS

not, belong by baptism to the household of the Faith and, by
dispensation if necessary, may reach the highest office.
A written code will also lack the springiness of custom, for it
is more arbitrary, less natural—a tower rather than a tree. The
Roman Law was no exception. All the same it was charged with
Christian values, both at its origins under Justinian and during
its development by the medieval clerics; its effect on the
community was not wholly one of mechanization. If to some
extent its official modes stiffened suppler folk-rhythms, it also
prepared for the exercise of a more civil Conception of liberty
than was allowed by the leges barbarorum. Popular lore might
credit a love-child with exceptional gifts of mind and body
whereas illegitimacy was an impediment to the sacrament of
Holy Order according to the canons; on the other hand the
clerics were readier than the lay-lawyers to master natural
processes, or at least to modify their results or break down the
barriers by legal action. Primitive groups, closed in on them­
selves, may live according to a kind of incest, which prevents
free communication and the multiplicatio amicorum.1 The influ­
ence of Canon Law tended to make the community wider and
more welcoming. The stranger to the tribe, no longer an
enemy, became the advena of the civil law or peregrinus of the
canons, and was granted rights accordingly.
The idea of marriage as a purchase, a barter between two
families represented by the bridegroom and the father
who gave away the bride, was being changed into a more
personal relationship. Canonists and theologians emphasized
the sacramental union of hearts; that was more important
than the property-bargain or actual procreation. Marriage was
a partnership of the man and woman concerned, which could
be valid by the contract of the two persons, per verba de praesenti
without witness or presence of a priest. This was little to the
liking of the Common Lawyers, who refused dower save in the
case of marriage ad ostium ecclesiae, and saved the situation, as
best they could, by insisting on banns, made obligatory by the
Lateran Council of 1215—it was there that Innocent III
revoked the existing legislation on the prohibited degrees of
» 2a-2ae, div, 9.

MATRIMONY A PERSONAL CONTRACT

45

consanguinity, a humane decision but one that ran counter to
ancient sentiment. The rights and wrongs of the dispute may
be left aside; the point is the value ascribed to individual
personality.
Canonists held that marriage was private contract and
not, as the older lawyers had taught, merely a consortium the
consequences of which were fixed by law; most moralists agreed
that marriage was ratified by consent, not copulation.1 The
maxim, consensus facit nuptias, ran through the fourth book of
Gregory IX’s Decretals. The theory was that the contracting
parties in marriage should be unforced; in fact an heiress was
still a pawn in the game of feudal power. The divines affirmed
that a wife was not owned by her husband and that the role
of children was not entirely submissive. The praise of virginity,
weaker perhaps than it had been in the days of St Jerome,
recognized a woman’s right to be just herself and was a
persistent factor in the history of female emancipation.
The person, rather than the head of a family was the centre
of responsibility in the political community if he were a male
and a property-owner. Civil or political association was pre­
ferred to despotic or patriarchal aggregation. These ideas, not
entirely foreign to classical Roman teaching, were strengthened
by the medieval progression from Status to Contract. The
theory and practice of making wills was warrant for the
individual’s ability to transfer domestic property rights.
Legally binding agreements could be entered into with
strangers to the family group. Jurisprudence entered into the
spirit of the current philosophy and theology of freedom, and
personal dignity and independence were seen in a fresh fight.
The credit for bringing this about belongs jointly to the disciples
of Gratian and Peter Lombard.
In this temper, too, the machinery of representation by
voting was devised. The weight of quality as well as of quantity
had to be allowed for, and the sanior pars balanced with the
major pars', the classical view was that worth should prevail
1 See 3a. xxix, 2. 2a-aae. Ivii 4. clii, 2, ad 1. V Ethics, ltd. 9.
J. Dauvillier. Le mariage dans le droil classique de PEglise depuis le Décret de Gralien
jusqu'à la mort de Clément 7. Paris, 1893.

46

CANONISTS

even when in the numerical minority.1 Other reasons, apart
from ecclesiastical practice in the promotion of cathedral,
collegial and monastic dignitaries, conspired to make the
canonists favour the transmission of authority through due
election, not through birth or the fact of possession. One was
their bent towards reasonable debate in the settlement of
difference. Another could be found in the circumstances of
their opposition to imperial or regal power, which made them
dwell on some act of popular consent as an essential condition
of legitimate sovereignty.
A working distinction between the office and the person,
originating in patristic literature, notably in the exegesis of
Romans xiii, had been developed by the theological and juristic
schoolmen. It was officially defined that sacramental power was
not dependent on the private worth of the minister.12 Office in
the Church was constituted by spiritual or pastoral status, and
this was apart from personal merit or performance according to
gifts of the spirit. All might be ministers of grace in the sense
that they were commissioned to teach, give the sacraments and
rule in die juridical body instituted by God. The difference has
been upheld on appeal to the House of Lords, which decided
that a leading Jehovah’s Witness had no right to exemption
from military service since his denomination did not allow for
the co-existence of two elements, a ministering or clerical
element and a lay element to which it could act as a regular
minister.3
The power of order, too, was distinct from ownership on a
personal tide. The distinction in Church order had its counter­
part in social philosophy: official position was neither a matter
of individual excellence nor held by the magnetism of the hero.
‘It is impermissible and foreign to the spirit of MarxismLeninism,’ said Mr Khrushchev when detailing Stalin’s
enormities, ‘to elevate one person and to transform him into a
superman possessing supernatural characteristics akin to those
1 F. M. Powicke. Stephen Langion, p. 8t. Oxford, 1928.
1 Dcnzinger, 424, 436, 584. Sec 3a, Ixiv, 5.
D. E. Hcintschel. The Mediaeval Concept ofan Ecclesiastical Office. Washington, 1956.
3 Walsh Ό. Lord Advocate. The Times, 20 July 1956.

OFFICE AND PERSON

47

of a god.’1 When the Summists appealed to the authority of a
saint or doctor it was not of his personal originality and excel­
lence they were thinking, but of a quasi-juridical guarantee
offered by the text that the doctrine so supported was worthy
of credit.12 So also the identification of an individual with his
social authority would have been a deviation from the social
doctrine of the Middle Ages. Will may set up power, but only
reason can make it right—and the reason in question was a
social reason articulated in the terms of a law well-understood,
commonly accepted, and binding on all.
Needless to say, political motives also entered into the
Curia’s attempt to ensure the rule of men most likely to protect
natural rights and religion. It intervened decisively against
dynastic power on occasion, for instance when Innocent III
ruled out Philip of Suabia. Sensitive to the dangers of being
threatened by imperial power from its southern flank in Sicily,
it took the side of the democratic communes in North Italy.
The policy was opportunist; it was also faithful to canonical
notions of order, which lay closer to the Greek feeling for the
ruler’s political virtue than to the German respect for the
leader’s family and person. The canon lawyers were strong
constitutionalists to a man.
The point of right, at least in theory, was decided almost
impersonally, certainly without any warm mystique about the
blood royal. Moreover, the officials of the Curia themselves
belonged to a hierarchic system and were suspicious of a rival
rex et sacerdos. The ritual annointing of the Emperor’s head was
replaced after the time of Innocent III by the anointing of the
right arm and between the shoulder blades.3 Power was
invested with a quasi-sacramental character, but on condi­
tion that the ruler made a contract into which the Church
entered. Alexander III roundly told Barbarossa that he held
the Empire only as a benefice. Some canonists taught that the
transfer of power to the Princeps could be revoked by the
1 Speech to Congress of Communist Party of Soviet Union. The Times, 5 June 1956.
» M. D. Chenu. ‘Authentica’ et 'Magistralia*. Divus Thomas., pp. 257-85. Piacenza,
*9®5·
3 F. Kern. Kingship and Law in the Middle Ages. Tr. S. B. Chrimes., p. 55. Oxford,
*939·

48

JURISTS

Populus', thus two Papalists, the cardinals Goffredus Tranensis
(d.1245) and Hostiensis (d. 1271) held that the Roman people
of their day could still make laws, for it had not wholly abdicated
its power, which is said to have been translated, that is con­
ceded.1
Finally, and not least important when comparing spiritual
and temporal power, allowances should be made for the dignity
accorded the poor and weak by Christian teaching. The
expectation that churchmen would show sympathy with the
underdog was not always disappointed. As they waxed in
power and pomp, less as ministers of the Gospel than as servants
of the State, it may have become less apparent. Yet apart from
genuine pity, the cynicism of churchmen about the pretensions
of worldly power and their absence of servility towards poten­
tates should be no matter of surprise. The Church had not lost
its popular touch with the Parisians at the time of the Catholic
League, and later still, perhaps with less respectability, with
the lazzaroni under the Risorgimento and the Irish immigrants
during the palmy days of Tammany.

2. Civilians
Canon Law prepared the way for the full reception of the
Roman Law in Europe, and helped clear the ground for the
building of the Modern State. This was largely the work of
civil lawyers. Their ideas also were shaped by canonical con­
ceptions of dominion, rule and jurisdiction. Even in England
where the native Common Law, based on Anglo-Saxon customs
and feudal techniques and developed more by the practice of
the courts than by academic teaching, was vigorous enough to
resist the Code, lawyers could not but consult the regulations
of an organized religion which entered into so many interests.
Bracton referred to the Decretum of Gratian, the Lateran
Constitution of Alexander III, and the Decretals of Gregory IX.1
2
1 W. Ullmann. Medieval Papalism, p. 166.
Godfrey of Trano. Summa in Titulos Decretalium. Venice, ιβοι.
Henry of Susa, Cardinal-Bishop of Ostia. Summa Aurea super Titulis Decretalium.
Cologne, 1612.
2 $. Mochi Onory. Fonti canonistiche dell’ idea moderna dello Stato. Milan, 1951.
F. W. Maitland. Roman Canon Law in the Church oj England. London, 1898.
Bracton and Azo. Publications of the Selden Society, viii, 1895.

THE BOLOGNA DOCTORS

49

Forms and procedure of civil law were framed after the
ecclesiastical model.
The revival of Roman civil law, well under way before
Gratian’s time, started with Irncrius, the jurisperitissimus, who
was teaching at Bologna in 1088, and continued through a
famous line of masters, ‘the four doctors’, Bulgarus, Martinus,
Jacobus and Hugo, summoned by Barbarossa as imperial
counsel to sit in the Diet of Roncaglia (1158). They were fol­
lowed by Joannes, Roger and Placentinus in the next genera­
tion, and by Azo and Hugolinus in the thirteenth century. All
based themselves on the law books of Justinian, for when it is
said that ‘the Bolognese had the Romans for their masters and
none but the Romans’, what they learnt was not the classical
law of the Antonines but its later development.1 They fashioned
a formal discipline according to exact and proper rules,
so that the study of the law, no longer merely a training
for the conduct of litigation, was emancipated from subservience
to grammar and rhetoric.
During the early period of Glossators, the Corpus Juris was
explained by phrases run into the text and meaningless apart
from it. At first these were written between the lines—the
interlinear gloss; afterwards they spread to the margin—the
marginal gloss. This method culminated in Accursius (11821262), the author of the Glossa Ordinaria or Accursiana, whose
authority was such that it became almost axiomatic that a
court would not recognize what the Gloss did not, quidquid non
agnoscit glossa nec agnoscit curia.
A cramped commentary on an old text was no more fitted to
the political development of the thirteenth century than was a
running commentary on the Bible or on a received authority,
such as Dionysius or Peter Lombard, to its theological systema­
tizing. A new scholastic jurisprudence emulated the assimila­
tion and restatement of Aristotclcan philosophy by the Summists who were substituting the more systematically developed
quaestio for the meditative and traditional lectio on a text. The
gloss writers, themselves practising lawyers as well as teachers,
1 H. Kantorowicz. Studies in the Glossators of the Roman Law, p. 3.
H. F. Jolowicz. Roman Foundations of .Modern Law. Oxford, 1957.

5°

CIVILIANS

soon perceived that features in existing institutions could not be
fitted to Roman patterns. During the lifetime of Accursius the
schools of Post-Glossators were rising; the glosses were giving
way to paraphrases, and then to text-books or summae. Azo (d.
1230), the master of Accursius, had composed a Summa on the
Justinian Institutes and Code, and the saw, chi non ha Λζζο non vada
a Palazzo, reflected his reputation. The aim was less to discover
the past meaning of a text than to fashion an instrument of
living law, since rules which united a pagan community might
not commend themselves to Christians. The effort was backed
by the study of the definitions, principles, and divisions of law.
Recital gave place to debate, and it was related of Bartolus (d.
1357) that his habit was to begin with the solution of a problem
under discussion and then to call upon his pupils to adduce
passages in support.
As in philosophy so in law, the French communicated their own
elasticity of mind. They were the Ultramoniani—in the reverse
sense, both in geography and ideology’, to that of die nineteenth
century. Paris and Orleans laboured less than Montpellier and
the Italian schools under the weight of the Corpus. Custom and
equity was held in greater regard, and men were nursed who,
mincing no words, referred to the Gloss as diabolica, fatua and
obscura. They were ridiculed in return by the Italians as
ruminatores. In fact, by seeking to discover the spirit as well as
the letter, the French came to a better appreciation of historical
meaning and present occasion. In Paris, so ran die saying,
scholars seek the arts, in Orleans the authors, in Bologna die
codices.1 Premature specialization was avoided at Orleans,
which as a law university ranked above Paris; all the same
premature specialization was avoided diere, for, until the decay
of literary schools in the thirteenth century'·, law-students were
not admitted until they had taken a degree in arts. The pro­
fessors are said to have been in the habit of lecturing partly in
French and partly in Latin. St Thomas was the contemporary
of James of Revigny (d. 1296), the luminary of the Orleans
1H. Waddell. The Wandering Scholars. 6th ed., p. 134. London, 1932.
Sec the non-authenlic work of St Thomas, de vitiis et virtutibus deque aliis numero
qualentario procedentibus, 6, Opusc. Ixxi, Editio Piana.

POST-GLOSSATORS

5I

school, and, as will appear, the climate for his political theory
was that of Northern Europe.1
The jurists used the Roman Law as the theologians and
philosophers of Paris and Oxford used the Fathers and Aristotle.
When the text of the Code was insufficient they looked to the
glosses and elsewhere to discover the jus commune.2 They
appealed to Church canons, imperial and town laws, feudal
and natural precepts, customs and statutes of the realm. The
ratiojuris was not formed from Roman texts alone. The teaching­
method included debates, or quaestiones disputatae, as well as
lectures. The analysis of principles was combined with a sense
of fact; the argument, as in contemporary moral theology, was
both speculative and practical. As in moral theology, too,
teachers and judges more and more appealed to accepted
authorities and to the communis opinio, sometimes to safeguard
themselves from liability; thus they set up a chain-reaction
which sometimes subjected equity to the ruling of the majority
and substituted a mechanical return for a pondered pronounce­
ment on the truth of the matter.
Without overmuch regard for archeological correctness, the
Roman Law was flexibly adapted to current needs, like the
grammar of the Church. The medieval lawyers did to it what
Coke was later to do with their own precedents. To take an
example : a vassal holding of a lord could not be credited with
full ownership, ‘but by describing his remedy as an actio utilis of
the sort granted to the Roman superficiarius, a step was taken
towards ascribing to him a dominum utile as opposed to the
dominum directum of a lord’.3 The ruler of a Nation-State was
credited with the powers of Caesar in the maxim, princeps est
imperator in regno suo. It was felt that lawyers were not merely
technicians spelling out the meaning of words, too much for
1 P. Fournier. Histoire de la science de droit en France iii. Les universités françaises et
l’enseignement du droit en France au moyen âge. Paris, 1892.
H. Rashdall. The Universities of Europe in the Middle Ages, ii, pp. 139-51.
* W. Ullmann. ‘The Legal and Political Ideas of the Post-Glossators' in Lucas de
Penna and the Medieval Idea of Law, p. 45. Introduction by H. D. Hazel line.
London, 1946.
•J· W. Jones. Historical Introduction to the Theory of Law, p. 14.
E. Maynial. ‘Notes sur la formation de la théorie du domaine divisé.’ Mélanges
FiUing, ii, p. 419. Montpellier, 1908.
For application to the morality of ownership see 2a-2ae, Ixvi, 1-2.

52

CIVILIANS

law and too little for justice; law remained just only by
responding to the actual conditions of an ever-changing social
life.1
Two related principles of contemporary juridico-political
doctrine may here be mentioned for they will appear later.
First, that the administration of written laws should be tem­
pered by the spirit of equity; secondly, that some sort of
popular consent entered into the nomination of the supreme
legislator.
The influence of Marlinus who led the ‘Equity Wing’ against
the strict legalism of Bulgarus and most of the Bologna masters
may be traced through Placentinus (d. 1196) to the French
law schools, in the country where Celtic Gauls and Norman
Vikings had prepared the soil of freedom. It was recognized
that the texts of the Law, or for that matter of any code or
gloss, could not be stretched to fit every situation which arose.
The fact was enlarged on by the Aristotelean moral philoso­
phers when they taught that social justice called for a certain
flexibility, since the common good which was its purpose
consisted of a multitude of human persons, not a bloc. Law
itself was a matter of social justice; it was made for the benefit
of a commonwealth of human beings each apart and all
together. Hence a legalistic justice which merely attended to
the strict working of regulations and applied them without sense
of situation fell short of the full idea of law and justice. For
justice, like truth or beauty and the Eternal Law itself, is an
analogical value which cannot be reduced to the set details of
unvarying precepts: in every sense of the term, it means fair
pUy.
It would not have occurred even to those jurists who were
sticklers for the letter of the law that Positive Laws, that is,
laws whose force depended on their enactment by human
authority, could form a closed system imposed and expanded
without reference to religion and natural rights. Nevertheless,
with the growth of the Roman Law at the expense of customary
law and of deference to its superior elegance and efficiency, a
world was created, of rulers, officials and subjects, in which the
legal machine began to work on its own almost to the exclusion
1 A. Denning. The Road to Justice. London, 1955.

GOVERNMENT ABOVE THE LAW

53

of other interests. This may be expected to happen when any
specialist technique is elaborated and exploited apart from a
controlling wisdom: analogies can be found with mathematics
in the seventeenth century, the critique of knowledge in the
eighteenth, physics in the nineteenth, and linguistic logic for a
period in the twentieth.
One political result of this legal development was to elevate
the ruler about the checks of popular custom and constitutional
law. For John of Salisbury in the twelfth century the test of
difference between a prince and a tyrant was whether he kept
the bounds of his office; to Bracton in the following century
the king was under the law.1 But as the Romanizcrs gained
ground so also did the notion of the princeps solutus a lege, the
absolute sovereign who is the master, not the servant, of law,
together with the corollary that government might act by
decree without consulting the community at large. The con­
clusion was arrived at less by an appeal to examples from
antiquity than by the interior dynamism of the Roman Law,
and it was favoured by the decline of religion as an organized
social force.
It is true that the early Civilians spoke of law rising from the
people, from the universitas, id est populus. Placentinus, who left
Bologna in disapproval of its stringent spirit and founded the
school of Montpellier, referred to the Emperor as the people’s
vicar.2 But to expect political Liberalism in the Middle Ages
would be premature; the theory of popular representation was
qualified by the famous lex regia—what pleases the prince has the
force of law, since by regal law issued concerning his sway, the
people have conferred on him and lodged in him all their rule
and power.3 Henceforth he was the legislative sovereign. The
maxim, frequently truncated to the first clause, that the prince’s
pleasure has the force of law—and, as such, rejected by St
1F. Schulz. ‘Bracton on Kingship.*
* English Historical Review, lx, p. 237. London,
«945’ A. J. Carlyle. ‘The Theory of Political Sovereignty in the Medieval Civilians to
the time of Accursius.’
Melanges Eitting, i, pp. 183-93. Montpellier, 1907.
• Institutes 1, 2, 6. Digest II, 1, 4.

54

CIVILIANS

Thomas at the very beginning of his treatise—was at first
restricted to the Holy Roman Emperor, the inheritor of the
prerogatives of the classical Princeps, but was later extended to
the rulers of kingdoms and city-states.1
Furthermore, most Civilians, including Placentinus, held that
this act of alienation could not be taken back. On the other
hand Bulgarus and Azo were among the important minority
which stressed the inherent right to act by custom, and can be
cited to testify that the transfer was not irrevocable—the names
show that the equity and legalistic wings among the jurists did
not correspond respectively to the theories of representation as
delegation or of representation as personification, nor to con­
stitutionalist and absolutist policies.2 Many of the Canonists
taught that the people could withdraw their mandate from the
prince; some that the people’s right to legislate still remained.3
These views may have been determined by Guelf policies, but
they were also suggested by moral ideals of moderation, agree­
ment, and shared responsibility, ideals which were thrown into
relief by the excesses of tyrants like Ezzelino.
Notwithstanding the force of custom, the trend was towards
centering legislative power in a single princely organ of
sovereignty. It began to be less spread out over the body politic.
Its possession and exercise began to be set up as a fact which
sought no justification—apart from success—and which was not
derived from religious or moral considerations or even from
popular consent. The practice was linked with the theory that
politics was an autonomous discipline, yet it was from the
Roman Law, not from Aristotle, that the lineaments of the
absolute monarch were drawn. It was reproduced as Europe
split into independent states and the ruler of each claimed to
be sole and supreme within his own domain?
1 ia-2ae, xc, i, ad 3.
C. N. S. Woolf. Bartolus of Sassoferrato, p. 35.
’ F. Kern. Kingship and Law in the Middle Ages, p. 117.
A. J. Carlyle. A History of Medieval Political Theory in the West, v, p. 48, vi, p. 13.
• W. Ullmann. Lucas de Penna and the Medieval Idea of Law., p. 48.

* W. Ullmann. ‘The Development of the Medieval Idea of Sovereignty.’ English
Historical Review, Ixiv, pp. 1-33. London, 1949·

Ill
LANDED MEN AND WANDERERS
thought has been scouted for being over­
academic. There was not enough experimentation, it
has been said, nor attempt to control the processes
which exploit human environment; the effort on peering into
hollow objects of speculation would have been more profitably
spent on the applied sciences. Let that pass, together with
murmurs about scholastic cobwebs and dancing angels on a
needlepoint, and, granting that technological progress lagged
behind logic, turn the inquiry' and ask to what extent the
theorists were subject to the pressures set up by their living
conditions.
How you think is affected by how you feel, and how you feel
by the culture and material standards of your time. The
presuppositions of a social theologian arc formed by his history
as well as by the relatively timeless factors of his religious creed
and philosophy: to understand him we must receive an impres­
sion of his surroundings as well as make an abstraction of his
ideas. St Thomas was no exception. Detached he may appear—
certainly the tang of his times is better caught from some of his
colleagues, for instance from Humbert of Romans or Albertus
Magnus or Ptolemy of Lucca. zXll the same he is imperfectly
appreciated from dwelling only on the debates of the schools.
Theory, like art, is the result of collaboration. At the risk of
being perfunctory let us adopt the ascending dialectic from
material to formal which he himself would have approved,
and glance at some of the customs and moods of the world in
which he moved.

M

edieval

i. The Social Scene
Feudalism, variously evolved according to region and period
but basically an order of land-tenure, was taking on a more

THE SOCIAL SCENE
ϋθ
political and urban complexion. The effect was of greater
versatility for the community and greater instability for the
individual. It made for easier means of escape from die bondage
of food-production, for a peasant’s son could go to the town and
rise by craft or trade; he could turn soldier. Merchandise was
more powerful than the sword. Even in the eastern Latin
principalities, achievements of the piety and land-hunger of
die Franks and of their colonizing capacity and administrative
energy’, policy was sometimes decided by the interests and
rivalries more of commercial agents than of the nobles and
knights of Outremer. The power of Pisa was in decay, but
Venice and Genoa were gathering the fruits of a medieval
capitalism rooted in the commercial revival of the twelfth
century; their factories were to outlast the crusaders’ castles.1
Planned economies were still the rule, for Free Trade came
in after the French Revolution and disappeared during the
First World War. All the same, personal initiative was breaking
the forms of privilege and protection. Credit was turning
enterprise into gold and local dealing opening out into freer
exchanges. Traders and travellers went farther afield—Marco
Polo set off from Venice in 1268—and producers, breaking
away from a tied system and neighbourhood-markets, bargained
for greater independence. To take one geographical condition
of prosperity: it was less important to be a strong place under
the protection of a lord or a pilgrimage-centre in the shadow
of a church than to be a market at a harbour, river-crossing
or mountain pass on a route which might stretch from the
Atlantic coast to the Baltic, the Black Sea or the Levant.
Opportunities for trade rather than advantages for defence
were the factors in the urban development of such places as
Southampton where there was a double tide or Innsbruck on
the road to the Brenner.2
Correspondingly the sentiments of social psychology were

1H. Pirenne. Medieval Cities; their Origins and the Revival of Trade. Princeton, 1925.
Economic and Social History of Medieval Europe. Tr. J. E. Clegg. London, 1936.
W. Heyd. Histoire du commerce du Levant au moyen âge. Tr. F. Reynard. Paris, 1923.
S. Runciman. The Crusades. 3 vols. Cambridge, 1951-4.
Cambridge Economic History of Europe, ii, 1952.

*J. W. F. Hill. Medieval Lincoln. Cambridge, 1948. An excellent history of the
growth of a city.

THE NEW ETIQUETTE

57

changing. Family and tribal loyalties were being lifted into a
wider political obedience and service. Dominion belonged to
the ruler less as the head of the kindred, caput progeniei, than as
the sovereign of the State. Power, once inherited from father to
son, as under the Capets, was now being decided by the condi­
tions of contract, and the change was encouraged by the
Church. Knight-service no longer governed the holding of
property. The Military Orders, which had introduced a formal
discipline into the institutions of chivalry, were developing
almost into chartered companies. When power and fashion
were focussed on the court so much the more store was set on
manners and breeding. Stylishness was cultivated, luxury dis­
played, and conduct turned on punctilio. The feelings of some
marcher lord for the courtier were not unlike those of Welling­
ton’s or Wavell’s fighting-man for the Belem Rangers or the
Gadcrene Swine.
The moralists for their part now laid more stress on justice
than on honour and loyalty. The average man of the Summa
Theologica was a citizen, not a lord or vassal or serf, and the
social virtues there recommended were those of partnership in
a polity, not of gentility and courtliness. Panache and fame, a
handsome manner and fastidious taste did not pass unadmired
so long as they were contained in the reasonable virtues of
fortitude and temperance.1 There was a shift of scene, and
rights and duties were now set against a civilian background of
temporal tranquillity; in some respects their assignment fore­
shadowed the social ideals of Locke. Whereas in the early
chansons de geste noble behaviour belonged to men of gentle
birth, by 1250 it was extended to the middle-class; a vilain was
not necessarily base, a noble could be guilty of vilenie.2 Yet if
St Thomas reflected the contractual liberalism of the age his
influence on its later evolution was fainter—and when we
speak of liberalism in his regard we mean, not the dominating
political force of the nineteenth century', but the virtue of
social liberality pointing to the esprit large and away from the
idée fixe.2
1 aa-aae, cxxix, cxxxiv, cxliv, adv, clxi, clxii, clxix.
•J. Crosland. Medieval French Literature. Oxford, 1956.
8 2a-aae, cxvii. A. R. Vidler. Euays in Liberality. London, 1957.

58

THE SOCIAL SCENE

The Germans were pushing into the Eastern Marches and
colonizing the Baltic lands. Less massively the English were
occupying Wales and Ireland and extending continental insti­
tutions to the West. More land was being brought under the
plough. Despite mechanical advances in the early Middle Ages,
notably with regard to animal-harness and the use of water­
power for mills, agricultural methods scarcely improved from
the eleventh to the fourteenth centuries, and a smiling country­
side was not the result of the progressive expulsion of the Moors
by the Christians from Spain.1 Until the Black Death the
increase of population pressed on the means of subsistence.
Under the strain of new conditions a patriarchal economy was
proving unequal, and its gradual break-up was at once the
cause and effect of changes in social thinking. The scene was
more urban, less manorial; obligations were more standardised,
less individual; dues were beginning to be collected more as
taxation than as rent, and knightly service might be commuted
for a money payment.1 The landed estates, less self-sufficient,
were being subordinated to the centre, a rural economy to the
gold-standard.
Other symptoms marked the transition. Lay lawyers dis­
placed clerics in the administration, and royal officials the feudal
barons. The nobility of France were eventually tamed to the
condition of courtiers. Artistic patronage moved from the
monastery to the prince’s palace, and there the great figures,
the seneschal, the constable, the butler, the chamberlain, were
being promoted from servants of the household into ministers
of the Crown and State. The changes were paralleled in the
art of war. Early in the century the great rectangular barracks
of Frederick II, such as still may be seen at Legnano, replaced
rambling residential castles, and by its close Edward I’s adop­
tion of the long-bow after the Welsh Wars proved that the
infantry was the decisive arm, not the cavalry of knight and
men-at-arms. It was cheaper too, what with the rising cost of
armour and horses. Feudal levies proved no match for pro­
fessional soldiers, and nobles were discomfited by burghers and
1 Sec A. L. Poole. Obligations of Society in the Twelfth and Thirteenth Centuries. Oxford,
1946.
R. Latouche. Les origines de l'économie occidentale. Paris, 1957.

OFFICIALISM

59

seamen. Chivalry was becoming an upper-class mannerism.
Merchantmen assembled in a crisis served instead of a
permanent navy; they were used to transport armies overseas,
and attack on the enemy’s trade and fleet was secondary to the
effort on land. Sea-power, decisive in the Carthaginian Wars,
was scarcely appreciated outside England, Aragon, Genoa, and
Venice; it was of limited effect until the rise of the Ottoman
Turks and the oceanic discoveries, except for the maintenance
of the Crusades which since the death of Barbarossa (1190)
avoided land routes.
Officialism increased in academic life. Salaried occupants of
university chairs and holders of lectureships succeeded itinerant
scholars, teachers in monastic and cathedral schools, and
masters who had set up on their own. Their following was
becoming less personal, for education was becoming a means to
finding a job, and a diploma counted for more than having
been a disciple of some renowned scholar. The University of
Naples, founded in 1224, was not a free association of masters
or students, as originally at Paris or Bologna, but a training­
school for civil servants.
The use of ancestral tokens and distinguishing emblems in a
mêlée was stylized by the exact science of heraldry with rules
as official as those now governing patents and trademarks. Its
formal occasion was the tournament, a fashionable spectacle,
like Wimbledon or Ascot, not the rough-and-ready occasion of
ruder times. Altogether the community was moving from the
condition of a domestic group loosely centred on the king’s
household to that of a civil order controlled by the royal court.
The transition was from paternal precepts and scientia oeconomica
to formal law and scientia politica.
The Christian West possessed within itself the resources to
produce a genial polity from its high culture, and the twelfth
century promised what the thirteenth century brought to such
brief maturity. But a certain legal formalism set in and spread
to both Church and State. Officialism in social life was increased
by the reproduction of Roman models and encouraged by the
study of the Roman Law, while at the apex of new power stood
the persona publicai the public figure of the sole ruler who
personified the power of the community.

6o

THE SOCIAL SCENE

Soon there was a suggestion that his official actions might be
exempt from the rules of private morality, for the idea of the
Common Good began to be coloured by the idea of the Public
Good and the interests of the State. The terms have different
implications, since the good of all is the good of each whereas
the public life of the State can appear as a thing apart. Persona
recovered its original histrionic sense and came to mean the
outward face, the ‘personage’, overlying the intimate substance
of a human being. Λ legal tone dulled its philosophical echoes
ringing from the debates of the early Councils on the mysteries
of the Trinity and Incarnation.1
Simultaneously a new method of making law was being
introduced. Hitherto it had been a declaration of the customs of
the people. Now more and more if became an administrative
act expressing a will which exercised irresistible force and was
answerable to nobody. It was the decree of a sovereign who
differed from a first magistrate as much as a full owner did
from an usufructuary or a trustee.
Previously a masterful king might have treated his realm as
his own property, perhaps exploiting it without much regard to
abstract justice or the well-being of the whole and issuing his
decrees according to his own advantage, perhaps seeking to
diminish sectional interests and unify the country. The assertion
of imperial and regal power against feudal rights went back
many years and was the theme of King John’s difficulties with
the English barons. Nevertheless any approach to tyrannical
practice or absolutist theory encountered the resistance of
immemorial convictions formulated by the feudal jurists. They
acted in no doctrinaire spirit but merely sought practical ways
of maintaining existing rights. The magnates considered them­
selves to be the repositories of these rights—which shows they
were not speaking as liberal democrats—and invoked custom
in their fight against the King. Law was upheld as a standard
to rally the forces of tradition.
The customs of the people, their common heritage, were
declared under the proper circumstances after consulting an­
cient usage; law was a restatement, not an innovation or a
creation of the prince’s will. Such was the sentiment of the
1 See ia, xxvii, I. 3a, ii. 2. Below pp. 236-49.

CUSTOM AND STATUTE

6l

Canonists and, at first, of the Civilians. It was uttered in many
places, in the Roman de la Rose, in the aristocratic reaction to the
Angevin kings, in the Liber Feudorum or Consuetudines Feudorum.
This, published by the Consuls of Milan and annexed to
the Corpus Juris Civilis by Hugolinus, revived the Emperor
Constantine’s declaration that ancient usage and custom could
not be disregarded unless they ran counter to lex.1
The Lombard Law, more resistant to the Code than other
tribal law's, was still ranked equal with the Roman Law in
Sicily, if not indeed as its superior, until the early thirteenth
century. By the fourteenth century, however, Lucas de Penna
put custom below statutory enactment, though the prevailing
view even then was that written and unwritten law were of
equal weight.2 Legislation required some co-operation between
the prince and the people; in declaring a law he spoke for the
whole community after taking counsel with the elders. The
popular consent implied was the acknowledgment that a
provision corresponded with custom, not an act of subsequent
ratification; it was rather like the procedure by inquest which
survives in the English trial by jury.
When Baldwin was crowned first Latin Emperor in Santa
Sophia in 1204 he found himself little more than the chairman
of a house of peers.3 A prince was not free to dictate policy
without seeking the accord of the landed magnates. As for his
immunity from law, thirteenth-century sentiment would not
have allowed that he was beyond its reach or that there was no
effective authority who could control him, though its judicial
organ might not be designated. The acceptance of duties
qualified the enjoyment of power, and mutual obligations,
sealed by oath and carrying with them limitations of rights
were held to exist between a ruler and his people. Rulers were
’J. E. A. Joliflc. Angevin Kingship. London, 1955.
G. H. Sabine. A History of Political Theory. xi. ‘The Folk and its Law.’ London,
>937·
A. J. Carlyle. A History of Medieval Political Theory in the IFiwL 11, 1.111, I.
C. H. McIlwain. The Growth of Political Thought in the West, p. 171. New York,
1932.
* M. Schipa. Italy and Sicily under *Frederic II. Cambridge Medieval History, vi,
p. 148. 1929.
W. Ullmann. Lucas de Penna and the Medieval Idea of Law, iv.
* S. Runciman. A History of the Crusades, iii, p. 125. Cambridge, 1954.

62

THE SOCIAL SCENE

answerable in conscience for their actions and could not shelter
behind the anonymity and impersonality of office: this was
perhaps the most salutary political principle bequeathed by
Christian feudalism to later generations.
Caballus, the pack-horse, became the war-horse, the beast of
burden the chevalier’s mount. The fortune-hunters who
followed William the Conqueror were not unlike the men who
opened up the Rand. Early chivalry cast no charm, it was an
affair of service based on land-tenure. Later taking colour
from the Moors and Saracens, it flowered into the decoration
of a culture and served no essential function in the social
organization. Its ideals, reflected only in brief parentheses of
the Summa Theologica, were not unlike those of the horsey
Victorian soldicrwho, when asked what was the use of cavalry
in modem warfare, replied, Well, I suppose to give tone to
what otherwise would be a mere vulgar brawl. The knighterrant was an absentee landlord, neither at home administering
his domain nor doing his service. The chevalier was the gallant,
detached from the humdrum round, the devotee of a courtly
habit; he might be an adventurer, perhaps a fop, grumbled at
by the territorial barons and sometimes a fallen favourite, the
victim of their rough resentment.
He was matched by the new type of cleric, unbeneficed and
wandering at large, looked at askance by incumbents and
attacked by the Masters of Paris. Where did he fit into the social
scheme ? The question was not easy to answer, for the question
of status was of primary importance to critics whose minds had
been formed by the Roman Law; it was not as if they were
Aristotelean philosophers to whom situs was one of the minor
categories. The friars seemed no part of the structure of the
Church; they held no property keyed to the discharge of an
official function, they made no vow of stability in a monastery.
All the same their opponents had to admit ruefully that they
were official tramps blessed with pontifical approval, quite
unlike the vagantes condemned by the canons of the Church
Councils. Theirs was more the repute of the fifth-century
Sophists, those travelling professional educators. Their de­
meanour was not picaresque. Among them were men of weight
in the schools and in the counsels of Church and nation. Some

RESPECT FOR POVERTY

63

were papal legates and cardinals, or occupants of the most
venerable sees in Christendom; before the century was out a
Dominican, Innocent V, and a Franciscan, Nicholas IV, were
elected to the Chair of Peter itself. Under St Bonaventure’s
government the Franciscans assumed responsibilities seemingly
far removed from a carefree life of poverty; John Peckham is
better remembered as a successful estate-manager for his
archbishopric than as a poet or theologian.1
The social movement which produced the friars also revealed
other symptoms. Detachment about personal possessions
changed to anxieties about obligations rooted in this world
and about fair-dealing which hinged ponderously on material
things, anxieties which the increasing subtilization of law was
ineffective to satisfy. There were doubts concerning vested
interests in spiritualities and temporalities, concerning the
whole business of providing for yourself and your family in the
ordinary way, and even concerning the precepts of institutional
religion itself. A respect for the poor because they were poor
was an authentic part of the Christian tradition. Not until after
the Reformation was poverty considered a vice and prosperity
a badge of godliness.2
A special contempt for what may be called the virtues of the
good business-man showed itself in the thirteenth century.
Although the Church for its part had settled the principle of its
right to own property, ecclesiastical preoccupation with the
affairs of this world was being increasingly challenged, and on
devotional grounds; the rebels, thrown up by a religious culture,
seem to have taken an extravagantly spiritual view of religion.3
Landed property inevitably came to bulk larger than sacra­
mental dignity in the concept of estate, and in the discharge of
its functions. As the Church’s possessions grew, so tender
consciences mused how difficult it was to serve God and Mam­
mon. Of course laicizers were ready to propose the ideal of a
purely spiritual Church, without property or temporal power;
they were not disinterested parties, but from the days of Arnold
of Brescia (d. 1155) could sometimes count on the support of
1 D. L. Douie. John Petham. Oxford, 1952.
’ W. Shewing. Rith and Poor in Christian Tradition. London, 1947.
* Dcnzingcr, 494-6, 596, 619.

64

THE SOCIAL SCENE

religious fanaticism, and in the early fourteenth century were to
strike an uneasy alliance with the zealots for poverty.
Eccentrics and enthusiasts repudiated other responsibilities
besides wealth. Marriage itself, so closely related to property,
was discredited when Courtly Love turned sentimental and
temptation to sin was lauded as ennobling romance. The
possessive emphasis in the secondary precepts of the Decalogue
did not pass unnoticed: thou shalt not covet thy neighbour’s
wife—nor his ass. Theologians themselves recognized that the
Old Law was limited, material, and negative, and, unlike the
post-Reformation manualists, preferred to construct their moral
theology on the higher plan of the Christian virtues.1
Many forces, economic and literary, worldly and religious,
mad and sober, delicate and coarse, cool and feverish, from the
courts, the religious houses and the underworld, were under­
mining the old foundations. The settlements of weavers were
centres of unrest, and the roads were thronged with merchants
from foreign parts, vagrant scholars, clerici ribaldi de familia
Goliae, gospellers, Manichees, singers of romantic love, men
going on crusade, children led by pied pipers, pedlars of
relics, pilgrims doing penance and much else on the way,
itinerant officers of Church and State. All after their fashion
combined to shake the stability of social convictions which
grew from the roots of feudalism.
Nor could the unrest be wholly set down to aberrations of
conduct or a wild spirit of protest and fun, which far from
spreading to the clerics seems to have started with them. The
discipline of a dozen Church Councils, from Germany across
France to Spain, was applied to those who diced, wined, sang,
took part in theatricals, did comic turns, and flaunted them­
selves in green and yellow garments.2 The cause lay deeper
than a passion for sport and spiced meats and wine. Their
culture was charged with too many memories of spells from
outside the classical world for men to accommodate themselves
dutifully to an order formed from Greek philosophy and Roman
1 ia-2ac. c, 10, 11. cvii, 1. 2a-2ac. Prologue.
’J. D. Mansi. Sacrarum Conciliorum Amplissima Collatio, xxiii, 33, 215, 237, 512, 882,
935» 992» 997» >055-7» >οθθ· x»v, 140-1.

OPEN FRONTIERS

θ5

law. The anonymous thirteenth-century pastoral from the
Carmina Burana was a parable of their condition :
Exiit diluculo
Rustica puella
Cum grege, cum baculo,
Cum lana novella.
Conspexit in caespite
Scolarem sedere:
'Quid tu facis, domine?
Veni mecum ludere?

They might receive the pattern, and be obedient to the code
of the Princeps and to the ecclesiastical order, but there was
much else on the fringe. Their Scriptures witnessed to the
strange and prophetic strains of the Jewish dispensation, their
worship echoed the tones of Syrian music, their speculation
could not forget the adventures of John Scot Eriugena. The
vagabonds trod the routes of Celtic monks. The sagas were not
spent; the Northmen were carrying their mediterranean con­
quests as far as Antioch, and it was not until the Varangian
Guard broke that Constantinople fell to the Latins. The eastern
frontier was open to Germans, Slavs, Hungarians, Bulgarians,
Tartars. From the south were imported dainties and refine­
ments from the Arabs. At the University of Naples the young
Thomas Aquinas was instructed in literature and logic by
Marlin of Denmark, in natural philosophy by Peter the Irish­
man; both belonged to Michael Scot’s Greco-Arabian circle
round Frederick II, at whose court the first sonnet was com­
posed. In the monastic guest-house might be found a Copt or an
Armenian, a Venetian who had lived in Muscovy or Persia, a
Flemish cloth-merchant who had dabbled in the secrets of the
Bulgars. St Louis presented Henry HI of England with an
elephant in 1254. Experience was too rich, and the myths too
varied to be epitomized in the contemporary summae of the
scholastic theologians and lawyers: their scent lingers in the pot­
pourri of the Decameron.1
1 F. Lot. La Fin du monde antique et let début du moyen âge. Paris, 1927.
R. Hower. Ireland and Medieval Europe. Proceedings of the British Academy.
London, 1927.
W. O. Ker. The Dark Ages. Edinburgh, »956.
J. J. Jusserand. English Wayfaring Life. London, 1921.

66

THE SOCIAL SCENE

Baroque hagiographers, like the heralds of the period who
dwelt uncritically on legends of antique magnificence and
honours, sought to flatter noble patrons who had a saint in the
family tree. The Aquino family was granted a pedigree and
panoply equal to any in Europe, whereas in fact St Thomas’s
immediate relatives were of more standing as officers of state
than as landed lords. His father was Justiciar in the marches
between the Kingdom of Sicily and the Patrimony of Peter,
and his uncle and namesake, Thomas of Aquino, Count of
Acerra, was posted as imperial regent to the Kingdom of
Jerusalem (i226).x The ambitions of his parents that he
should end up as Abbot of Monte Cassino and Archbishop of
Naples were disappointed. He left behind the feudalism of the
Castle of Rocca Secca where he was born, the patriarchalism
of the Abbey of Monte Cassino where he was first educated,
and the ecclesiastical career for which the University of Naples
prepared him, in order to throw in his lot with the Dominicans
(1243-4): characters who would have become monks in the
grand Benedictine centuries were now joining the friars. The
Dominicans had to rescue him from the energetic displeasure of
his family who kidnapped him and held him in durance for
months. He was sent across the Alps, probably to Cologne to
study under St Albert, finally to teach in Paris (1252) at the
Studium of St. Jacques on the left-bank of the Seine: thence the
Dominicans came to be known as the Jacobins.

2. The Order of Preachers
The Dominicans, or Preachers, had been founded forty-six
years before by St Dominic, a far-seeing and self-effacing
Castilian who had exchanged the quiet life of a regular canon
at Osma for the hurly-burly of preaching the Christian evi­
dences to the Albigenses in Languedoc.2 The first episcopal
patron of his community was the cx-troubadour and Cistercian,
1 F. Scandonc. ‘Iλ vita, la famiglia c la patria di S. Tommaso.’ S. Tommaso
d'Aquino, O.P. Miscellanea storicoarlistica, i, 3. Rome, 1924.
■H.M. Vicaire. Saint Dominique de Caleruega d'après les documents du Xllle siècle·
Paris, 1955.
H. C. Schccbcn. Da hl. Dominikus. Freiburg, 1927.
B. Jarrett. Life of St Dominic. London, 1924.

CANONICA RELIGIO

67

Fulk of Toulouse; his followers came to England (1221) in the
train of Peter des Roches, Bishop of Winchester, no friend of
the baronage, and were befriended by Stephen Langton. A
legal corporation of clerics confirmed by Honorius III (1216),
they were coming to the height of their influence in the Western
world; devoted to study by their profession—contemplata aliis
tradere later became their motto—they still relied on their own
wits rather than on the dignities they were acquiring, and were
not yet side-tracked into administration.
Caught up in the mendicant and penitential movement, they
were spared the tragic dissensions which later afflicted the
Franciscans, partly because from the beginning they were selfgoverning according to a democratic constitution—in his own
life St Dominic equably suffered himself to be overruled by a
majority-vote in favour of a businesslike control of temporali­
ties—partly because they were never profoundly committed to
the ideal of corporate poverty, partly because of their bias
towards a rational and classical order. Committed by their
origins to canonical and liturgical observances, theirs was
always a canonica religio. Their founder’s shrine was at Bologna—
stately and scholastic, grave and courteous—and there and at
Paris alternately their earliest General Chapters were held, not
at Rome. All superiors were elected and, except at first in the
case of their Master General, held office for a temporary period,
after which they returned to the ranks. They believed in
representative institutions, and their practice in conjunction
with other influences promoted the rise of parliamentary
government.*
1
Unlike the monks they made no profession of local stability.
They were affiliated to national provinces—of which England,
founded in 1221, is now the ninth in order of seniority—but
their work took them across territorial frontiers, and much of
their life was spent tramping from one centre of learning to
another. Benedict loved the mountains, ran the saying, Bernard
‘G. R. Galbraith. The Constitution of the Dominican Order, 1218-1360. Manchester,
19a5·
E. Barker. The Dominican Order and Convocation. Oxford, J 913.
M. Gaynes Post. 'Plena Potestas and Consent in Medieval Assemblies. A Study in
Romano-Canonical Procedure and the Rise of Representation, 1150-1325.’
Tradition, i, p. 369. New York, 1943.

68

THE ORDER OF PREACHERS

the valleys, Francis the towns, Dominic the universities—and
these, more secular than the monastic and cathedral schools
they superseded, were not retreats for academic meditation and
research but battlegrounds for ideas which shaped events. The
Dominicans adopted monastic ordinances, but theirs was no
monkish world. Their houses were built in the towns not in the
countryside, and nearer to the market than to the castle or
cathedral; their churches were not massive and dim, but
open spaces of light supported on slender piers. On arriving in
England, they tarried briefly in Canterbury, then moved on
to Oxford. Every priory was also a school which was open
to all. By 1248 they had established five Studia Generalia for
higher studies, Paris, Bologna, Oxford, Cologne, and Mont­
pellier. The songs they heard were not merely the Gregorian
chants of their own choirs, but also the strains of romantic
poetry and courtly epic which succeeded the chansons de geste.
All helped to form the culture they shared.1
Temps s'en va
Et rien n'aifait.
Temps s'en lient
Et ne fais rien.

The words rose up from the street to Guerric of Auxerre as
he sat at his window, and so moved his heart that he entered
the Dominicans, to become their first prior of Metz.2 And on
the road they caught pieces in lighter vein, love-songs, spring­
songs, begging-songs, from restless clerks, poor scholars, and
jongleurs. In brief, the contemplatives, the Hellenic leisuredclass, were no longer enclosed or at home but abroad and at
large.
In Spain the friars appointed special convents for oriental
studies where they discoursed with rabbis and mullahs; at one
Dominican house the chair of Hebrew was held by a Jew.
Raymon Martinez was reputed to have been the first Christian
1 C. Dawson. Religion and the Rise of Western Culture, viii.
G. Paré. Le Roman de la Rote et la Scholastique courtoise. Paris-Ottawa, 194t.
C. S. Lewis. The Allegory of Love: A Study in Medieval Tradition. London, 1936.
W. P. Ker. Epic and Romance. London, 1896.
8 H. Waddell. The Wandering Scholars, p. 145.

NON-CHRISTIAN CONTACTS

69

with a greater command of Hebrew than St Jerome’s. Another
Dominican, Pablo Cristiani, himself a Jew, engaged in public
and temperate disputation with the great rabbi Nachman
before King Jaime I and Raymund of Pennafort at Barcelona.1
In general the Franciscans seem to have been more cordial
than the Dominicans in their relations with the Jews.
The friars debated with Greeks in the Levant and fraternized
with Armenians. Hakluyt wrote of ‘the sending of certaine
Friers Praedicants and Minorites to the Tartars’. Speak of
Prester John or the Great Cham of Tartary, and they were
ready to explore his dominions and enter his court. Andrew of
Longjumeau and William of Rubruck were St Louis’ ambas­
sadors to the Mongols; others had preceded Marco Polo to
China. The posts of the Dominican Fraires Peregrinanles pro
Christo later stretched from the Crimea to Persia.1
2 Since the
Second Crusade a new respect for the Moslems had been
discovered; the Dominican explorer, Ricoldo de Monte Croce
(d. 1320) spoke warmly of the virtue and piety of Arab camel­
drivers and held them up as examples to Christians.3
Nearer home, in southern France and northern Italy they
rubbed shoulders with scepticism, pessimism, cynicism, anarch­
ism, romanticism, and, after St Albert and St Thomas, with
naturalism too. They showed little enthusiasm for the canoniza­
tion by Innocent IV of Peter of Verona a year after he had
been martyred for his zeal by heretics on the road from Como to
Milan (1252) They first settled at Oxford in the Jewry, where
they defended their neighbours against persecution. One of
them, Lawrence of Reading, a well-known preacher, joined the
1 O. S. Rankin. Jewish Religious Polemic. Edinburgh, 1956.
• R. Loemertz. La SociW des Frères Peregrinants. Etude sur l’orient Dominicain.
Rome, 1937.
W. A. Hinnebusch. The Early English Friars Preachers. Rome, 1951.
B. Jarrett. The English Dominicans, p. 99. London, 1921.
Richard Hakluyt. The Voyages, Trafiques and Discoveries of Foreign Voyagers, i.
London, 1928.
William of Rubruck, /tinerarium (tr. Rockhall). Hakluyt Society, ii, 4. London,
J 900.
C. Daw-son ed. The Mongol Mission: Narratives and Letters of the Franciscan Mis­
sionaries in Mongolia and China in the thirteenth and fourteenth centuries. London,
>955·
3 G. Grupp. Kulturgeschichte des Mitlelalters, iv, pp. 251-2. Paderborn, 1924.

70

THE ORDER OF PREACHERS

Jewish religion under the name of Haggai. They sailed from
Barcelona in 1250 to found an Arabic University at Tunis,
then the liveliest intellectual centre in Africa: T would freely
pass the rest of my life in prison chains,’ said St Louis, ‘if as a
result the King of Tunis and his people were converted to the
Christian religion.’1 Jean de Meung was their neighbour in
Paris; though he had sided with the secular masters against the
religious orders he asked to be buried among the Dominicans.
Even the satire of Chaucer—who translated the Roman de la
Rose as well as the Golden Legend of the Dominican James of
Voragine—hints at the sympathy between the friars and the
men of science and letters, and their shared raciness of
expression.
Raynicr Sacconi, formerly a leading Cathar in Lombardy
and later head of the Inquisition at Milan, was with St Thomas
at the Papal Court at Viterbo (1262). Once a hcrcsiarch,’ he
described himself in his exposition of the teachings of the
Cathars and Poor Men of Lyons, the Summa de Caiharis et
Pauperibus de Lugduno, ‘now by God’s grace a priest in the
Order of Preachers though unworthy.’ One item of doctrine
noted is that secular authority does grave wrong by using force
against criminals and heretics. The Cathar Liber de Duobus
Principiis descanted on the dualism between a good and an evil
God, and in two sections, ad instructionem rudium and de persecu­
tionibus explained how the power which afflicts Christ and his
followers is wielded by the evil God.2 Not a few friars were like
Raynier, who had felt the attraction of the complete renuncia­
tion of early possessions and power, for thereby a load of evil
would be shed and the devil’s thrall escaped. They anticipated
Acton’s sentiment, that all power corrupts. The persuasions of
the Poor Men of Lyons, the Vaudois, and other groups, so
sharply at variance with the habits and religious culture of
feudalism, flowed into the Manichee rejection of the forces of
the physical world. That the combination did not produce a
widespread antinomianism was the work of St Dominic and
1 A. Berlhier. ‘Un Maître Orientaliste du XHIe siècle, Raymond Martin.’ AFP
vi, pp. 267-311. Rome, 1936.
! A. Dondaine. Un Traité néo-manichéen du XlIIe sikh. Le Liber de Duobus Principiis,
suivi <Tun fragment de Rituel Cathare. Paris. 1939.
S. Runciman. The Medieval Manichee, vi. Cambridge, 1947.

THE SPIRITUALS

71

St Francis. The Franciscan dedication to absolute poverty was
imitated more hesitantly by the Dominicans than by their
founder; their adoption of corporate poverty lasted only for
some decades, and even with respect to individual poverty
they made an exception for books.
Extremists among the religious revivalists broke the bounds
of law, and doctrines reappeared which St Augustine had known
from the Montanists. The Spirituals merged with the followers
of the Abbot Joachim of Fiore (i 145-1202), who had prophe­
sied a reign of love which would dispense with the adoption of
physical force or a juridical Church. The Dominicans, cooler
and perhaps more quizzical, were constitutionally less shaken
than the Franciscans by these movements. They formed a
confident corps, well-trained in philosophy and theology,
united in discipline, not typically represented by John of
Vicenza, a political thaumaturge finally discredited, but not
before he had been entrusted with dictatorial powers by his
native city. When they stood up to the imperial authorities or
fell foul of the beneficial clergy they could feel confident of
papal backing.1 They on their side were the Pope’s men and
often employed in his service, although their conviction about
his spiritual primacy did not commit them to the political cause
of the Canonists and their sympathies were not settled in the
early stages of the debate about his supremacy with regard to
a General Council. John Torquemada, however, was the fore­
most defender of the Papal position after the Council of Basle,
and a generation later Cajetan, the greatest theologian of the
age, moved the whole question from Canon Law into theology.2
A self-assured caste seems to produce good eccentrics, and
the outcrop of Dominican originals can be compared to that of
other stable social strata—to the mannerisms of the Grand
Whiggery, the bohemianism of the early nineteenth-century
upper middle-classes, the singularities of old-fashioned dons,
country parsons and naval officers. Inevitably they were
1 D. L. Douic. The Conflict between the Seculars and the Mendicants at the University of
Paris in the Thirteenth Century. London, 1954.
C. Sutter. Johann ion Vicenza. Freiburg, 1891.
’ H. Jedin. A History of the Council of Trent. Tr. E. Graf, i, pp. 27-31, 114. London,
«957·
7

72

THE ORDER OF PREACHERS

accused of arrogance and a humble Dominican was said to be
as rare a bird as a monk out of pocket. St Albert, Master
Eckhart, St Catherine of Siena, Cajctan, Melchior Cano
Bucer, Giordano Bruno, Campanella, de las Casas, Thomas
Gage, Labat, Lacordaire, Gonzales, McNabb, and many more,
a few to the point of heterodoxy, most to the Church’s benefit,
have not quite echoed the note of the men in office. Yet they
have kept to the severity of St Thomas’s principles, and their
classical theology has been on the side of reason and law;
perhaps they were steadied by their rivalry with the Franciscans.
The later alliance otfraticelli, Ockamites, Rcgalists and Louis
of Bavaria shows what different types could combine to attack
the established order. The century which saw the rise of the
friars was certainly no period of dull and dutiful security. As
property bulked larger so its very grounds were undermined.
As the official forms of power were made more solemn so its
consecration was attacked. As legality extended so anarchy had
greater appeal. As sacramental discipline was tightened so
sentimentality became looser and more libertine. The promise
of die thirteenth century was not sustained; what may be called
the disciplined liberalism of St Thomas’s political thought was
succeeded by a style which simultaneously allowed for private
competitiveness and insisted on more corporative rigidity.
Nevertheless, while it lasted it was an eager and promising age
for the Church and civilization, full of life and spirited reasons.
The picture is less of a Norman church decorated by Fragonard
and Blake and Dali than of a Gothic cathedral which may look
asymmetrical and askew and be traceried irregularly and riot
with detail, some of it ribald, but which rises from deep founda­
tions according to an efficiently engineered disposition of pillars,
arches and buttresses.

PHILOSOPHERS
strict rationalism be separated from theological typology
then most of the philosophical topics which engaged the
schoolmen before they discovered the Aristotelean corpus
can be represented as extensions of material logic or inquiries
into the attribution of abstract meaning to particular expe­
rience. That, of course, is to make a distinction not entertained
in the twelfth century and to read history backwards. The main
debate of the period concerned the bearing of general ideas, or
‘universals’ as they were called. Were they merely names, as
the nominalists contended, or were the Platonists right who
held they were more real than the individual shadows they
cast ? Or was the intermediate position of Gilbert de la Porrée
(d. 1154) well-founded? If we may speak of pure speculation
and leave out of account the humanist warmth of Chartres,
the interest in the natural sciences elsewhere and the devotion
to ancient wisdom nourished by lectio and meditatio, it may be
said that philosophy, austerely pursuing conceptual analysis
and lacking the Ionian sympathy with material nature to be
learnt from Aristotle, almost seemed to consist in putting things
into categories. It was anatomical rather than biological.
Despite the monism which appeared at the beginning of the
thirteenth century’, with Amaury of Bène who said we should
laugh, not mourn, because of the divinity at play within the
world, and with David of Dinant (or Dinan) who identified
the divinity with matter itself, the metaphysical feel for dynamic
processes was slight, and so was the appreciation that physical
things were real in themselves and manifested a teleology
through their inner workings.1 Philosophers did not apply
f

I

1 la. iii, 8. IVSentences II, xvii, I.
Vincent of Beauvais. Speculum Historiale, xxx, 107.
G. Théry. ‘Essai sur David de Dinant d’après Albert le Grand et saint Thomas.’
Melanges Thomistes, p. 402. Paris, 1923.
F. Copleston. A History of Philosophy, ii, pp. 138-85. London, 1950.
M. D. Chenu. ‘L’Homme et la Nature. Perspectives sur la Renaissance du Xlle
siècle.' AHDL, xîx. pp. 39-66. Paris, 1952.

73

PHILOSOPHERS

Aristotle’s principle, that natures could be known from their
proper ends. Instead the world was a drama in which things
were presented as allegories of something else, a shadow-play
conducted by ritual and interpreted by myth. As for purely
rational criticism, then the human environment was read in
schematic terms and its items were marked with a fixed and
almost legal status. A pattern of meanings was read into rather
than drawn from the world. A hierarchy of values was disclosed,
not a biological flow. Men had a strong sense of material reality,
but not a strong philosophy in its favour. It was as though the
mind were a spiritual pilgrim through this life, not an active
sharer with material forces. Aristotle’s psychological teaching
had not yet affected the schools, and the consequences drawn
from it by St Thomas, that the mind is the only living substan­
tial principle within the body and therefore belongs to the
physical world, were to come as a shock.
The metaphysical mood, however, was pluralist. The follow­
ers of Avicenna and Averroes may have accentuated the
contrasts between the realm of necessity contemplated by an
aloof and possibly unique intellect and the series of con­
tingent events touched by manifold sensations, but they left
intact the Western conviction that human individuals were
real, responsible and important.
The philosophy of human conduct reflected the ethics of the
Stoics, simultaneously full of public zeal and cool before the
natural warmth of huddling together and living in community.
Detachment from passion, preached by the admired moralists,
was strengthened by a strain of nco-Platonism. Plotinus des­
cribed the virtue of the purged soul which, escaping from the
mesh of relationships in the visible world, achieved a lonely
poise.1 He had soldiered in the East under the Emperor
Gordian, but only to learn Persian and Indian ways of thought,
and he seemed to have been destitute of social feeling. Traces
of the teachings of the Cynics appear in the religious homilists—
indeed their attitude towards secular power was touched by a
certain cynicism in the modern sense of the word, also by an
ascetical fastidiousness not uninfluenced by the Epicureans.
1 la-aac. Ixi, 5.

LAWYERS AND PHILOSOPHERS

75

The jurists, of course, were not given to meditations on an
otherworldly mystery nor did they seek to escape out of the
conditions of this world. Yet in those days, when the stream of
thought did not run shallow, theological and philosophical
questions were matters of public and even legal and political
interest. The classical Roman authors themselves, though dis­
trustful of definition and deduction after the Greek fashion, had
not been merely legal practitioners pursuing an exclusively
empirical method. Nature, a foil to convention in social thought,
in some contexts could be referred to animal instinct, as by
Ulpian, in others it could be identified with reason, as by
Gaius; in both cases it stood for what was not, in the legal
sense, civilized. The contrast was repeated in theology where
nature was taken either as primitive and unregenerate or as
original and innocent; there again it stood for what was over­
laid by the economy of grace.
Consequently civilization could appear as a formal dignity
and conventional politeness, a creation of the juridical order,
an artificial achievement which concealed or crowned, accord­
ing to the view taken of Nature, the underworld of rude or at
least uninhibited forces. No literary cult of the noble savage
was practiced, yet medieval Augustinism anticipated the feeling
of the Enlightenment that civilization levied a heavy price.
That the secular power of coercion was resented does not
appear: the fact was accepted. Divines might sombrely discuss
its origins, yet they saw no practical alternative if potentially
criminal appetites were to be tamed. Religion itself was coming
to be expressed more and more in juridical and institutional
terms and invoking heavier sanctions. Except from partisans of
Abelard and from evangelical movements which claimed
greater freedom and familiarity with God than seemed allowed
by the formularies of worship, few grievances were aired against
the principle and practice of Church authority. The mien of
orthodoxy became more ceremonious, but the inner life of
devotion coursed as impetuously as ever.

I. The New Naturalism
The symbolic interpretation of this world was changed when
Aristotle was discovered. Already writers were beginning

76

THE NEW NATURALISM

to show a curiosity about nature, and in England especially
empiricism had struck root. Frederick H’s scientific coterie
studied physical processes for their own sake, and he himself
was a field-naturalist who was not content with old wives’
tales but sought by first-hand observation and experiment to
discover whether vultures had a sense of smell and what went
on during human digestion.1 His falconer was Rinaldo
d’Aquino, brother to St Thomas and his kidnapper in a vain
attempt to keep him away from the Dominicans. Naturalism
was in the air. Learned men began to contemplate the parts of
reality as all of one piece, continuous from top to bottom, and
in effect opened the way for the scientific study of institutions
both sacred and profane.
They perceived that a political community was fastened
together less by a mesh of positive laws than by natural kinship,
sympathy and sense of friendliness.1
2 The pity was that the later
Aristoteleans, insensitive to literature and unresponsive to ens
sensibile et mobile which is the object of natural science, lost the
pioneering spirit and found themselves left in logomachies. Not
until the Renaissance were the absurdities of an excessive and
exclusive a priori method derided and inductive pursuits intensi­
fied in the schools of serious research. Aristoteleanism, however,
was still young and experimental in the thirteenth century.3
Then it was that political science reappeared as the study of
the fundamental laws of human association, and men came to
see that the civilized group rose from the biological mass and
might contribute to the spiritual expansion of personality. The
State was neither artificial nor imposed, and its inherent power
to command possessed a dignity greater than that of keeping
original sin well battened down.
If Plato’s problem-raising temper was not apparent in the
dogmatic spirituality of the Neo-Platonists, his general philos
*
1 de Arie venandi cum avibus. The Art of Falconry. Ed. C. A. Wood and F. M. Fyfe.
London, 1956.

8 M. Hamburger. Morals and Laze: The Croicth ofAristotle's Legal Theory. New Haven,
1951.
3 J. H. Randall. ‘The Development of Scientific Method in the Schoo! of Padua’.
Journal of the History <f Ideas, i. p. 177. 1940.
A. C. Crombie. Robert Grosseteste and the Origins of Experimental Science. Oxford, 1953.
C. H. Haskins. Studies in the History of Medieval Science. Cambridge (Mass.), 1927.

RATIONAL CIVICS

77

ophy, transmitted through Themistius, Philoponus, Simplicius,
Proclus, Plotinus and Boethius, and known to St Augustine,
profoundly affected medieval ideas. When the theologians
discoursed about there being no lasting city here below they
were in general accord with Plato’s school without knowing the
cut of his political thought. No medieval translations of the
Republic and Laws were in circulation. The Timaeus was received
as Plato’s political testament, the Republic was supposed to
be its second part and vaguely mentioned as represen­
ting what Socrates thought about the civil order and its
laws.1 Until the Renaissance most of the references to
Plato were taken from Aristotle. The texts of the Pseudo­
Dionysius translated by John Scotus Eriugcna (c.86o) and
his own speculations displayed a hierarchic universe in
which the visible things were theophanies, symbols of a spiritual
world, not profoundly real in themselves. The early schoolmen
disavowed the pantheism, but not the sentiment.
To this tradition Aristotle, with his strong sense of present
reality and unapologetic worldliness, threw down a challenge.
Addressing themselves scientifically to the inner natures and
purposes of material things in a fresh and bracing climate of
naturalism, men discovered rational and therefore divinely
given values in the ethics and politics of pre-Christian anti­
quity.2 Its social ideas were rather different from their own, for
no organized religion stood over the self-sufficiency of Aegean
communities to question policy in the name of a higher law.3
Few conceived of a natural order untroubled by the super­
natural, but a civic cirtue was admired which was not beholden
to the life of grace, and later a self-reliant rationalism was
released which professed to be able to manage without the
control of faith.
Its ideal was not that of the Societas Christiana, but of a selfsufficing civil community having the resources within itself to
satisfy all reasonable social needs; it was developed by men
1 St Albert. Commentary I Politics, cap. i, t.
* E. Gilson. ‘Le moyen âge et le naturalisme antique.’ AHDL vii. Parts, T932.
M. T. d’Alvemy. ‘Le cosmos symbolique du XI le siècle.’ AHDL, xx, pp. 31-81.
Paris, 1953.

* A. H. M. Jones. 77» Greek City. Oxford, 1940.

78

ARISTOTLE FROM THE ARABIC AND GREEK

themselves from their own needs and its constitution was not
given to them from above. The habit of reasoning about it
combined with the dialectical expansion of the Roman Law,
notably with respect to the power of the Princeps apart from the
Roman Pontiff, to produce the secularism of later centuries.
Both the Polis of Greece and the Imperium of Rome were thought
to be models when the Nation-States were taking shape. The
early Aristoteleans, however, were moved by no such cause;
their immediate concern was merely to disengage a social and
political discipline from the previous mixture of morals and law.
Before Aristotle’s Ethics and Politics were discovered, attention
had been mainly directed to what had been done, as revealed in
charters, capitularies, synodal acts, chronicles, homilies and
controversial tracts, in order to keep continuity with the past
and inculcate Christian social conduct. It was not until after
commentaries on Aristotle were followed by formal and
systematic expositions which drew from the sources of Greek
social thought and Roman jurisprudence that political science
freed itself and devoted itself to the study of raison d'etat.
2. Aristotle from the Arabic and Greek

The drama of an orientalized Aristotle bursting in is now
shelved. His entrance into the West was more gradual. His
influence, first felt in logic, passed progressively into physics,
astronomy, and biology, and then into metaphysics, psychology,
ethics and politics. He was the central figure of controversies
which mounted during St Thomas’s teaching career and for a
few years after his death and then sank down. The Dominicans’
vindication of their master was sufficiently successful. A hundred
years later and the Scholastics were using Aristotle’s name as a
substitute for first-hand inquiry.
To begin with logic. Lost Latin translations by Boethius had
been recovered and embroidered by other hands. At the be­
ginning of the twelfth century the Old Logic’ of the Categories
and Perihermeneias together with Porphyry’s Isagoge were known,
and by its end the Organon was completed by the ‘New Logic’
of the Prior Analytics and Posterior Analytics, the Topics, and the
de Sophisticis Elenchis. So far Aristotle was no cause of contention,

SPAIN TO NAPLES

79
but the admired master for dialectics. On the west front of
Chartres he sits meditating together with Cicero and Donatus,
an orator and a grammarian; the early Scholastics did not look
to him for the substance of their philosophy.
A change set in when his other works were put into circula­
tion. The indoctrination spread first from Toledo on the
Christian frontier with Islam. Mingled with the teachings of
the schools of Baghdad and Cordova, the Latin texts of Aristotle
were taken from the Arabic. Gerard of Cremona (d. 1187)
translated the de Coelo et Mundo, de Generatione et Corruptione, and
the first three books of the Meteorologica. The centre then shifted
to the court of Frederick II, some of whose savants were no less
alien to the European tradition than his bodyguard of Saracen
archers. By the time of Michael Scot (d. before 1236), who
personified this passage from Spain to Italy, most of the
cosmological, psychological, and metaphysical treatises were
being studied.1 Yet so far scholars had reached only the edge
of Greek science and philosophy.
The texts were ill-translated. They were presented together
with interpolations from the great Arab philosophers, Avicenna
(d. 1037) and Averrocs (d. 1198)—the first an earlier and more
persuasive influence though not in political thought, the second
more pointed and controversial2—and ventilated opinions un­
welcome to Christian belief and sentiment. The result was that
a provincial council at Sens (1210), which also condemned the
pantheism of David of Dinan and his contemporary Amaury of
Bene (d. 1207), forbade public and private lectures at Paris on
the natural philosophy of Aristotle and his commentators.
Five years later the legate, Robert Curzon, renewed the ban:
the Organon and the Ethics were expected. It was not withdrawn
after the panic had died down, but became a dead letter; the
‘English Nation’ at Paris University officially organized public
1 F. Uebcrwcg and B. Geyer. Die Patristische und Scholastiche Philosophie, pp. 342-5,
359-62, 368-71· Berlin, 1928.
S. D. Wingale. The Medieval Latin Versions of the Aristotelean Latin Corpus. London,
>93»·
E. Gilson. Christian Philosophy in the Middle Ages, v, pp. 181-234. ‘Arabian and
Jewish Philosophy.’
* K. Foster. ‘Avicenna and Western Thought in the Thirteenth Century.’ Aricenna,
Scientist and Philosopher. Ed. G. M. Wickens. London, 1952.

8o

ARISTOTLE FROM THE ARABIC AND GREEK

lectures on the whole Aristotclean corpus (1225),1 and Gregory
IX admitted the provisory character of the prohibition and
called for corrected editions of Aristotle (1231).
The sack of Constantinople (1204) during the fourth Crusade
furnished more manuscripts and opportunities for learning.
From about the middle of the century the two most notable
translators from the Greek were Robert Grosseteste and William
of Moerbckc—an Englishman and a Fleming. Manfred in
Naples followed the example of his father, Frederick II, and
commissioned Bartholomew of Messina to translate the Magna
Moralia\ the Economics followed shortly afterwards. By then
Oxford and the Papal Court had become the chief centres of an
Aristotcleanism less perturbed than in Naples by civil war and
in Paris by controversies about whether the reason could go its
own way without reference to the truths of religion. In England
a habit of studying this world in a soberly scientific and
humanist spirit went back more than a hundred years through
Alfred of Sarcschel—Alfredus Anglicus—and his friend,
Alexander Ncckham, to Adelard of Bath. Rome kept its
equanimity, for St Thomas’s address secured the patronage of
Urban IV (1261-4) and Clement IV (1265-8), both of them
French.
Semi-authoritative hostility remained, nevertheless, and the
tolerance show to Aristotelcanism by the Franciscan John of
Rochelle (d. 1245) was not countenanced by his Order. The
situation was complicated by those who mistook Averroës for
Aristotle. Their teaching on human responsibility, personal
immortality and God’s particular Providence could not be
reconciled with the truths of religion, and they seemed to be
laying the foundations of a purely secular culture in defiance of
the Christian social tradition.2
The threat offered by these Latin Averroists, as they came to
1 M. de Wulf. Histoire de la philosophie mddidvale, i, p.p 235-6. Louvain, 1924.
* F. Copleston. A History of Philosophy, ii, pp. 435-41, ‘Latin Avcrroism'. London,
>950.
E. Gilson. History of Christian Philosophy in the Middle Ages. pp. 387-402. London,
>955·
D. H. Salman. ‘Saint Thomas et les traductions latines des Métaphysiques
d’Aristote,’ and ‘Jean de Rochelle ct l’averroismc latin.’ AHDL, viii and xvi.
Paris, 1932, 1947.

LATIN AVERROISM

8l

be called, was one of the reasons why St Thomas was posted
in 1269 by his Master General from the Papal Court to
Paris. The distinction he drew, together with St Albert, between
the proper reading of Aristotle, which of course he thought was
his own, and that of Siger of Brabant, usually regarded as the
leading Parisian Averroist, eventually came to be accepted, but
not before he had been condemned in council in 1277 by
Stephen Tempier, Bishop of Paris, Kilwardby and Peckham,
Archbishops of Canterbury, followed the same tenor in dealing
with Thomist teaching at Oxford, though less solemnly.
Peckham noted that even among the Dominicans Thomas’s
position was pungently debated, etiam a fratribus propriis argue­
batur argute; the Franciscans at their General Chapter held at
Strassburg in 1284 forbade the circulation of the Summa
Theologica except among lecturers who were notabiliter intelli­
gentes, and with the proviso they must be provided with
William de la Mare’s Correclorium Fratris Thomae, which
amended him on 117 counts.
The dispute was less about Averroës himself, who was held
in general respect and referred to by St Thomas as the Com­
mentator, than about the Latin Averroists. The questions
round which it revolved, the eternity of the world, the individu­
ation of human minds, and the relationship of reason and faith,
were not of immediate political interest. The complete Ethics
and Politics of Aristotle slipped in under cover of the smoke, and
it was not until towards the close of the thirteenth century that
the special problems they raised were made manifest or were
used by the Averroists to disconcert orthodoxy. Before then the
Ethics had taken its place in the curriculum of Dominican
schools and university faculties. The Politics was not often
mentioned.
The Ethica Vetus (Ethics, ii and Hi) was available before the
end of the twelfth century, the Ethica Nova (Ethics, i) by 1210.
Fragments from elsewhere (particularly from Ethics, vi) were
incorporated by Robert Grosseteste in the first complete Latin
version made probably between 1245 and 1247. St Albert’s
lectures on the Nicomachean Ethics delivered at Cologne in 1249
and taken down by his student St Thomas were based on this
translatio Lincolniensis. Touched up by the Dominican William

82

ARISTOTLE FROM THE ARABIC AND GREEK

of Moerbekc, afterwards chaplain to Pope Clement IV and
Archbishop of Corinth, it served as the text for the earliest
commentaries.1
The first Latin translation of the complete Politics seems to
have been that made by William of Moerbeke about 12602: he
may have been the author 0Γ two extant manuscripts of an
earlier translation of the first two books.3 Unlike his other
translations, it was not a revision of a text already in circula­
tion, but was freshly done from Aristotle. From the promise in
the Ethics of a programme on the State its existence had already
been surmised.1 To him belongs the credit of introducing it to
the West.
The stage had long been set for this special discipline. The
statesman Boethius (e. 524) wrote the much-studied de Consola­
tione philosophiaey which was not a political guide, for it looked
away from the mishaps of earth to the serene order of eternity
notwithstanding passages of Aristoteleanism and Stoicism.5
Cassiodorus (d. c. 570) spoke of avilis philosophia ministering to
the benefit of the whole city, and the text is duly noted by St
Isidore and repeated by Hugh of St Victor.6 The following
century remembered the Victorines, but forgot the old Senator
—only his Exposition in Psalterium was cited by St Thomas, a
* S. H. Thomson. The TPrfttRgs of Robert Grosseteste, Bishop of Lincoln. Cambridge,
r^o.
F. M. Powickc. Rabat Grosseteste and the Sicomachean Ethics. Proceedings of the
British Academy, xvi. London, 1930.
D. A. Callus. ‘The date of Grosseteste’s translation and Commentaries on the
Pseudo-Dionysius and the Nicomachean Ethics.’ RTAM, jdv, pp. 186-204.
Louvain, 1947.
A- Pelzer. ‘Le cours inédit d’Albert le Grand sur la Morale à Nicomaque recueilli
et rédige par saint Thomas d’Aquin. Revue ndo-scholasliqtie de philosophie, xxiv,
PP· 333“Gi, 47ÎT52O. Louvain, 1922.
Λ. Mansion. ‘Quelques travaux récents sur les versions latines des Ethiques et
d’autres ouvrages d’Aristote.’ Revue nfo-scholastique, xxxix, p. 86. Louvain,
I936·
.
r.
E. Franceschini. ‘La revisione Mocrbekiana délia.’ Translatio Lincolniensis della
Ethica Nicomachca, Rivista jVeo-Scolaslica, xxx, p. 159. Milan 1938.
s So dated from the first clear reference to it, 111 Contra Gentes 22.
’ G. Lacombe. Aristoteles Latinus, i, pp. 74-5. Rome, 1939.
« 1135 a 12.1181 b 12-33.
1 Ed. A. Fortescue and G. D. Smith. London, 1925.
♦ PL clxxvi, 759.
R. A. B. Mynors. Cassiodori Senatoris Institutiones. Oxford, 1937.

POLITICAL THOUGHT OF ISLAM

83

sign of the decline of letters. Abelard discussed the communis
utilitas.1 Dominic Gundissalimis picked up from Alfarabi the
mention of a scientia politica sive civilis racio and also a reference
that Aristotle had written a work on politics.1
2
Among the Arabic philosophers of the East, Alfarabi did not
discuss its contents, and Avicenna, though he devoted two
summary chapters to political science at the end of his Meta­
physics, made no mention of it. Among the Arabic philosophers
of the West, Averroës had an active career as judge and physi­
cian; the Politics was not available to him, but his paraphrase of
Plato’s Republic showed the influence of the Nicomachean Ethics.
His work was not translated into Latin until 1539, but a
medieval Hebrew translation, by Solomon ben Yehuda of
Marseilles, is evidence that a political terminology had yet to
be coined.3 The famous Secretum Secretorum by a pseudo­
Aristotle, also entitled Liber Moralium de Regimine Dominorum or
de Regimine Principum Aristotelis, supposedly addressed to
Alexander the Great, was translated by Philip of Tripoli,
quoted by Michael Scot, and commented on by Roger Bacon.4*6
The texts reached Europe at several removes, having first
gone into Asia and Africa. The early translations neither
conveyed the political preoccupations of Athens, for that would
have required an effort of historical perceptiveness beyond the
power of the medievals, nor rendered at first-hand the original
phrases, for the Latin was based on the Arabic, which was based
on the Chaldaic, and thus on the Greek. Cicero was the only
author on social philosophy included in a reading list for
Paris University which dates from between 1230 and 1240. It
referred to economic ethics asypotica—ab ypos, quod est sub, quod
est scientia de subditis.
*
One could not go very far on such scraps.
A decade or so later, St Albert’s first lecture-course on the
Ethics made no mention of the Politics although by then he was
1 Dialogus inter philosophum judaeum et clrristianum. PL clxxviii, col. 1653.
J. G. Sikes. Peter Abailard. Cambridge, 1932.
1 de Divisione Philosophiae. Ed. L. Baur. Beitrüge, hr. Munster, 1903.
*E. I. J. Rosenthal. Averroes's Commentary on Plato's Republic. Cambridge, 1956.

♦ G. Lacombe. Aristoteles Latinus, i, p. 93.
R. Steele. Opera hactenus inedita Regeri Bacon. Oxford, 1920.
6 F. van Stcenbergen. Aristotle in the West. Pp. 95“7· Louvain, 1955·

84

ARISTOTLE FROM THE ARABIC AND GREEK

basing himself on a translation straight from the Greek.
Robert Kilwardby, his contemporary, was equally silent; the
de Ortu Scientiarum enumerated three interests of practical
science, namely, philosophia ethica, philosophia mechanica, and
sermocinales—the art of speech.1
From about 1260 onwards the situation changed. Aristotle
opened a field of natural and theological philosophy which
could be worked without recourse to Christian theology. The
distinction, not accepted by the Franciscan and early Domini­
can doctors though employed as a valid abstraction by the later
Dominicans, was pressed to extremes by the upholders of the
‘Double-Truth’ theory—that the truths of faith and of reason
could contradict one another and both could still be sincerely
professed. The abstraction was made concrete, and a distinc­
tion of complementary discipline became a separation of frames
of mind. The fracture extended into social thought. A ‘Double
City’ theory was proposed, and the lurking problem of divided
allegiance was brought into the open, this time by the philoso­
phers, not the theologians.
Before the reign of Constantine the Christian Church had
stood apart from the State. After the breakdown of the Roman
Empire it did not enter at first into the organic life of the new
nations, and for various reasons. The pagan religion of the
tribes was closely linked with kingship; they were migratory
until the sixth century, and when they settled down their
territorial boundaries did not always correspond to the ecclesi­
astical provinces which went back to the days of the undivided
Empire; above all their government was frequently Arian. The
situation changed with the ascendancy of the Catholic Franks
and the conversion of the Goths. Matters civil and ecclesiastical
then intermingled, and national churches were ruled by the
king: Charlemagne conceived it his duty to rule the Church no
less than the State.2 There was a second dissolution during the
‘Second Dark Age’ when the Vikings from the north, the
Magyars from the east, and Moslems from the south threatened
the remains of the Carolingian Empire.2 Again the barbarians
were converted, and the reform of religious discipline was
1 E. M. F. Sommer-Scckendorff. Studies in the Life of Robert Kilwardby. Rome, 1937.
3 C. Dawson. Religion and the Rise of Western Culture, pp. 97-115.

THE CITY OF REASON

85

consolidated when the great Hildebrand (d. 1085) freed
episcopal appointments from feudal control and maintained
against the German Emperor the supremacy of the spiritual
over the temporal power. The sacerdotium contained the regnum
within the single Respublica Christiana.
The ambiguous victory, however, was hard won, and when
Aristotle appeared on the scene his prestige was joined to the
growing majesty of the Roman Civil Law in order to set up
secular power in its own right. Aristotle’s impact was all the
greater because it was disinterested ; unlike many legists he had,
as it were, no axe to grind in the protracted disputes between
spiritual and temporal power. Men had thought of the societas
Christiana descending from above, unified by the sacramental
act of baptism, but now they were shown a social instinct
working through an ascending process from the natural con­
junction of male and female and the household and the
neighbourhood-group to a self-sufficing communitas humana.
The political community in ancient Greece had not depended
on supernatural religion—why then should the revival of its
purely reasonable system look to Church authority? The justice
described in the seventh book of the Ethics was a dynamic
virtue going beyond obedience to the Tables of the Law or
conformity to a code. The humana civilitas was no artificially
contrived institution but sprang from man’s social nature; it
was no mere instrument but the end and purpose of virtue, no
mere remedy for sin but a noble object. The vision of a united
Christendom remained for centuries, but already it was
accepted that the authority of the State derived neither from
nor through the ceremonial, juridical, and official ordinances
of the Church.
How far St Thomas went in this direction the following pages
may show. He reverenced Aristotle as his leader in ethical and
political philosophy. Many of his contemporaries saw little
difference between him and Siger of Brabant, and the con­
demnations of 1277 lumped both together. Nevertheless the
creation of a purely secular enclave in a wider scene, a City of
Reason in which human nature as it actually existed could be
at home, was no part of his thought. He considered that the
rational animal was a true type and a proper study, that

84

ARISTOTLE FROM THE ARABIC AND GREEK

basing himself on a translation straight from the Greek.
Robert Kilwardby, his contemporary, was equally silent; the
de Ortu Scientiarum enumerated three interests of practical
science, namely, philosophia ethica, philosophia mechanica, and
sermocinales—the art of speech.1
From about 1260 onwards the situation changed. Aristotle
opened a field of natural and theological philosophy which
could be worked without recourse to Christian theology. The
distinction, not accepted by the Franciscan and early Domini­
can doctors though employed as a valid abstraction by the later
Dominicans, was pressed to extremes by the upholders of the
‘Double-Truth’ theory—that the truths of faith and of reason
could contradict one another and both could still be sincerely
professed. The abstraction was made concrete, and a distinc­
tion of complementary discipline became a separation of frames
of mind. The fracture extended into social thought. A ‘Double
City’ theory’ was proposed, and the lurking problem of divided
allegiance was brought into the open, this time by the philoso­
phers, not the theologians.
Before the reign of Constantine the Christian Church had
stood apart from the State. After the breakdown of the Roman
Empire it did not enter at first into the organic life of the new
nations, and for various reasons. The pagan religion of the
tribes was closely linked with kingship; they were migratory
until the sixth century’, and when they settled down their
territorial boundaries did not always correspond to the ecclesi­
astical provinces which went back to the days of the undivided
Empire; above all their government was frequently’ Arian. The
situation changed with the ascendancy of the Catholic Franks
and the conversion of the Goths. Matters civil and ecclesiastical
then intermingled, and national churches were ruled by the
king: Charlemagne conceived it his duty to rule the Church no
less than the State.2 There was a second dissolution during the
‘Second Dark Age’ when the Vikings from the north, the
Magyars from the east, and Moslems from the south threatened
the remains of the Carolingian Empire.2 ?\gain the barbarians
were converted, and the reform of religious discipline was
1 E. M. F. Somnier-SeckendorfF. Studies in the Life of Robert KiluOrdby. Rome, 1937.
* C. Dawson. Religion and the Rise of Western Culture, pp. 97-115.

THE CITY OF REASON

85

consolidated when the great Hildebrand (d. 1085) freed
episcopal appointments from feudal control and maintained
against the German Emperor the supremacy of the spiritual
over the temporal power. The sacerdotium contained the regnum
within the single Respublica Christiana.
The ambiguous victory, however, was hard won, and when
Aristotle appeared on the scene his prestige was joined to the
growing majesty of the Roman Civil Law in order to set up
secular power in its own right. Aristotle’s impact was all the
greater because it was disinterested; unlike many legists he had,
as it were, no axe to grind in the protracted disputes between
spiritual and temporal power. Men had thought of the societas
Christiana descending from above, unified by the sacramental
act of baptism, but now they were shown a social instinct
working through an ascending process from the natural con­
junction of male and female and the household and the
neighbourhood-group to a self-sufficing communitas humana.
The political community in ancient Greece had not depended
on supernatural religion—why then should the revival of its
purely reasonable system look to Church authority? The justice
described in the seventh book of the Ethics was a dynamic
virtue going beyond obedience to the Tables of the Law or
conformity to a code. The humana civilitas was no artificially
contrived institution but sprang from man’s social nature; it
was no mere instrument but the end and purpose of virtue, no
mere remedy for sin but a noble object. The vision of a united
Christendom remained for centuries, but already it was
accepted that the authority of the State derived neither from
nor through the ceremonial, juridical, and official ordinances
of the Church.
How far St Thomas went in this direction the following pages
may show. He reverenced Aristotle as his leader in ethical and
political philosophy. Many of his contemporaries saw little
difference between him and Siger of Brabant, and the con­
demnations of 1277 lumped both together. Nevertheless the
creation of a purely secular enclave in a wider scene, a City of
Reason in which human nature as it actually existed could be
at home, was no part of his thought. He considered that the
rational animal was a true type and a proper study, that

86

ARISTOTLE FROM THE ARABIC AND GREEK

natural justice was a necessary foundation of all morals, and
that reason had its rights. Nevertheless good sense and good
will were only part of the story. Men needed Divine Revelation
and supernatural help, and their social organization should be
open to and integrated in the kingdom of grace. The complete
order should be considered in one sweep, and men taken as
wholes, not as two things, one the body and the other the soul,
one the material man and the other the spiritual man, one the
subject of the State and the other a member of the Church. A
theology’ which failed to sec that could be but a sectarian
discipline.
Church and State were not separate institutions before the
fourteenth century; the conflicts between Popes and Emperors
were between different dignitaries within a single united
Christendom. If the early Parisian Avcrroists were an anxiety
to the ecclesiastical authorities for doctrinal reasons, there is
nothing to show that they were lacking in public respect for
religion, or that they were disposed to set up a rival magis­
terium in the later manner of Marsiglio of Padua and his
friend, John of Jandun. They claimed little more than the
academic liberty of reasoning how they liked. The logic of the
Double-Truth theory allowed a man to profess whole­
heartedly, though scarcely singlc-mindcdly, the truths of faith.
After all a saint had said, Credo quia impossibile, and snubbing
the reason was a fashion for holy men. Yet if the contradiction
may serve very’ well as an interim attitude, its long-term effects
on the psychological health of individuals and society arc less
happy.
A formal rejection of the Church’s right to be in politics and
the assertion that religion was a private affair would have
sounded equally strange during the thirteenth century. All the
same a secular political spirit was coming to grudge the claims
of clerical power. Papal decrees tried to withdraw the clergy
from secular employment and a new class of lay-lawyers was
taking their place not only in the courts but also in the councils
of State. They were the chief instruments of the change. It is
difficult to assess the part played by the early Nco-Aristoleans.
The Arab transmitters of Aristotle to the West were not politi­
cally minded. The evidence is scanty for the social views of the

SIGER OF BRABANT

87

early Latin Averroists, yet it is a safe conjecture that they
influenced the juridical and political thought of the period
since they were prominent in the Faculties of Arts.
There is no record of any practical consequences of their idea
of a world ruled by a determinism which might have been
expected to disallow our free responses to a freely-working
Providence. There are indications they extolled a model of the
good life in which Christian humility was not prominent. The
wilder spirits scoffed at poverty and chastity—‘a folly to the
Greek’—but then so did the orthodox in unbuttoned moments.
Sigcr of Brabant and Boethius of Dacia—Boethius of Sweden,
said to have been a Dominican—left ethical pieces which
favoured practical self-sufficiency and a contented rationalism.
Siger adjudicated on problems arising from the Politics', for
instance, was the city better ruled by good laws than by good
men?1 But that the doctrine of a single Cosmic Mind led him
and his followers to favour a State Monism or be indifferent to
individual rights is not borne out by what is known about them.
It would have been to their advantage to preach liberty.
Tolerance, however, was not a value actively respected by the
mcdicvals, despite the teaching of some theologians that con­
science should be respected and infidels not be forced to the
wedding-feast, and even they substituted the compelle remanere
for the compelle intrare and did not reprobate the death-penalty
for heresy.1
2 Humanitarians were few in those days.
1 A. P. D’Entrcves. Dante as a Political Thinker. Oxford, 1952.
E. Gilson. Christian Philosophy in the Middle Ages, pp. 399, 725. ‘Boècc de Dacie cl
la double vérité, AHDL, xxii, 1955.
For the Summa de Bono, see M. Grabmann, AHDL, vi, p. 187. Paris, 1932.
F. van Stccnbergen. Siger de Brabant d’après les oeuvres inédits, pp. 115, 299, 321,
534. 2 vols. Ixravain, »931, 194a.
G. de Lagarde. Naissance de l’esprit laïque au déclin du moyen âge, iii, 2, ‘Les facultés
des arts et raverroisme?
R. M. Giguèrc. Jean de Sècherille, de principiis naturae. Montreal, 1956.

2 2a-2ac. x, 8, 9, 11. IV Sentences, XIII, ii, 3.
J. Lcder. Histoire de la tolérance au siècle de la Réforme, pp. 65-123. Paris, 1955.

s

THE DEVELOPMENT IN ST THOMAS

Politics was already out of date as a practical plan
during Aristotle’s lifetime, for, when he wrote, the Greek
City-States which provided his models had been sub­
jugated by Philip of Macedon and by his own pupil, rXlexander
the Great, the mightiest empire-builder in history. Caesar
succeeded to Alexander, Pope and Holy Roman Emperor
to Caesar. The generalization is fair enough that from the days
of Aristotle to those of St Thomas there was a movement from
Polis to Imperium, though historically many types of social
organization co-existed and a similar expansion was not found
in all of them.1
After the barbarian invasions and the break-up of the
Western Empire the fact of dominion was more important than
any theory about it. The time was not ripe for any claim to
universal sovereignty. Nevertheless the imperial attributes were
never quite forgotten, and they were revived from the time of
Charlemagne, the founder of what came to be known as the
Holy Roman Empire. There was an Emperor but scarcely an
Empire, for the Imperium was a symbolic function rather than
an organized territorial power. The designation Roman first
appeared in 1034, not to rc-asscrt the world-wide pretensions
of ancient Rome but for opportunist reasons of diplomacy, and
Holy was adopted by Barbarossa in 1157 in order to compete
on an equal footing with the Pope and Sancta Ecclesia Romana.12
Both titles were thin, though real enough for Dante.
It was but a shadow of Rome, and lacked the communica­
tions, administrators, army, language and for many years the
Law which were the strength of the old Empire whose prerogahe

T

1 M. Hammond. City-State and World-State in Greek and Roman Political Theory until
Augustin. Cambridge, Mass., 1951.
2 G. Barraclough. The Medieval Empire: Idea and Reality. London, 1950.
R. Folz. L'idde de Γ Empire en occident du Ve. au XI Ve. silele. Paris, 1953.
A. Dcmpf. Sacrum Imperium. Geschichts und Staatsphilosophie des Mittelalters und die
politischcn Renaissance. Darmstadt, J 954.

9θ

THE RISE OF NATION-STATES

gi

tivcs it claimed. All the same there was no alternative in
Europe to the Emperor as supreme ruler of temporalities until
the nations achieved full political independence, except for
premonitions, which grew stronger after Hildebrand, of the
hieratic thesis that the Pope, sacerdos regalis and caput of the
whole corpus of Christians, held the keys of the law, claves juris,
as well as the keys of the kingdom of heaven, claves regni caelorum.
Local feeling was strong under feudalism, but national
patriotism was not so focussed to the distance that a sharp
image of the State still less of the Empire was held. A man
would follow his lord and fight against the heathen even on the
far frontiers of Christendom, yet small sense of official duty or
sendee towards the respublica coloured his immediate allegiance
and crusading devotion. In some respects he might be compared
with an Irishman nowadays, proud of his country even if
detached about its political constitution, who is ready to work
in Great Britain, pay its taxes and enlist for its defence, who is
loyal to his ship, regiment or squadron, without being com­
mitted to the national political cause.
All this began to change after the rise of the Italian Republics
and of the proud and independent realms which occupied the
territories of the old Roman provinces. A new type of political
community emerged, claiming its own appropriate mode of
service. The compact City-States and centralized Nation-States
fulfilled the conditions of the perfect political community
described in the Politics, and their completeness was capped
when their rulers claimed the attributes of the Princeps of Roman
Law: they were not of course like ‘the godly prince’ of the
Reformation State who governed both temporalities and
spiritualities. When it is said that Christendom was changed
into a collection of self-contained national communities reflect­
ing the ideas of Aristotle it is not suggested that Greek political
institutions were restored. Greek influences were weaker than
those of the Roman Law and of the economic forces that were
changing the social order; even the Renaissance State was a
modification of the medieval not a restoration of the antique.
Nevertheless Aristotle provided the theory to match the
occasion when a thousand-year-old process was reversed and
moved back from Imperium to Polis. There were many causes

THE DEVELOPMENT IN ST THOMAS
92
for the change. The lapse of imperial practice, national pride
and mistrust for Italian Rome, lay dissatisfaction with the
clerical theocracy, fiscal grievances and the increasing influence
of civil lawyers and the mercantile classes were among the
contributory factors. Feudalism was disintegrating, and with it
the prestige of the warrior-class. Social virtue became more
bourgeois, for the new civility used soldiers only for its own
defence; militaris was but an adjunct to regnativa and politica.1
The knightly classes protested that although they defended the
city they could take no part in the public life of Dante’s
Florence, which was run by busincss-men, unless they demeaned
themselves through being ‘ennobled’ in a guild. The cities of
the Empire also underwent rapid constitutional and economic
changes during the first half of the thirteenth century, and
Cologne, St Thomas’s first Dominican studium, was a formidable
centre of opposition to the Hohenstaufen cause.
The reception and development of political ideas in his
writings will be taken according to the order of the four chapter
headings of the first part of this study. His indebtedness to his
predecessors will be considered first in theology, next in
jurisprudence, thirdly with respect to a friar’s distinctive
conception of group-life, finally in Aristotclcan philosophy.
The method is convenient, yet not without the danger of
pulling out the strands from a close-knit texture of analogies
from every' human interest. One of the most abstract of thinkers,
paradoxically his body of thought is peculiarly liable to be
misrepresented when subjected to specialist treatment. The
separation of a purely rational philosophy from the sacra
doctrina of the Christian Revelation can be forced enough
without the further separation of a system of formal political
categories from the product.1
2 Inseparables may be made into
distinct ideas, but never into things apart. As he remarks,
realities which cannot be divided in actual fact may be separ­
ately considered by the reason.3 It is allowable, indeed necessary,
for scientific method to treat one class of values without attend­

1 2a-2ac. I, I, 2, 4.
2 T. Gilby. St Thomas Aquinas: Philosophical Texts, pp. xviii-xxi. Theological Texts,
pp. xi-xiii.
3 i a. bexxv, i, ad 1. de Hebdomadibus, 4.

THE LOCI

93
ing to another, and within that class systematically to go
through one part after another without losing sense of the
background. And so it should be possible to abstract the
theological, juristic, cultural and philosophical elements in his
social thought without tearing the whole.
The treatise on Law in the Summa Theologica contained his
only set piece on political theory: it should be supplemented
by sections from the treatises on Prudence and Justice.1 The
commentary on the Politics was merely the start of a paraphrase
of Aristotle’s text, the de Regimine Principum was a homiletic
instruction to the King of Cyprus left unfinished, and the de
Regimine Judaeorum was an answer to inquiries from the Duchess
of Brabant about discriminatory taxation at the expense of a
minority.2 The absence of formal reflections on feudalism was
less surprising from him than from John of Salisbury a century
earlier. Oddly, since he lived in the midst of them at the Papal
Court for the middle period of his teaching life (1259-68), his
writings give no inkling of the political ambitions of the
Canonists. He did not contend that all dominion descends from
God through the Pope, nor did he dwell on juristic ecclesiology.
Of the three types of theology enumerated by Varro, poetical
theology ad theatrum, civil theology ad urbem and natural
theology ad orbem, the last prevailed in his thought.3 His social
morality was systematically built into a philosophical and
theological structure, with few open references to the estab­
lished order of his day and fewer to its myths; he carried on the
work of rational analysis and systematization begun by Abelard.
The Summa Theologica was unattached to the massive growth of
political Papalism, deep-rooted in history and bearing the
regalia and effective symbols of authority both sacred and
1 Law, ia-2ae. xc-cviii. Prudence, aa-aae. xlvii-lvi. Justice, 2a-aae. Ivii-cxii.
’ la-aae. xc-cviii. (c. 1270) In viii libros politicorum Expositio (c. 1269). Authentic to
iii, 6 inclusively (1280-7); the rest was by Peter of Auvergne, de Regimine
Principum ad regem Cypri, also entitled de Regno (c. 1266}. Probably authentic
to ii, 4 inclusively: the rest by Ptolemy of Lucca, (cf. J. A. Endres. De Regimine
Principum des hl. Thomas von Aquin. Munster, 1913). de Regimine Judaeorum ad
ducissam Brabantiae, also addressed ad comitissam Etandriae (1261-72). The
authentic section of the de Regimine Principum is translated by A. P. D'Entrèves
and J. G. Dawson, Aquinas, Selected Political Writings. Oxford, 1948.
* Sec de Civitate Dei, iv, 27.

THE DEVELOPMENT IN ST THOMAS
94
profane, which overspread the thirteenth century. Rome
appeared to be set on the summit of the Western World and to
possess the substance of monocratic power; in fact the political
centre of gravity was moving north-west. St Thomas was in no
doubt about the religious primacy of the successor of St Peter,1
but the Dominicans generally were not ranged with such
writers as Augustinus Triumphus of Ancona, the uncompromis­
ing spokesman for direct papal jurisdiction in secular matters.12
His formative years and the final period of his mature thought
were spent in the different political atmosphere of Paris and
the domaine royale. There the soaring architecture reflected
the new social scholasticism, and men translated their national
pride into resistance to the idea of a single overlord in Christen­
dom whether he were called Pope or Emperor.3
The political theory which can be composed from his writings
is like his discourse on other topics—the dialectic doubles back,
the advance is not straight and steady. Yet an advance can be
detected : as his knowledge of Aristotle deepened so his account
of political prudence and the reasonable ideal of citizenship
became more technically assured. While he did not rule out
what may be called the romantic and perhaps the wilder
strains in human behaviour, his respect for political authority
grew, and the face he turned to rebellion was bleaker at the
end than at the beginning of his career. At the same time—heir
to Abelard who had felt the hostility of legalism to the Gospel
spirit—he brought out the pre-eminence of equity playing
above the letter of the codes and the dignity of man’s vocation
to live beyond the measures of legal justice and political
virtue. His pace and emphasis vary as he sought to resolve the
tensions set up when persons live together; apparent inconsis­
tencies can be corrected by fuller explication, not by rejection
of one side or the other.
He taught for about twenty years, from 1252 when he
received the degree of Bachelor of Theology at Paris, until his
death in 1274 on his way from Naples to attend the Oecu­
menical Council of Lyons. His writing career falls into three

1 2a-2ac. I, 10. xi, 2, ad 3. Disputations, X de Potentia, 4, ad 13.
2 Summa de Potes Iale Ecclesiastica ad loanstem XXII.
3 L. Réau. L'art gothique en France, p. 11. Paris, «945.

THE GROWING ARISTOTE LEANISM

95

periods. First, seven years at Paris (1252-9) when, of the works
which interest us, he composed his Commentary on the Sentences of
Peter Lombard, the tract Contra Impugnantes Dei Cultum, against
the opponents of the new religious Orders, and the Com­
mentary on St Matthew’s Gospel; he also began the Contra
Gentes. Second, nine years in Italy at the Papal Court which
travelled between Viterbo, Orvieto, and Anagni (1259-68);
there he met William of Moerbckc and started his series of
commentaries on Aristotle with the treatise on natural and
metaphysical philosophy. The unfinished treatise de Regimine
Principum was started and the first part of the Summa Theologica
completed; he declined the Archbishopric of Naples. Third,
the final six years of his life, when, to counter the threat of
Latin Averroism, he was recalled to teach in Paris (1268-72),
and then afterwards was charged with the organization of
Dominican studies at Naples (1272-3). Here in the same
community was a familiar friend, Ptolemy of Lucca, ten years
younger than himself, who was to finish the de Regime Prindpum,
and die at the age of 90 having witnessed the new lay concepts
of political power being put into practice. The second part of
the Summa Theologica on moral science (1269-72), the commen­
taries on the Ethics, the beginning of the Politics (1269-73), and
the Epistle to the Romans (1272-3) belong to this final period.1
From his student days he was acquainted with the Ethics and
drew on it for his first systematic work, the commentary on the
Sentences. He came to know the Politics from about 1260. He
began commentaries on both towards the end of his life when
he was writing the second part of the Summa Theologica. Although
their social teaching, notably their insistence on the naturalness
of political authority and the virtues of political association,
differed from Augustinism no dramatic caesura fell in the run
of his argument, and he continued to quote St Augustine for
support.2 The impression is left that he was an Aristotclcan
’ Chronology according to A. Walz. ‘Thomas d’Aquin : Ecrite.’ DTC, xv, 1,
635-41. Paris> «946·
B. Schmeidler. Die Aimalen des Tholomcus v. Lucca. Monumenta Germaniae
Historica: Scriptorcs Rerum Germanicarum. Nova Series, viii. Berlin, 1930.
8 E. Gilson. ‘Pourquoi saint Thomas a critiqué saint Augustin.’ AHDL. i, pp.
5-! 27. Paris, 1926-7.

96

THE DEVELOPMENT IN ST THOMAS

before he came to study the texts, and then found himself so
much at ease with what he read that he could fill out the
meaning; on occasion his intellectual sympathy could supply
for the deficiencies of his scholarship or of the faulty translation
in front of him.
He opened easily enough in his Commentary on the Sentences
(1254-6) by mingling Apostolic counsels and Stoic sentiments
in the style of his theological predecessors: the kingdoms of the
earth pass away, yet rulers and magistrates were owed a duty
of respect and obedience. All the same a difference was already
betraying itself: this world was not so shadowy and shifty that
our minds and wills cannot find a firm purchase there. It
contained truths and fundamental rights. It was a proper scene
for scientific certitude and for virtuous conduct. Hence he
recognized a moral power within secular authority, which can
bind non tantum temporaliter sed etiam spiritualiter ut Apostolus dicit
ad Romanos xiii}1 he produced a rudimentary sketch of political
prudence—the trained ability of governing the community—
which was to be redrawn in the Summa Theologica} he quoted
freely from the Ethics.2 Despite this the work as a whole be­
longed to the old theological tradition. Aims and objects were
presented as descending from above the visible world, and the
true community was the Church in which human persons
commune with God, the angels and the saints.
Presently the difference grew more pronounced as his sense
of the earthly community increased. The echoes of Neo­
Platonism fell fainter, the notes of Aristotclcanism rang clearer.
The far exemplars seemed to close in and become present ends.
Men acted not only for a distant duty but for well-being here
and now. The result was to accentuate the opposition between
this world and the next. Thus, the Contra Gentes praised human
nobility surpassing community-service, and then in the next
chapter acquiesced without protest to slavery as an inevitable
consequence of group-life.3
Similarly, the Summa Theologica extolled the virtues that
spurn all earthly and political considerations, and then went on
1II Sentences, XLIV, ii, 2.
* III Sentences, XXXIII, iii, i, 4a. XXXVI, i, j. 2a-2ae. I, I. 2.
*111 Contra Gentes, 80,8t. Sec 2a-2ae. civ, 6, ad 1.

BETWEEN AUGUSTINISM AND AVERROISM

97

to put the good life under the sway of civic and legal justice.1
In one place he wrote of the heroism of the solitary life, in
another of its monstrousness.2 These points give some indication
of the stresses to which his social and political dialectic was
subject. This much may be ventured by way of simplification,
that he began by bringing out the traditional dignity of persons
against the threat of tyranny and ended by presenting an
Aristoteleanism so mature and charged with Christianity that
the power of the political community could be concentrated
without danger of regimenting people like units in a mass.
He was fighting on two fronts: on one he took the offensive
against a new rationalism, on the other he held a defensive
position against an old obscurantism—the term is not altogether
fair. He attacked the Latin Averroists and was attacked by the
Augustinian theologians who granted no free field to reason
and, occupied with noble essences, were spiritually fastidious
about plunging the mind in matter. No doubt some of these
were heresy-hunters, but others were no prescribes of scholar­
ship; men like Robert Kilwardby and John Peckham were no
less speculative than he was, and rather better versed in the
natural sciences.
How common cause could have been joined from these
opposite camps may be suggested by the reflection that a
believer who allows that strictly rational conclusions can be
elaborated contrary to faith may well find himself in partial
agreement with the believer who has no use for pure philosophy
and occupies himself solely with a religious philosophy based on
faith and experience of the Christian fact: in their different
ways both suppose that split between faith and rational science
which St Thomas deprecated. Somewhat after the same
fashion, a statesman who followed Machiavelli might easily
adopt Traditionalism as a practical stand: thus some of the
nineteenth-century publicists for Throne and Altar dismissed
Rationalism together with the French Revolution and sought
the foundations of social stability in a religion to which they did
not subscribe.
1 ia-2ac. Ixi. 5. 2a-2ac. Iviii, 5. (ia-2ac. xxi, 4, ad 3 may also be contrasted with
2a-2ae. Ixv, 1).
’ 2a-2ac. clxxxviii, 8.1 Politics, lect. 1.

98

THE DEVELOPMENT IN ST THOMAS

The opposition of the conservative theologians to St Thomas
did not come to a head until after his death. They esteemed his
character but objected to his views as earthbound. Did he not
reject the idealism of divine illumination for an empiricism
derived from the senses, the soul as spirit for the soul as sub­
stantial form of body, the dominance of faith for the autonomy
of reason? These are psychologico-theological questions, and
their social and political implications were not yet drawn out
and debated. Other signs of his innovating spirit also appeared.
For instance, was he not sacrificing the sturdy temper of
freedom by tightening the discipline of the political community ?
The Summa Theologica was less prepared to resist trespass by
the ruler than the Commentary on the Sentences was, and much less
than John of Salisbury who put a tyrant under the ban of the
law. There was a paradox here, for St Thomas had learnt from
Aristotle the distinction between the jus politicum observed by
equals among themselves and the jus dominatioum and paternum
exercised over dependents and that the first was more excellent,
being justice pure and simple.1 One might have expected a
ruler to have been more subject to restraint in the polity of the
thirteenth century than in the paternalism of the twelfth. This,
however, is to leave out of account the diminishing force of
custom due to the growing acceptance of the principle that
the monarch is more than the people’s vicar but a personified
power who motu proprio can make laws. He did not favour
these tendencies, rather the reverse, nevertheless they were
in the logic of part of his thought, and as his Aristoteleanism
developed so he favoured a closer political integration and the
ruler’s elevation above popular whim. The bonum commune was
godlike and far transcended the communitas domestica. Men while
still on earth were citizens of no mean city. The State was an
institution more august than any mere combination against
crime. The enhancement of its authority inevitably followed
from such convictions.
We were not made to live as solitaries, he remarked, and only
a strange grace made us such; by nature, that is by God, wc
arc social and political animals. Qyod quidem naturalis necessitas
declarat.2 St Albert, characteristically blunter, declared that the
1 Politics, V, 10. 1134 b 8. St Thomas, lut. 11.
* de Regimbu Principum, i, i.

BENIGN WORLDLINESS

99
good life was for a man who lived by himself, the better for a
man who lived in his family, the best for a man who lived in his
city or political community. A lonely man, Moerbeke remarked,
was the affectator belli denounced by Homer—‘clanless and lawless
and hearthless is he’.1 St Thomas, however, remained sensitive
to those supernatural virtues which did not directly and mani­
festly advance social welfare; they enhanced man in the indi­
vidual, not man in the mass. Whereas St Albert took Diogenes
the Cynic as his example of the recluse, he preferred St John
the Baptist and St Anthony the Hermit. Despite his insistence
on the claims of the community and the texts alleged by
supporters of the Corporative State between the World Wars
to prove him no liberal, he was concerned to emancipate
persons from subjection to any human group or scheme, and his
general social argument mounted to the teaching of the last
two tracts in defence of the friars, de Perfectione vitae spiritualis
(1269) and contra Retrahentes a religione (1270), that the con­
templative life was superior to any career of administrative or
productive usefulness.
He recognized, more so than his predecessors, the value and
soundness of created things, God-given and inherent. The world
might go on for ever—our reason could not tell us to the
contrary. Human nature was not completely corrupted by sin—
id quod est naturale totaliter perdi non potest. Moral activity revolved
round certain enduring types and could be classified apart
from the circumstances and personal motives which provided
their special but passing individual interest.2 His metaphysical
theology extended and deepened the dependence of creatures
on God; the first and creative cause was not just one factor
which originated a process but was the sustaining ground and
mover of the whole reality produced. Everything shivers on the
brink of extinction but for divine power and mercy, yet God
cherishes all the things he has made and by him they are real
in themselves.1 St Thomas wrote like a man quite at home in
1 Politics, i, 2. Ethics, x, 10. 1180a 28. Odyssey ix, 114 was also quoted by Plato,
Laws, iii, 680 B. St Thomas I Politics, Lat. 1, 2. Sec X Ethics, Leet. 10, 15 St
Albert, I Politics, cap. i.
• la. xlvi, I, 2. Oftusc. xxv. de Aeternitate Mundi contra murmurantes (1270). ia-2ac.
Ixxxv, I, 2. 2a-2ae. Ixxvi, I. ta-2ac. xviii, I, 2.
T. Deman. Aux origines de la théologie morale. Montreal, 1951.

100

THE DEVELOPMENT IN ST THOMAS

his surroundings as he found them; in accepting them we could
not be too natural or in explaining them too rational. He was
no ethical formalist who divorced right from good, or ought
from can, or even, one may say, duty from pleasure. Deus
impossibilia non jubet, said St Augustine.2 And St Thomas would
have spoken more strictly of potentiality rather than possibility,
for, at a level more profound than that of miraculous inter­
vention in a local scheme of reference, he never thought of
omnipotence doing violence to the tilings it creates.
Of two typical Christian approaches to social problems, one
takes the order of natural justice perceived in this world and
trusts to good sense, since sin has not radically corrupted the
human faculty of legislating; the other is more apocalyptic
and certain of the vanity of everything apart from the revelation
and grace of God. The difference between the Latin Catholic
and the German Protestant outlooks which appears at oecu­
menical congresses is deep-rooted in theology; its historical
consequences, which allow of no simple contrast, have been
unexpected, for if, in fact, Protestant regions have offered more
for the economist to admire, Catholic regions have offered less
for the medical psychologist to deplore—success may be
variously judged, and the test of making a living is not that of
leading a happy life. It is clear that St Thomas must be ranged
among those who start from this world and never arrive at the
need for vilifying it.
His effect on the mentality of his own Order was perhaps
deeper than that of its founder. Aristotle was not reckoned a
Christian author, and the early Dominican authorities were
guarded about welcoming him and legislated to keep profane
knowledge within bounds; that was to be changed. Whereas
St Albert grumbled at the obstructions to the study of natural
philosophy put up by his brethren, St Thomas passed them by,
and wrote in the manner of one taking it for granted that any
topic of human interest should be studied, and that without
detriment to theology. His was the confidence of a contempla­
tive mind seeing truth everywhere, of an aristocratic temper
not easily put out. It was not unjustified by his surroundings.
1 J a. xlv. i, 2, 3. xlvi. 3, ad 2.
* dt Natura ti Gratia, 43. PL xliv, 271.

THE HIGH MIDDLE AGES

IOI

Individual life might be brief and bloody, his family from
the border between Pope and Hohenstaufcn was rent between
divided loyalties and his own kin were killed when Charles of
Anjou was establishing himself in Naples; all the same there
were reasons to be sanguine. The joy of the world was sung by
an Easter Sequence of the time—
merula, monedula, cuncta volucria,
saecula futura canunt aurea.
Manichaeism had been mastered, and the evangelical move­
ment canalized in the friars; the Crusades were not yet a
hopeless cause; Orthodox and Romans, despite the shock of
the sack of Constantinople, were at least in communication;
papal schisms and the Black Death had not brought decay. In
England, soon to be ruled by Edward I, the Common Law was
being formed; in France the king and fount of courtesy was St
Louis who dispensed justice under an oak-tree and helped his
subjects to heaven while striving to give them a good life now;
in Germany the choir of Cologne and the west front of Strass­
burg testified to St Albert’s versatile genius. Cathedrals,
monasteries, parish churches were being rebuilt; universities
were being founded; political institutions were being con­
structed. Stone was carved in more living shapes, glass glowed
more brightly, painting found less hieratic forms and music
sweeter modes.
The season was late spring and the shape of things, not yet
covered by foliage, could still be seen. The light was gay not
leaden, the climate clear despite the passing overcast of apoca­
lyptic rumour—according to Joachimite prophecy the Eternal
Gospel was expected to dawn in 1260. The Spirituals had not
yet gone queer nor were they dubiously allied with secularists
and positivists; the Children’s Crusade was a memory and the
mass-hysteria of wandering flagellants still in the future. More
than a hundred years separated the religious revivalism of two
Dominicans, Blessed Jordan of Saxony, second Master-General,
and St Vincent Ferrer. How different they were—the first
attracted young men potius humanitate quam severitate, conducted
an inhibited correspondence with Blessed Diana d’Andalo and
after his death in shipwreck off Acre appeared to his friends as
a cheerful apparition ; the second was the Angel of the Judgment
Mt. Angel Abbey library
. St. Benedict, Oregon 97373

102

THE DEVELOPMENT IN ST THOMAS

who excited his hearers to God’s love terrore concussos atque a
terrenis affectibus evulsos.1 By then the autumn had come and the
religious devotion to sadness and death. We must be careful
of simplification however; St Vincent, for instance, was a master
of logical theory and his fame now grows in quarters unmoved
by hell-fire sermons.
The times were unlike those of St Augustine when civiliza­
tion was going down in ruins. Although the Turks were
destroying the Latin principalities in the Levant and had
occupied the hcarthland of the Byzantine Army, the Cuman
Tartars had been repelled and the frontiers of Western Chris­
tianity were being extended to the north-east and south-west.
Cistercians and friars accompanied the soldiers. The land was
reclaimed, great churches were built, schools were opened in
the towns. Iconography shows St Thomas calm and sedate, a
book on his lap, his fingers expository; he is not proclaiming,
denouncing or wringing his hands. He was singularly free
from the homilists’ complaint of living in bad times. Perhaps
he lacked the tragic sense. Both the glory that is to come and
the present mystery of grace were grounded on physical things;
the lowlier they were the better they shadowed divine light.12
He really did hold that matter was real.
Pagan rulers possessed valid authority to govern Christians
because the divine law, which is from revelation, did not
abolish the human law, which is from natural reason; both
mutually sustained one another according to the principle
that grace perfected nature3 He wrote nothing to support those
chaplains who advised their lords on crusade that there was no
duty of keeping faith with infidels. The divine exemplars were
not only ideal types, high in the heavenly places, separate and
remote from the world; they were present ends which entered
into and shaped human activity. We were surrounded by real
objects, to be respected and served for themselves and not
merely as occasions for reaching out to something else; in
1 M. Aron. St Dominic's Successor. London, 1955.
B. Altancr. Jordans con Saehsen, Die Briffe. Leipzig, 1925.
2nd Nocturn Lessons. Dominican Breviary, 15 February and 5 April.
2 ia. i, 9, ad 3.
8 2a-2ac. x, 10.
ia. i, 8, ad 2. ii, 2, ad i. 4xii, 7. ia-2ae. x, 4. de Trinitate, ii, 3.

UNCENSORIOUSNESS

103

particular the political community was endowed with true
rights which depended on no supernatural intervention and
deserved virtuous service apart from ecclesiastical command.
This acceptance of present reality countered a contemptus
mundi, peevish or merely trite. His sympathy for living purposes
coursing through physical processes and his insistence on the
presence of sensibility in natural science and of individual
appreciation in moral conclusions forbade a rigid grid being
set on the social group. No Aristotelean philosopher could then
be committed to an artificial scheme, an academic version of a
medievalised Roman system, however august its genesis or
successful its vogue. The Dominican Church at Bologna, where
St Dominic lay buried, served as the headquarters of the
jurists; there St Thomas attended a General Chapter of his
Order, but his spirit was easier than theirs, and his jurisprudence
closer to the humanism of Placentinus—‘the only poet among
the Glossators’, remarks Kantorowicz1—who had emigrated to
France weary of the unbending orthodoxy of the Italians.
He did not resent present earthiness, economic considerations
or enlightened self-interest in morality, nor did he condemn the
profit-motive. He made no apology for taking men as he found
them. Private property meant the dignity of personal responsi­
bility in administration, therefore to be advocated; exclusive
enjoyment was an abuse, and therefore to be censured, for all
should share in the fruits of the earth. Like Aristotle he was
suspicious of short-cuts to Utopia, and agreed with the criticism
that Communism was a specious benevolence, doctrinaire and
indifferent to actual experience.2 Repeatedly he insisted that a
lively prudence should point and particularize the judgments
of moral science, since these by their very generalization were
too sweeping to fit unique individual cases. Social stability
demanded that laws should be constant and not too easily
repealed ; on the other hand justice should not lay down a flat
and unvarying ought.
A cleric gentle and generous about lay values, he was a man
of Paris, not of Bologna.3 The artists mourned His death, and
1 Glossators, p. 203.
* Politics, ii, 5. 1263b, 1264a. St Thomas, led. 4, 5.
* For a comparison of the two universities, see Rashdall, Medieval Universities, i, pp.
136-7. 262-4.
9

104

THE DEVELOPMENT IN ST THOMAS

Sigcr of Brabant offered no mere conventional gesture of
condolence to the Dominicans—possibly controversy had
brought the two men closer together. Dante placed them
together in the Paradiso. Both attempted to open up a field where
reason could operate without interference from outside or
senility to superior orders. What St Thomas strenuously
opposed was the Double-Truth theory, that faith and reason
could contradict one another without cither being the worse;
instead he pressed for a greater effort of penetration into the
processes of each and of elaboration of their common analogies.
An ethical doctrine which issued from the study of Aristotle
could be studied in abstraction from the supernatural. The
difference lay in the nature of the abstraction. The system of
the Latin Averroists could be represented as none of the
Christian theologian’s business: it could be alleged to respond
to a concrete historical situation, namely the self-sufficient,
self-governing civil community, and therefore might be devel­
oped apart from the rules of the Christian revelation. To the
Thomists, however, the City was but one formal interest to be
developed in harmony with many others. Their line of thought,
the middle way between the extremes of political Avcrroism
and political Augustinism, stretched through Godfrey of
Fontaines, Giles of Rome, Ptolemy of Lucca, John of Paris,
and Remigio di Girolami. It influenced writers such as Nicholas
Trivet and Walter Burley, but not the men who shaped affairs.1
Simplifications usually score the political success, and in the
event the Averroists won, for the Augustinists were driven from
one position after another until they played no more part
in policy than Liberals in the age of Communism and Fascism.
The Canonists had been their corps d'élite and when they were
relegated to household duties within the Church secularism
ceased to be disputed on the field of State.
The political theory of the early Latin Averroists, as already
observed, can only be guessed at from the few texts which
* G. de Lagarde. ‘La Philosophic sociale d'Henri de Gand et Godefroid de
Fontaines.’ AHDL. XIV, pp. 73-142. Paris, 19-13-5.
Conor Martin. The Commentaries on the Politics of Aristotle in the late thirteenth and
early fourteenth centuries, uith reference to the thought and political life of the time.
Bodleian MS. D.Phil. c. 211. Oxford, 1949.

SECULARISM

IO5

remain to us.1 It is possible to read back into them the idea of a
City of Reason apart from Christendom, a humana civilitas not
amenable to revealed religion, less preoccupied with rewards
hereafter than with the proper conduct of affairs here and now.
Yet no evidence is forthcoming that the supporters of the
doctrine of the single intellectus agens in fact advocated an over­
mastering State, or would lose the individual in the network of
universal ideas. The play of ideas is less simple and consistent
in history than in logical debate. In any case there seems to
have been an ironical quality about the character of Siger and
his friends, and about the invidiosi veri they argued, almost as
though they were frondeurs with no stomach for a centralizing
absolutism.12
The ecclesiastical prohibitions against philosophers dabbling
in divinity probably widened the gap between reason and
faith. The Faculties of Arts, now in possession of rich new
material from Aristotle, could claim immunity so long as they
made no theological pronouncements—perhaps the Double­
Truth theory was more tactical than doctrinal, an attempt to
seize an advantage, so that henceforward moral and political
philosophy could be studied in isolation from the customary
precepts of Christianity and the teachings of the theological
moralists and canonists.3
The civil lawyers hastened the process. Indeed, lay control of
the State was the work less of philosophers basing themselves
on Aristotle’s Politics than of legal scholastics developing the
Roman Law. Both combined to establish the condition of a
State which acknowledged no authority but its own, and where
policies and laws could proceed without reference to ecclesias­
tical authority. Even in Venice, that città apostolica e santa, the
Inquisition was admitted but reluctantly, and then on condi­
tion that it was supervised by three citizens of the Republic. In
1 F. Stegmüller has edited a text which refer» to the common good. ‘Consequenter
quaeritur utrum aliquis possit magis amare alium quam seipsum.* RTAM,
iii, pp. 158-82. Louvain, 1931.
R. A. Gaulthier. ‘Troi» commentaire» avérroiste» sur l’Ethique à Nicomaque.
AI1DL, xvi. Paris, 1947-8.
’ Dante. Paradiso, x, 133-8.
3 G. de Lagarde. Naissance de l'esprit talque au dâlin du moyen âge. iii, p. 46.

Ιθ6

THE DEVELOPMENT IN ST THOMAS

practice the silencing of the Church meant the silencing of
religion. A purely secular social morality proved unable to
stand on its own and Natural Law sentiments were to persist,
and so were those of Christianity. All the same, when Machia­
velli separated diplomacy and the mechanics of government
from morals he split apart what had been cracked already two
centuries before, and so prepared for the positivism of modern
times. Before long the State was conceived as the organization
of human wills for social ends about which revealed religion
and personal morals could have no say. The vein of State
policy was worked apart from other values, and Staatsrilson
came to exist for its own sake as a sufficient guide for action.1
Similarly human law sought no outside justification, and was
presented as what in fact had been enacted and what in fact
will be enforced.
1 F. Mcineckc. Machiazeilism: The Doctrine of Raison d’Etat and its Place in Modern
History. Tr. D. Scott. London, 1957.

THE ADVANCE FROM THE THEOLOGIANS

o the extent that they determine the complexion and
features of a community, political science is the study of
the agreements and institutions of men living together,
and of their laws, natural, customary and enacted.1 This was
especially true in the Middle Ages. In order to discover the
social teaching of the theologians we must turn to their treatises
on law. It will not surprise us if, by comparison with the jurists,
we find them concerned less with the processes of legislation
and more with the nature and underlying principles of law
itself.
The Greeks cast forward to the purpose of political authority
without dwelling on its legal titles; they required that it should
serve the good life, and applied this test to the successive types
of government under which they lived. The Romans, however,
looked back to the origins of authority; they conceived the
common good juridically as the public good. The questions
arose, Where did power reside? and, By what right was it
claimed ? The philosophically-minded spoke of a pact entered
into by the people on the grounds of ordered security, the
legists translated that into a transference of power from the
people to the prince. The academic cast of mind in the Middle
Ages was more Roman than Greek, hence the theologians
conducted their examination in terms rather of legal and
religious rights than of biological design.
Influenced partly by the concepts of a juridical philosophy
to which no res (Mica was possible without legal bonds, and
which defined the people as the coming together of a consider­
able number of men who were united by a common agreement
about rights and duties as well as the desire to participate in
mutual advantages, and partly by the concepts of a religious
philosophy which saw the whole universe ruled by the divine
order revealed in the Scriptures, the medieval theologians were
convinced that no just secular power existed which had not

T

1 W. S. Holdsworth. A History of English Law, iv, p. 233. London, 192.}.
IO7

Ιθ8

THE ADVANCE

FROM THE THEOLOGIANS

been constituted by law, and that there is no law except from
God.’ Law is null, said John of Salisbury, when it docs not
bear the image of divine law.12
To their way of thinking law was much wider in scope than
the civil law of the State, and by law they meant not just a
claim on our emotions or our ‘moral sense’ but a rational
command inducing a real obligation. This fact should be
remembered ; at the same time we must allow for an ambiguity
of usage. Whereas legists sought for an historic pronouncement,
moralists thought of a law present and operative before political
institutions were devised and civil laws enacted. Both could
claim obedience only in virtue of their emanation from or
dependence on anterior divine precepts. The theologians
described the moral conditions of just authority, and much
farther than this they did not go. If some of them looked for a
divine deed of grant and expected to discover the title to
political power among Church documents either from the
Scriptures or from Christian tradition, most of them did not
inquire into the supposed historico-lcgal act which constituted
sovereignty.
Here there was little advance in doctrine during St Thomas’s
lifetime. He underlined the moral requirements for the acqui­
sition and exercise of power without which the ruler is an
usurper who cannot command the obedience of Christian men;
he set the State—and for that matter the Church as a juridical
institution—under the Eternal and Natural Law; he encouraged
no theory of a power able to maintain itself legally apart from
the moral order. Yet, as will be seen in the next chapter, he
would not thereby have all laws and political decisions drawn
by logical inference from the precepts of social ethics.
The Natural Law in those days did not carry its eighteenth­
century sense, namely the rational order consonant to man in a
state of pure nature without the accretions of convention and
superstition; nor was it a kind of super-system set above the
1 Populus est coelus mulliludinis juris consensu el utilitatis communione sociatus. Cicero, de
Re Publica, i, 25. Trans. G. H. Sabine and S. B. Smith. On the Commonwealth:
Marcus Tullius Cicero. Columbus, 1929.
Quoted ia-2ac. Iv, 2 from de Civitate Dei ii, 21. De Re Publica was not named as a
source.
2 Policraticus, iv, 6.

NATURAL AND SUPERNATURAL

log

provincial bodies of civil law. By the thirteenth century men
had learnt from Aristotle and contrasted the naturale, a thing’s
movement from within called the voluntarium in the case of
activity aware of its goal, with the violentum or the artificiale, a
movement imposed from without in which the subject did not
co-operate. The contrast was developed when Natural Law,
divinely implanted in us, was compared with Positive Law—
whether civilian or canonical—which we ourselves constructed.
Now thoughtful theologians never had thought of the Gospel
Law as an artificial code. Its rhythms were developed from the
impulses of our deepest being. It was Natural Law taken to
the heights. Yet not until the Summa Theologica was written
were the harmonies found. For if we picture horizontal levels
or strata when we adopt the term supernatural, then of course
the laws of grace move in a region higher than those of nature.
Whereas if we take a vertical system of reference for the
ascending motion of men from their lowliest beginnings to
their highest perfection and apply supernatural to the laws of
grace, then we run the risk of making them preternatural, non­
natural, and, by a fallacious slip, unnatural. Hagiography and
the literature of conversion dramatically heighten the theme of
the violence offered to nature by grace. They belong to indi­
vidual psychology but may well be extended into social psycho­
logy by a system of external regulations, penitential and other­
wise. Grace may then be made to appear against the grain;
religion may be delivered bound up with protocol. The effect
may be heroic or merely mannered, yet on a point of theology
the effect of force, strain and violent invasion, the idea that God
has to break before he can make, should be subordinated to the
classical teaching that grace, although beyond our ability and
merit to acquire, is connatural to us in its mode of activity.
Corresponding to these horizontal and vertical lines in our
illustration, nature was also taken in two senses. One was Latin,
and signified a tiling’s due position, stage, or status in an
ordered scheme; the other was Greek, and signified rather the
immanent purpose springing from within a thing and reaching
out to its highest proper goal. When the two were confused
then what was supernatural with respect to the first tended to
be taken as unnatural with respect to the second. Similarly,

no

THE ADVANCE

FROM THE THEOLOGIANS

when the civilized was contrasted with our primitive condition
the suggestion followed that a certain artificiality was a condi­
tion of good society. This could cloak a subtle and complicated
sort of violence, as though true civilization did not make for
simplicity and case of manner.
St Thomas was ahead of contemporary theologians when he
perceived that it was the business of rulers and lawyers, not
directly of moralists, to enact positive laws and to determine
their significance.1 He voiced the change taking place in the
legislative functions of the State, for as the administration grew
more constructive so it was found that the new laws which had
to be made could no longer be described merely as restate­
ments of old customs. They were decided more by future
political advantage than by past habits—at least that was the
drift, and eventually, as we read in Burke, long established
natural rights discovered empirically in a continuous social
tradition were to be upset by a theory of doctrinaire politics,
and the French Revolution turned its back on dead French­
men.1
2 Already an act of princely will was being substituted
for consultation with the people and their consent. Afterwards
as law grew more technical so the study of it concentrated
more on the details without reference to wider values.
Such is the logic of specialism. Aristotle had noted the saying
of Gorgias of Leontini that citizenship in Larissa depended on
the act of the magistrates or citizen-makers; this, commented
St Thomas, was merely a statement of fact which provided no
explanation.3 A subaltern science can furnish no reason for
its premisses. These it can accept only from a higher science.
Legal science is no exception. Left to itself it cannot go much
farther than defining crime merely as what will in fact be
punished, and punishment merely as what will in fact be
imposed for crime.
There was no sudden break with the past in this trend
towards legal positivism in both Church and State. For that in
effect was going on. Once it was recognized that Positive Law
1 O. Lottin. La morale naturelle et la loi positive d'après saint Thomas. Louvain, 1920.
* C. Parkin. The Moral Basis of Burke’s Political Thought. Cambridge, 1957.
3 Politics, iii, 1. 1275 b 27. St Thomas, lect. 1.

LAW FROM MYSTERY

111

could not be wholly evaluated by moral premisses it was
bound to keep pace with an artificial technique for creating
laws which slowly displaced the method of adapting old
customs to meet new situations. Nevertheless all through the
Middle Ages, and beyond, to the Spanish Scholasticism of the
early Baroque and to the high Whig period, edicts which
hampered men’s moral and religious duties were not reputed
to be laws at all. In other words, they were checked by standards
outside the province of specialist lawyers.
Law in Nature
Lawfulness, then, represented an idea more far-reaching in
medieval than in modern times; it stretched back to a primeval
rightness in things and forward to justification through grace.
Like the human mind itself as pictured by psychologists of the
Unconscious, it could be compared to an iceberg most of which
is underwater and out of sight. The political and legal shapes
of conduct appearing above the surface of consciousness and
deliberation were configured to a theological understructurc;
beneath lay a mystery apprehended only in the darkness of
religious faith. The Roman Law itself, the classical monument
of Empire and the rational instrument of public order, had its
origins in the hearth and home; below the property pre­
occupations were the rites, sacred and nocturnal, which were to
the lucid forms of its later structure what falling in love was to
the conventionalized concept of Roman amicitia.1
Ends as well as origins determined the organization, which
contained its own purposes even less completely than it articu­
lated all its material. Beyond this world rose another, and this,
to which we were bidden by the moral precepts, was not
contained within the visible structure of legality but overspread
it from above. Cardinal Manning observed that all controver­
sies were ultimately theological—even the denial that religion
has anything to say was at bottom a theological statement.
Our views on politics should be resolved by what we think
men are and what they are for. And so political theories are
largely our answers to questions about the nature and limits of
i.

1 See C. W. Westrup. Introduction to Early Roman Lazo. Comparative Sociological
Studies: The Patriarchal Joint Family. 5 vols. Copenhagen-London, 1934-54.

I 12

LAW IN NATURE

the laws binding us together. Unless we grasp this our actual
policies will be fumbling, for opportunism no more supplies
for lack of principle than appeasement for not being provided
with defensive and offensive plans together with the means of
carrying them out.
Theoretic doctrine is implicit in most acts of State, and
perhaps nowhere more forcibly than in Great Britain, where some
principles of domestic and foreign policy and some social
convictions are so firmly embedded in the instinctive layers of
community-life and so taken for granted that they are scarcely
talked about. It is difficult to overestimate the importance of
extra-political factors: without them Alfred could not have
restored Wessex, nor this country fought back after Dunkirk.
They are necessary not only for national survival but also for
the smooth running of the State. The acceptance of a law
presupposes a sense of social obligation. A government’s chief
need is to be trusted. Even a contractual theory of the State
fails if it forgets that contracts are binding only by virtue of
the moral duty of keeping promises, which duty does not itself
derive from contract. Public efficiency relies on motives of
emotional, moral or religious colour. Cicero’s saying, funda­
mentum justitiae est fidesy faithfulness is the basis ofjustice, which
anticipated Locke’s notion of trust, was quoted with approval
by Vincent of Beauvais.1 In short, political and legal action
alone cannot create the social impulses which are the conditions
of its success.
St Thomas manifestly respected legality and on occasion
showed himself well versed in a juridical medium. His interest,
however, lay in the living social principles behind law, not in
technical expertise; his thought was not built into the archi­
tecture of the Roman Law, but dwelt outside and looked to it
merely for a convenient reference. He noted some points at
which theology touched it, and occasionally developed a legal
notion particularly on questions of Church order. For the rest,
however, the Summa Theologica could have been composed had
Accursius or Gratian never written, even perhaps had the
Glossators and Canonists never made much stir. At a time
when St Raymond of Pennafort’s Summa Casuum and the
1 Speculum Doctrinale, iv, 30.

BIOS AND LOGOS

ΙΙβ

alphabetical repertory of Monaldus were selling the fashion of
drawing theology into canon law, he preferred to settle an
issue by the inherent evidence and not by an appeal to an official
or semi-official ruling. He was a contemporary of Accursius
and Hosticnsis, yet it is surprising how sparing was the use of
formal law in his argumentation. There was no hint at all that
the lawyers were going to dominate the following generations at
the expense of philosophers and theologians.
Legalism and rationalism are similar for liking their concepts
sharp, tidy and dispassionate. He shared the taste, yet kept
the continuity between the impulses rising from the racial
and cultural group which are at work in the making of law
and the intellectual content of its formulation. This closeness of
the material and the formal ran through his whole philosophy,
particularly in his psychology of man as one single substance
composed of body and spirit. His theory of knowledge saw no
deep gulf between the physical and the mental; material
existence was given the authentic kick of reality.1 The same
conviction came out in his social doctrine which recognized
that physical power might be invested with moral right; in
other words, that virtue might use force, as in war and
capital punishment. Naturalis ratio was set in the flow of events
as well as in intellectual patterns. The antithesis of Bios and
Logos was not laboured. The Stoics had identified natura with
ratio, but for St Thomas this ratio or meaning was an actor not
a spectator, a shaping purpose not just a logical essence.2
Consequently he was more generous in extending the term
natural to all manifestations from within. It included uncon­
scious and animal drives as well as deliberate choices. An
authentic Aristotclcan, he held that the existence and nature of
a thing can be known only by an act of judgment charged with
sense-perception. All living things in this world, men not
excluded, reach to their final ends though physical movement
and passion. Accordingly he did not dichotomize what is
instinctive and what is construed, what is uninhibited and what
is conventional, what is found and what is enacted.
’T. Gilby. Phoenix and Turtle: The Unity of Being and Knowing. London, 1950.
* G. M. Manser. Das f'aturncht in thomistisdur Beleuehiung. Freiburg, 1944.

114

LAW IN NATURE

It is as though his epistemology led him to reject the propter
peccatum position of his predecessors, for the pressures proper to
the earthly level of existence, the contrapassum or give-and-take
of physical forces, the cat and be eaten, the inward organic
changes, the burdens borne because we belonged to this world,
were not in themselves punishments, though sin of course
greatly aggravated the suffering.1 Mechanics could be taken
into morals—the terms were not profoundly opposed—might
into right, this world into the Kingdom of God. He accepted
the fact that power-politics has the last word but one. If the
wicked arc allowed they will do as they like; it is the job of the
virtuous to stop them. Hence just laws must command superior
force. About this he was not at all apologetic. Grace was not
content with denunciation of abuses or with passive resistance
to the powers of this world or with non-cooperation and
pacificism. Physical force was not the ultimate form of persua­
sion, yet its exercise could be an inescapable duty. Material
might by itself was admittedly brutal, but it could be ennobled
by right, and then was not, as Augustinists held, merely excused.
The civilized community was not an arbitrary enclosure
within a wilderness inhabited by forms and ideas, a select
residential area, as it were, away from the slums of matter and
the mob of facts. Surprisingly little pessimism came from St
Thomas or talk about ‘this wicked world’, but instead a note
of benign worldliness hitherto unsounded in theology. Of
course the times were congenial to this liberal temperament.
The tension had relaxed since St Augustine had defended
Christianity when the ‘evidences’ of religion were still pagan :
he yet had the vision to rise above his circumstances, and
apprehended that the things above were better than the things
below, but that both together were better than the tilings
above by themselves.12 Now, however, the general social
assumptions were Christian, orthodox or not, and accepted to
some extent by Moslems and Jews. The Church had assimilated
the world, and theologians in consequence were not so edgy
about it. St Thomas seems genuinely to have liked physical
nature. It was the only basis on which he could think. He
1 Sec sa-aa. Ixi, 4. Ethics, v, 5. 1132 b 21. St 'Diomas, led. 8.
2 de Civitate Dei, xxii, 24.

THE COMMON GROUND

I 115

accepted its conditions, among them that men should mix
together in order to live the good life and observe the conditions
of their material environment.1
Furthermore he held that all departments of knowledge
should respond to experience and to one another. If such
contact be demanded of the theoretic sciences, such as dog­
matic theology and metaphysics, then still more must those
which deal with practical answers to problems of conduct keep
close to the here and now. The moral, political and legal
sciences arc false to themselves if, like a die-hard dreaming of
the good old days, they make imaginary constructions without
reference to current history, psychology, and economics.1
2
Statesmen and lawyers enjoy liberty within the limits of their
business, nevertheless they should be sensitive to the infra-legal
and supra-lcgal demands of social organisms. The State they
serve should not be sealed off from a more universal human
community and society. The Natural Law was neither the
relic of a past Golden Age nor a bare external measure pro­
nounced in a few simple statements, but a driving reason,
supple and manifold, a parlidpatio legis aeternae communicated to
human beings which should run like the ground-bass through
all political and legal activity. Hence political and legal science
should consult theology, as theology should consult psychology,
and psychology biology and physiology, and all should consult
history and one another.
Imprinted on all natural beings, the Eternal Law charged all
their activity with meaning and purpose, and this impressio
activi principii was like the promulgation of a country’s law to the
subjects who are to obey it. The whole universitas rerum was a
commonwealth in which non-rational creatures were gathered
into God’s reason, as our bodily members into ours, though
there was no question of choice in the matter.3*
8As hands can
1 2a-2ae. dxxxviii, 8. Ill Politics, led. 5.
* E. Welty, lorn Sinn und Wert dcr menschlichen Arbeit, aus der Gedankenwelt des hl.
Thomas Aquina. Hcidelburg, 1946.
A. F. Utz. ‘Aushôhlung odcr Dynamik des Eigcntumsbcgriffcs?’ Dicus Thomas,
xxv, pp. 243-54. Fribourg, 1947. Cemeinschafi und Einzelmcnseh, Eine sozialmetaplrjsische Untcrsuchung, bearbeitet nach den Grundsatzen des hl. Thomas von
Aquin. Salzburg, 1935.
8 ia-2ac. xciii, 5, ad 1, 2.

116

LAW IN NATURE

be thoughtful so physical things can be lawful. There in the
Eternal Law, said Bernard Sylvestris, is found whatever the
reason of angels and men can comprehend; there whatever
heaven holds under its wide arches.1 Thus spoke the Nature­
welcoming humanism of Chartres when in the words of the
contemporary lyric,
hiemale tempus vale!
aestas reddit cum laeticia.
For St Thomas the worlds of mind and of matter were
never far apart. By securing the first link in the chain of
law to the material world he was spared the embarrassment of
those divines who could never theoretically reconcile the
application of force and the sway of love.
Their antithesis of Nature and Convention magnified the
results of the Fall. Man’s original case and freedom had gone
and henceforward the law which ruled him was profoundly
penal in effect. They were there to curb his sinful nature,
and though they were imposed by divine decree or by human
will with divine permission, they came to terms with evil
in order to limit its effects. They were concessions to the
reign of force and the rights so created were artificial, prag­
matic and remedial rather than native, noble and valuable in
themselves. Slavery, governmental power of coercion and the
exclusions from ownership implicit in a system of private
property were institutions which prevented anarchy and
guaranteed some stability in social life. All three were grouped
together. Dig into their foundations and you would see that
they were built on past acts of forcible acquisition.
It is true that they had been afterwards validated by pres­
criptive rights, nevertheless the flaw of sin stretched under­
neath. The authority of the State was affected, since Christian
righteousness had not gone into its making. Remota justitia quid
regna nisi magna latrocinia? What was the realm but robbery
writ large?2 Taken out of its context the phrase over-simplifies
St Augustine’s thought and misses his Roman pride. To those,
however, who made a slogan of it, the core of political power
was in a sense unsound. True, Christians owed the duty of
1 de Mundi Universitate, i, 2. Edited C. S. Barach. Innsbruck, 1876.
’ de Civitate Dei, iv, 4.

GAIUS AND ULPIAN

Ιΐγ

obedience and, since the conversion of the West, temporal
power was vested and consecrated with a blessing; all the same
an Augustinian could never quite pay it the reverence possible
from a theologian of the Aristotelcan School.
The relations of natural and positive rights were further
complicated by the prestige of Ulpian, called simply the
Jurist, Jurisconsultus, whose writings composed a third of
Justinian’s Digest. One of his most-quoted texts treated Natural
Law as common to all animals. It ruled instinctive adaptation
to environment, thus the mating of male and female, whereas
human law was a business of deliberate and civilized adjust­
ments.1 This zoological reading was offset by the Stoic doctrine
that law was reason, lex est summa ratio insita in natura, and by
the authority of St Isidore who adapted Gaius and defined
natural law by the test of universal human acceptance, commune
omni nationi, not commune omnibus animalibus. All the same there
were grounds here for an exaggeration of the difference be­
tween primitive nature and cultivated reason, between the wild
and the domesticated, especially if the etymology of nature
from nascitura were emphasised.2
Then also a theological undercurrent of suspicion ran against
nature, whether accepted in a primitively animal or in a
sophisticatcdly rational sense. The distinction between the
natural and supernatural worlds in which men live had not
been refined before religious writers discovered Aristotle. The
conflict between flesh and spirit was equated with the conflict
between nature and grace; the conflict between worldly and
heavenly wisdom was the conflict between reason and faith.
The corruption of the body could be vividly dramatized, that
of the soul was less sensible. The allurements of sin appeared in
secular guise. The dogma of bodily resurrection told the
theologians that flesh could be taken into spirit without being
ethcrealized ; they were less convinced, however, that reason
could be taken into faith and remain reasonable. The Francis­
can and early Dominican masters refused to entertain, even if
they considered, philosophy apart from theology. An exception
might be made for logic, and men like Grosseteste and
1 aa-aac. Ivii, 3.
• ia-2ac. xciv, 4, sed contra. 3a. ii, 1. Etymologies, v, 4. PL Ixxxii, 199.

Il8

LAW IN NATURE

Kilwardby, advancing beyond the findings of the Greeks and
Arabs, ranged over the fields of pure mathematics, natural
philosophy (with particular attention to the nature of light),
scientific method and technology.1
Despite the influence of the schools of literary humanism and
affective theology nourished by devout meditation on the
Scriptures, religious thought was already tending to stiffen into
a Sabbatarianism which the growth of law inevitably aggra­
vated. For a brief period the revival of Aristoteleanism halted
the process and invigorated theology. A divine meaning and
purpose running in and through natural processes was caught
sight of, and law itself was then treated as part of the ascent of
man to God. If Aristotelean Scholasticism presently hardened
into its own sort of formalism, it bequeathed the lesson, never
quite forgotten in theology, that nature should be confidently
accepted and experimentally investigated.
It also averted the danger that the Christian precepts,
because they inculcated conduct surpassing commonsense,
should thereby flout the ordinary decencies—a sort of Léon
Bloy heroism at its best, and, in decay, a system of magical
thinking. They could have been made to appear like so many
articles of positive law, august yet arbitrary, laid on from outside
and above without respect for human nature. From supra­
national to extra-natural is an easy transition, and thence to
artificial. The descent into sub-natural is not unknown. The morals
without religion of a secularist culture can be weighed against
the religion without morals elsewhere. It is a matter of taste
whether you find yourself more at home in Stockholm or in
Dublin, and a matter of debate which is the less admirable.
St Thomas can scarcely be called a Pelagian—indeed during
the controversies on efficacious grace which circled round the
de Auxiliis (1607) his followers were sometimes
accused of being Jansenists—yet he brought nature in no
attenuated sense into theology. He was certainly no Barthian
cither, for, pursuing the implications of Chalcedon, he taught
that as in Christ two real and distinct natures were united in
one person, so for our salvation a divine life was communicated
1 A. C. Crombie. Robert Grosselerte and the Origiru of Experimental Scienee.

UNITY OF HUMAN EXPERIENCE

HQ

through and to human nature.1 Grace was not like a garment.
It was not only imputed for righteousness. It did not obliterate
its natural subject, and its activity, no naked escape from the
conditions of life but a committal to the Christian fellowship,
was a man’s very own.
Indeed he was not given to forced contrasts, either between
body and soul, or between nature and grace, or between the
laws of animal life and those of reason. He did not regard the
material world as if it were a volcano whose rumbling
threatened the architecture of reason and religion erected on
the crust of past eruptions. It was the good earth for God’s
grace. There was a continuatio of the spiritual into the material
and a communicatio between them, an evolutionary surge from
the first to the last day of creation.1
2 Man’s ratio shared in the
ratio of the universe; both derived from the ratio divina. One
single substance operated through all the manifestations of a
human person; all motions from within the organism could be
taken up mind and will, all meanings and volitions fused with
sensibility and feeling. His teaching fits in very well with
modem Gestalt Psychology, which stresses the unity of human
responses to environment and is not misled by laboratory
techniques of separating them into their components: the
spiritual soul is entire throughout the body, and intelligence
should be as much in the heart as affection should be in the
head.3 This applies also to the corporate personality of the
political community.
Law is essentially a condition of communication, and the
forms of expression and methods of signalling—the strokings of
ants’ antennae, the movement of a squirrel’s tail, the jay’s
warning cry in the wood—which fall short of conceptual
signification through speech should be observed with sympathy
by the social moralist. The laws of animal life enter into and
arc transcended by the laws of rational life. The rudimentary
and barbaric are developed into the civilized.4 All in their turn
arc taken up into laws of grace. The organs of reproduction
1 Y. M. J. Congar. Christ, Our Lady and the Church. Tr. H. St John. London, 1956.
* III de Anima, lect. 8. II Contra Gentes, 56, 57. II Sentences, XII, i, 2.
3 J a. Ixxvi, 8. Disputations, de Spiritualibus Creaturis, 4: de Anima, 10.
4 II Politics, lect. 12.

to

120

LAW IN NATURE

and excretion, so close to one another, call for privacy and
delicacy but not for shame, and medical psychologists know
what harm is done by over-fastidious censorship. Hence laws
should not seek to suppress natural instincts or to straitlace
their functions. Even arbitrary conventions, of secondary'
importance to the essential adaptations of men and women, are
primarily means to the enlarging, not the cramping, of human
activity. In processes where there was a mingling of art and
nature, said St Thomas, art operated in the same manner and
through the same means as nature did.1 The artificial became
the congenial, the ‘artistic’ or ‘artful’ treatment of a subject,
the ‘natural stroke’ praised by eighteenth-century writers:
modus artificialis dicitur cui competit materiae.1
2
To such a habit of mind civilization was less imposed from
without than developed from within; conversion to grace was
less a submission than an elevation. St Thomas brought out
how connatural was the inner springiness of grace. It is out
sharing in God’s likeness by a rebirth, a new creation which
destroys only sin and in the end will restore all things in
Christ. For this reason he parted company with Peter Lombard,
who had taught that divine charity was the indwelling Holy
Ghost. On the contrary, its dignity as friendship demanded
that it should be a love which we ourselves elicited.3
His usage was not always consistent in pairing terms.
Spiritual was generally contrasted with material) and, in
questions of social authority, with temporal (which elsewhere
was contrasted with eternal'). Other contrasts were clerical and
lay, ecclesiastical and civil, sacerdotal and regal, sacred and profane,
soul and body, contemplative and active, theoretic and practical,
internal and external, private and public, religious and secular. There
is some overlapping, but care should be taken in shifting from
one pair to another. Religion might mean the ordering of our
whole lives towards God, or the special virtue, a part ofjustice,
which governs divine worship, or the dedicated state of life.4
Switch the categories and his discourse is misreported. Thus, if
1 Disputations, XI de Veritate, i.
* I Sentence, Prologue, i, 5, ad I.
• ia-2ae. ex, I, 4. 2a-2ac. xxiii, 2.
4 2a-2ac. Ixxxi, 4, 8. dxxxvi, 1.

JUS AND LEX

121

you identify spiritual with religious, and then with private. Or
material with civil, and then with natural. Or natural with temporal,
and then with bodily, profane, public. For the due response to
State authority, he held, was from supernatural virtue, while
on the other hand, the Church possessed natural and temporal
claims which you met in the spirit of paying the rates: the
Blessed Thomas of Canterbury demanded the restitution of
Church property even to the scandal of the King.1 He did not
draw the comparison used by Papalists, that the spiritual
power was to the civil power what the sun was to the moon, or
the soul to the body.1
2 The human community was not divided
into two spheres, its body ruled by the human law rising from
the people, its soul by pontifical law descending from God:
such a dualism was not even applied to the individual, for a man
was one thing, not two.
He generally used jus and lex as interchangeable terms, a
hint that legalism should follow the grain of reality and that
continuity between implanted right and enacted law should be
kept. Whereas the jurists generally spoke ofjus naturae and the
theologians of lex naturalis he was inclined to reverse the usage,
preferring lex in his judicial treatise and jus in his theological
treatise on the cardinal virtue ofjustice.3 The point, otherwise
of no great moment, indicated a refusal to separate nature and
art, that is, the fundamental rights we did not ourselves create
and the regulations we framed in order to protect them. He
adopted the two recognized etymologies of lex, a ligando to show
that it constrained, a legendo to show that it was rationally
apprehended.4 Lex was not jus precisely, but in some manner
its rational expression. Jus also was brought into our mental
activity: originally it signified an objective quality and then by
derivation the art which recognized it.5
1 2a-2ae. xliii, 8, sed contra.
1 W. Ullmann. Medieval Papalism, vi. ‘Pope and Emperor’.
* On law, la-2ae. xc-cxiii. On justice, 2a-2ac. Ivii-cxxii.
4 ia-2ac. cv, 2, ad 3.
6 2a-2ae. Ivii, 1, ad 1, 2.
St Isidore (Etymologies, v, 2, 3, 4), better at repeating phrases than relating them,
was not helpful in the matter of terminology. Though he said that jus was
human lex, he seemed to treat jus as a generic term, <>f which lex was a written
enactment. .Mos, or custom approved by antiquity, was unwritten law. Human
law was based on custom, divine law on nature. Divine law was called fas.

122

LAW IN NATURE

He identified the Glossator’s jus with Aristotle’s justum or
dikaion. At the same time he noted a contrast, contrarietas, for
whereas the jurists put jus civile under positive law (which was
set against jus naturale} and so heightened the contrast between
the civil or political on one side and the natural on the other,
the philosophers, with whom he sided, took the justum politicum
or civile to be partly justum naturale and partly justum legale, and
so combined the natural and the legal within the same political
order. There was here a difference of approach, one positivist,
the other teleological. As the theologians looked askance at the
canonists so, lower down in the scale, philosophers were pleased
to put the civil lawyers in their place—a belated come-back
after the closing of the Athenian Schools by Justinian in 529.
The jurists treated laws and institutions as existing social
artefacts, he observed, for they have to keep to facts, and define
the political or civil in terms of the constitution actually in
force. The philosophers, on the other hand, looked rather to
the whole purpose of the organized community in the light of
its natural origins and purposes. They judged how these were
served by social institutions, and so considered the reasons of
law rather than legal terms. They defined the political or civil
by what was beneficial to the citizens, not by what was officially
commended or permitted.
The theory that Natural Law underlaid political association
was strongly in evidence. Political justice was part natural and
part legal; utuntur enim cives et justo eo quod natura menti humanae
indidit et eo quod est positum lege.*
1 In this context the legal was
contrasted with the natural', elsew'here it could bear two other
senses. It was applied to justice, and legal justice then meant
that general justice which, like law itself, served the common
good and was distinct from the particular justice of one
individual towards another.2 It could also mean the legalism or
code-justice which stuck to the letter of the law and was
thereby contrasted with equity.3
Similarly, justice itself, the specific human virtue correspond­
ing to jus and lex, had varying meanings treated precisely in
1 V Ethics, lect. 12 (Ethics v, 7. 1134 b 19).
1 2a-2ac. Iviii, 5. See below, Chapter VII, 3.
• aa-2ac. exx, 2. See below, Chapter VIII, 5.

JUSTICE

I23

the appropriate settings of the Summa Theological On occasion
St Thomas adopted its generic meaning of righteousness, used by
die Scriptures and the Fathers, thus when treating of justitia
originalis, the right state in which human nature was created,
and of the justification of the sinner.12 He also admitted the
related sense it had for Plato, Cicero and Macrobius, namely,
that poise and adjustment in social comportment on every
occasion which was a general condition of all virtue.3 So by
analogy he spoke of God’s justice.4 Normally, however, he
kept to its narrow sense, which signified the moral virtue,
specifically distinct from the others, which paid what was
owing and established the right balance in external affairs.
The spirit of fairness and plain dealing discovered in the
Ethics, was linked with Ulpian’s celebrated definition, that
justice is the lasting and unwavering will of rendering each man
his due, perpetua et constans voluntas jus suum unicuique tribuendi.
*
Characteristically he combined the Latin and Greek concepts,
for jw was given its Roman meaning of objective right set forth
by law, and voluntas was interpreted according to Aristotle’s
psychologico-moral teaching on the virtues. Virtue was a settled
quality which made the possessor good in himself and in what
he did. There was nothing stilted about it, for good here meant
more than the state of being acceptable to the legislator or of
being on the safe side of the law. It was not merely imputed
righteousness, but signified real completeness and worth.®
Whether he was referring back to the biological origins of
law or considering the psychological poise produced by virtue,
the fact that justice squared a man with the world about
him, or explaining the rational content of law or the moral
value and godliness of virtue, St Thomas wrote as one studying
a single evolutionary process ever ascending by divine causality
but not, as it were, jerked up or interrupted by factors which
invade it from without. Law, virtue, justice—they were rooted
1 2a-2ac. Ixi, Ixxix, Ixxx.
2 ia-2ac. Ixxxii, 3. cxiii, 1.
8 aa-sae. Iviii, I, ad 3, 5, 6. 12. lix, 1. Ixxix, I. HI Senknees xxxiii, 1, 1, Hi, ad 3.
4 ia-2ac. Ixi, 5. ia. xxi, 1, 2, 4.
* aa-aac. Iviii, 1.
• ia-2ac. xlix-liv.

124

THE ADVANCE

from the theologians

like plants not stuck in the ground like lamp-posts, and they
grew because they were alive.
2. The Concept of Law
An empirical and historical method which records merely what
in fact has been laid down or enforced as law leaves unsettled
what communicates to a command its specifically legal
character. The upshot is the sort of definition travestied by
Bentham, ‘a rule of conduct for those who are to observe it,
prescribed by those who prescribe it, commanding what it
commands and forbidding what it forbids’—not that when he
recognized the need for a science about the assumptions of law
he was out to defend the existence of Natural Law. Reflections
on the nature of law, set off when Roman jurists and statesmen
encountered the customs of non-Roman people which seemed
to derive from a natural order of things, led to conclusions about
the jus gentium which were framed in semi-philosophical terms.
The medieval thinkers were inorc speculative. Influenced
partly by scientific theology and partly by a renewed Greek
philosophy, they attempted to expose the fundamental prin­
ciples behind all the laws with which they had some acquaint­
ance—the Roman Law both civil and canonical, Lombard
Law, national traditions, the miscellaneous statutes of king­
doms and cities, the accumulations of custom and Divine Law
itself. Thereby they opened up questions which belonged to
political science. ‘The philosophic analysis and definition of
law,’ wrote Pollock and Maitland, ‘belong to the theoretic part
of politics.’1*III
They did not stop short at certifying what had been
historically enacted or at describing what would work for the
benefit of the community. They looked for a general idea, not
limited to one culture or civilization or set of positive laws, which
would serve as the essential criterion for juridical obligation.
Peter Lombard did not broach the subject but merely
discussed the relationship of the Decalogue to the two Gospel
precepts of charity.2 Of the surviving 252 questions of Stephen
Langton one only relates to natural law and another to the
potentia gubernandi. The early and middle thirteenth-century
1 History of English Law, before the Time of Edward I, Introduction, p. xxiii. Cam­
bridge, 1898.
III Sentences, XXXVII.

TENTATIVE DEFINITIONS

125
summists advanced little farther. William of Auxerre, who was
familiar with the Ethica Vetus and quoted from the de Anima,
the Physics and the Metaphysics, proposed some of the rudiments
for a coherent theory: his Summa Aurea may have influenced
Alexander of Hales and St Albert. The earliest systematic
exposition seems to have been attempted in the Franciscan
treatise, de legibus et praeceptis, composed probably by John of
Rochelle and used as a source by St Thomas.1*VVincent of
Beauvais in the Speculum Naturale did not linger over the impres­
sion of the Eternal Law on man’s mind and will ; he was more
leisurely in the Speculum Doctrinale where after citing various
descriptions of law from classical authors known at his time he
offered his own definition, recta ratio imperandi et prohibendi, the
rightful reason for commanding and forbidding.2 The important
clement of reasonableness was there, but the definition re­
mained incomplete, since it applied to the just precepts of any
private authority, of an abbot or baron, for instance, and these
were not laws. The concluding section of St Albert’s Summa de
Bono was devoted to justice; there he attempted to clear the
notions ofjus and lex, but found himself tangled with the four
laws enumerated in the Glossa Ordinaria once attributed to
Walafrid Strabo—the Natural Law, the Mosaic Law, the Law
of Grace, and the Pauline Law in our members. Another
treatise on law, attributed more surely now than heretofore
to Peter of Tarentaise, a colleague of St Thomas and afterwards
Pope Innocent V, written about this time, fared no better.3
St Thomas seems to have been the first to put forward ex
professo a full definition of law by its fundamental properties
followed by a balanced division of its types. After sketching
several parts of law in his early works, the Commentary on the
Sentences and the Summa Contra Gentes,1 he arrived at his con­
1 O. Lottin. Psychologie et Morale au XIIc d Xllle siècles, ii, pp. 20, 64.
* xxix, 72. iv, 61.
8 P. Glorieux. La littérature quodlibdique. ii. p. 90. Paris, 1935.
* ill Sentences, XXXVII, t, on the decalogue and the advantages of a written
code. IV Sentences XXXIII, i and ii, on monogamy and divorce. Ill Contra
Gentes, 113, 114, on the reasonableness of Law. The doctrine of Lex Aetema
pervaded his writing at this period, though the term does not often occur, sec
V de Veritate, 1, ad 1. Ill Contra Genies, 54-113, on Providence. Ill Contra
Genies, 114-130, on Divine Law. Before he wrote the Prima Secundae he described
sin as contra legem Dei, not as contra legem aeternam.

I2Ô

THE CONCEPT OF LAW

sidered definition towards the end of his life and devoted a
whole question of the Summa Theologica to its explanation.1 Law
was an ordinance of reason, directed to the common good,
issued by the authority in charge of the political community,
and promulgated to its subjects: quaedam, rationis ordinatio ad
bonum commune et ab eo qui curam communitatis habet promulgata.12·
Each of the four elements of the definition was discussed in a
separate article; the divisions of law were treated in the
questions that followed.
The formula was reached less by analysis of the notion of law
conducted within the medium of strictly legal science than by
a synthesis of the findings of moral science, itself a part of the
philosophical reading of our environment. A particular science
assumes its own premisses without demonstrating them;
jurisprudence is no exception. To what extent the science of
law derives from the science of politics, and the science of
politics from other historical and philosophical sciences will be
touched on later. Law was obviously a versatile notion, but no
deep separation, still less antagonism, between morality and
legality was supposed; the definition was intended to cover
both Natural Law and Positive Law. The authorities cited—
Aristotle, St Paul, Cicero, Justinian’s Digesty Isidore, Gratian,
and Peter Lombard—offer a cross-section of the construction
from Greek, Jewish, Roman and Germanic elements. Yet when
the whole treatise was finished, its end being protracted with a
lengthy examination of the Mosaic legislation, the measures of
legality were seen for what they were worth, worthy of obe­
dience but not of utter devotion. The system of reason was
thrown open to the Gospel law of love. Regulations were all
very well up to a point and conformity to social patterns was a
duty, but the spirit bloweth where it listeth.3
Let us consider in turn the four clauses of the definition. The
first declared that law was an ordinance of reason, ordinatio
rationis. Commanding and forbidding were its evident function,
for law does more than persuade; it is ready to enforce. Where
1 ia-2ae. xc.
2 la-aae. xc, 4.
G. Granieris. Contributi tomistici alia filosofia del dirilto. Turin, 1949.
» ia-2ae. xcviii-cv, on the Old Law. cvi-cviii, on the New Law.

ORDINANCE OF REASON

127

St Thomas differed from scholastics of the ‘voluntarist’ school
was in teaching that law was elicited by mind, not by will, that
is by the practical reason, intellectus practicus. This was not a
faculty separate from the theoretical reason, intellectus speculativus,
since where truly human outgoing activity was concerned
thought and action were not specifically distinct.1 Action was
contemplation turned to doing and making. Virtus intellectiva
de se est ordinativa et regitiva—the emphasis on the ruling power of
mind accorded with his general dynamic psychology.1
2 The
moment of final happiness was constituted in the intellect, for
vision, not delight, was theformale in beatitudine\ and beforehand,
in the development of a typical human act, the imperium, or
final effort leading immediately to its attempted performance,
belonged more directly to cognition than to appetition.3 His
analysis of free-will, liberum arbitrum, fastened on the play of
reason and deliberation, not on executive spontaneity.4
He held that law should make sense, and the principle lex
plus laudatur quando ratione probatur was honoured throughout
his social theory. The domination of power was not accepted
unless charged with evidence for assent and blind or capricious
force was granted no authority as such. It was admitted that
we live in a world of compulsions, nevertheless one man can
rightfully control another only by showing reason for his
power: even omnipotence cannot break the order of truth.5 It
was not surprising, then, that he required an ordinance to
manifest intelligible goodness, the honesty of virtue and the
integrity of decorum; this was the first condition of lawfulness.®
Reason went before the ability to enforce. Not that a logic of
necessity had to be disclosed in every case, since human laws
worked in a world of contingent events, but that appropriate­
ness to the situation had to be sufficiently evident. Legislation
was a part of the practical wisdom of governing the community,
1 ta. bueix, 1i. Ill
Veritate, 3. Illde Anima, lect. 15.
For a comparison with the teaching of Scolus, see G. Budzik. de Conceptu Ltgts ad
mentem Joannis Duns Scali. Burlington, Wis., 1954.
* III Contra Gentes, 78.
1 ta-2ae. iii, 4. xvii, 1.
4 i a. Ixxxiii 3, 4. IV' de Malo, 1. XXIV’ de Veritate, 4. 5. 6.
* i a. XXV, 3, 4, 5. I de Potentia, 4-7.
8 2a-2ae. cxlv, 1, 2.

128

THE CONCEPT OF LAW

prudentia regnativa, a species of prudence, the intellectual and
moral virtue of which the principal act was to command,
praecipere.1
The jurists were more concerned than the theologians with
the fact of law and less with its reason, still less with its exemplar
in the mind of God.1
2 It is true they had welcomed the Corpus
Juris because of its rational elegance and superiority to tribal
laws, not out of deference to existing authority—for the
Emperor of the West governed by custom and consecration by
the Church while as for the Emperor of the East, who governed
by the Roman Law, he was a remote figure. Nevertheless many
of them soon began to look to the sovereign will of the ruler as
the source of law. A scrap from Justinian’s Lex Regia was
alleged in support, that the pleasure of the prince has the force
of law, quod principi placuit legis habet rigorem.
The phrase, part of a text dealing with the act of alienation
in the people’s contract of subjection to the Emperor, was
rejected by St Thomas because it would make for wickedness,
magis esset iniquitas quam lex.3 Bracton declared that there was no
king where the will and not the law had dominion ; if the king
be without a bridle, they ought to put a bridle upon him. Both
spoke for the same theological tradition. Deriving from the
Stoic teaching of reason immanent in nature, which had been
supplemented by St Augustine’s theology of the Eternal Law
in the mind of God imparting what justice there was in
temporal laws, it was confirmed when men learnt from Plato
and Aristotle that mind ruled will and directed all arrange­
ments of heterogeneous parts. Seneca and St Augustine had
been haunted by the sway of forces exempt from the control of
reason, the mors lex, tributum, officium mortalium, the compulsions
of concupiscence and corruption. St Paul, too, found another law
warring against the law of my mind.4 St Thomas was easier with
this impetus sensualitatis than St Augustine had been; it was not
necessarily sinful and penal, a kind of caricature of law, for its
1 2a-2ae. xlvii, 8.1. i.
For a study of the ‘intellectualism’ of St Thomas compared with the ‘voluntarism’
of Henry of Ghent, sec T. E. Davitt, The Nature of Late. St Louis, 1951.
3 >a-2ae. Ixxi, 2, ad 4. xciii, 3, 4. ta. xv, 2, 3. xxxiv, 3.
3 ia-2ae. xc, ad 3. Digest, i, 4. Institutes, 1, 2, 6.
1 Romans, vii, 23.

LAW FOR THE COMMON GOOD

I29

essential propensity, inclinatio propria, was to the common good
and could be controlled by intelligence.
The second clause of the definition committed law to the
service of the Common Good.1
2 Government for the sake of the
governor had never been defended, nor had decrees designed
for his private convenience to the detriment of the body politic:
what was new was that henceforth law was reserved to general
rulings affecting the community as a whole. Enjoining or
forbidding kinds or types of social action was not directly con­
cerned with particular occasions, hence law was more sweeping
than a precept, praeceptum, which might be issued by any
superior or parent about an individual act or course of conduct.3
Laws also were wider than privileges, privilegia, which were like
private laws, or than sententialia which were judicial decisions
on determinate cases which might bind in law.4 An ordinance
serving a sectional interest was not a law in the full technical
sense, though it might rightly claim obedience. Not every
precept was law, therefore, though every law was precept—the
difference was like that between a law passed by Parliament
and an order made by a Government department on the
authority of a regulation allowed under an Act of Parliament.5
To discuss the bonum universale, the full and final social good
as St Thomas conceived it, would take us far afield from political
theory, yet since it gave both moral dignity and character to
the partial and penultimate general welfare which was the
immediate purpose of law and political action, it must be at
least saluted in passing.® It was not a collective-value, the
greatest good of the greatest number, the welfare of the whole
considered as a mass-effect, but the personal good of each and
all which ultimately implied the vision of God and the lasting
companionship of friends. It was held in an act of mind—for
St Thomas’s intellectualism descended from high theology’ to
social philosophy—yet it was no abstraction. The bonum com­
1 ia-2ac. xci, 6. ad 3.
* la-aac. xc, 2.
a ia-2ac. xc, 2, ad 2.
4 ia-2ac. xcvi, 1, ad 1.
4 See Falmouth Boat Construction v. Hozcell. Court of Appeal. The Times, jo February
>950.
• T. Gilby. Between Community and Society, pp. 194-6, 211-3. See below pp. 236-49.

130

THE CONCEPT OF LAW

mune was not bonum in communi or goodness in general, it was the
Good Thing embracing all that was good and real. The posses­
sion of God, who is the Whole who creates the universe, was
more than the answer to a question; it was the end of desire.
Theology outspread social philosophy and obviously the
Common Good so conceived went far beyond the public benefit
or res publica of Roman jurisprudence; similarly the laws of the
City of God transcended the legal and political categories of
the earthly city. The Beatitudes, or the lessons of the Sermon
on the Mount were promises of happiness, but their merit and
reward were not achieved in the practices of good citizenship,
which did not require us to be humble of heart or to mourn or
to endure persecution. For the common good of the political
community was a humbler affair altogether. It was sufficient if
the social decencies were observed. As we shall see later, when
discussing the limits of legalism and the relations between
citizenship and eccentricity, St Thomas would not have our
rulers take too much on themselves. They were guardians of
the peace, not spiritual directors. The body politic may be
compared to the individual body: the physician may regret a
moral disorder yet be content to prescribe only for psychological
and physiological health. So also the State, while it should
impede no human decency, lacks the ability to promote every
virtue. Its duty is restricted to that outward justice without
which social life would be impossible. At least let it regulate the
economic provisions for physical and mental health, and
inculcate fair-dealing; for the rest it will serve moral health
best by protecting freedom.
Nevertheless subjects are immortal persons who are not good
unless they are being prepared for a life beyond that in the
State. Let the ruler listen to the Sermon on the Mount for the
Beatitudes already begin in this life.1 Sovereign rights in the
complete hierarchy of means and ends are subordinate to the
ultimate purpose of human life. This is the primum principium in
everything we do, and especially in the making of laws which
are meant to be guides and conveyances to heaven.2 St Thomas
quoted Aristotle, that those laws are just that tend to produce
1 ia-2ae. Ixix, 2.
3 ia-2ae. xc. 2.

THE LEGISLATIVE SOVEREIGN

ΙβΙ

and preserve happiness and its components.1 He recognized
that tensions are likely to be set up between the claims of
personal friendship, which is the long-term purpose of law, and
of normal observance, which is its immediate object.12 Whereas
St Augustine left the virtue in political power at least cloudy,
for our true city lay beyond this world, and Aristotle scarcely
envisaged any human nobility that was not of service to the
community, St Thomas characteristically reversed their roles,
and summoned St Augustine to support reverence for civil
authority and Aristotle to support extra-political virtue.
The idea of the Common Good was a Greek preoccupation.
The public interest was not clearly defined by the Romans
from the legal point of view; to them origins were clearer than
ends. They were concerned with the source of law, with the
Populus and Princeps. The third clause of the definition, that
law should be pronounced by authority, raised the question,
Who was the legislative sovereign ?·
The question was not sharply defined, for in medieval days
the notion of sovereignty was at once vaguer and less ambitious
than it became afterwards. Except for some canonists, nobody
thought of a visible authority which claimed complete imperium,
or which stood supreme, without partner, peer or competitor,
free from limitations of prescription: not even the Pope was
generally regarded as omnipotent by himself within the Church.
Power implied responsibility in a moral setting, and since
law was for the welfare of the whole people, it followed that the
power of making law belonged to the power able to promote
the common good. This power, under God, resided in the
people themselves or in their guardian, since no alternative
organ had been appointed, or detailed political instrument
revealed. The argument was brief; such questions of the legal
authority of God in the Mosaic community, or the supreme
authority within the Church, or the ineradicable right of the
paterfamilias (who issued precepts, not laws) lay outside its
scope. It did not decide where this underlying authority should
1 Ethics. v, 1. 1129 b 17. IX Ethics, lai. 9. de Regimine Princif/um, i, 14. la-aac.
xciv, I.
2 See ia-2ae. xcvi, I, 6.
* ia-2ae. xc, 3. For dominium see 2a-2ae. ixvi, 1, 2.

I32

THE CONCEPT OF LAW

in practice be located, or adjudicate between monarchic, aristo­
cratic, and democratic regimes. Though the argument held that
supreme power should in some manner be representative, the
constitutional character of the ruler was left unsettled—a
theologian, unlike a jurist, is more concerned with the exercise
and purpose of civil authority than with its titles, hence the
Church is usually prepared to work with any government which
does not violate the decencies, however illegitimate its origins.
As the Common Good in the philosophical and theological
senses of the term was wider than the res publica, since it com­
prised relationships beyond the reach of legal guarantees, so
the supreme authority in the commonwealth was not so exactly
defined as the persona publica of the jurists. The social theologians
did not investigate the hypothesis of the historical legal act
which might be presumed to have determined the seat of
sovereignty; the related question whether the prince’s position
depended on the continued consent of his subjects came up only
in passing. That St Thomas’s own sympathies lay with the old
doctrine, that the ruler spoke with the agreement of the whole
people and observed an unwritten constitution, and not with
the new theory of the lawyers, that he enjoyed absolute power
which nobody could impugn, can be argued from references
elsewhere in the Summa Theologica. Thus he advocated a wide­
spread political prudence through popular participation in the
business of legislation and government, and taught that obe­
dience was owing to a superior only within warranted limits.
Nevertheless as he grew older he seemed to harden against the
deposing power of the people. The classical expositors of liis
social thought in the changed conditions of the sixteenth century
did not consider that the people’s viceregent was no more than
the channel of their power; he was a representative with initia­
tive and responsibility of his own, not merely a delegate pre­
viously committed to a detailed policy and responsive to every
mood and whim of his supporters.1
1 See Thomas de Vio Cajetan (d. 1534)· de Auctoritate Papae et Concilii Commentaria in
Suinmam Theologiae S. Thomae (in zam-zae, i, jo).
Francis de Vitoria (d. 1546). Relectioncs de Potestate Ecclesiae prior et posterior, de
Potestate Civili, de Potestate Papae et Concilii.
Dominic de Solo (d. 1560). de justitia et Jure.
Francis Suarez (d. 1617). de Legibus.

LAW FROM THE PEOPLE

ISS
Cicero’s contention that liberty implied some share in the
conduct of State affairs accorded with the antique tradition
that the people were the source of power; indeed the legal
scores of the Roman Empire were a palimpsest underneath
which could be discerned the principles of Roman republic­
anism. It was confirmed in the thirteenth century when men
read in Aristotle that the deliberative power was sovereign,
and ratified what was initiated by the magistrates.1 Moreover,
the policies of the Church did not favour the separation of
princely power from popular approval. A favourite quotation
from St Isidore, used by St Thomas and Gratian before him,
was that law was an ordinance of the people whereby some­
thing is sanctioned by the ciders together with the commonalty.2
St Thomas preferred the customs of free people to the prince’s
initiative as the origin of legislation : better, he thought, when
men can prompt laws for themselves instead of having to be
looked after with laws made for them. In a free community,
libera multitudo, the people’s consent was more important than
die prince’s authority, for he could make laws only as ‘imper­
sonating’ them. Only in the case of a nation under tutelage was
he the source of law, and, even so, popular customs had the
force of law as long as they were tolerated or tacitly approved.3
These principles were used alike by the Spanish Thomists in
their not unsuccessful attempt to mitigate the exploitation of
the American Indians and by the League of Nations in dealing
with mandated territories.
The populus in this context meant the whole group of citizens,
universitas civium. A civis was a male adult who practised political
prudence and took part in public affairs. Women, children,
and perhaps resident foreigners were not included; serfs and
dependents tied to the land were more like the perioikoi than the
douloi in Aristotle’s polis. St Thomas never referred to the
Emperor as a force to be reckoned with, nor identified him
with the Princeps of the law-books. He cherished no mysticism
about the origins of the Western Empire. Nor was he haunted
by the shadowy Populus Romanus of medieval Roman juris­
1 E. Barker. The Politics of Aristotle. ‘Noles on the Vocabulary,' p. xvii. Oxford, 1948.
s ja-2ae. xc, 3 sed contra. Etymologies, v, 10. PL Ixxxii, p. 200 Decretum I, i, 1.
* ia-2ac. xcvii, 3, ad 3.

134

THE CONCEPT OF LAW

prudence, to which Frederick II appealed when he crossed the
Alps to assume the imperial dignity—the democratic sincerity
may be doubted but not the advantage of appealing over the
heads of the Pope and German princes. ‘Theoretically the name
might denote anything from the whole assemblage of peoples
within the unity of Latinitas to the degenerate inhabitants of
Rome, who occasionally amused themselves with reviving the
Senate and other republican dreams. In effect it meant nothing
at all, or nothing that had any genuine connection with Rome.
If the Roman Emperor was a fiction, the populus Romanus was a
myth.’1
The fourth and final clause of the definition, that law needs
to be promulgated, was introduced by the Canonists. It was a
commonplace that laws should be brought to the minds of
subjects. A summula of Bulgarus started off, Inasmuch as laws
should be known and understood by all, Qyia leges ab omnibus
sciri debent et intelligi. Gratian, however, seems to have been the
first to bring out the importance of promulgation: laws are
instituted when they arc promulgated, leges instituuntur cum
promulgantur.2 St Thomas acknowledged his source and con­
firmed the meaning from one of St Isidore’s etymologies, lex a
legendo vocata est.3
The gist of the argument was that law had to be reasonably
received as well as reasonably enunciated. It should be proposed
without undue technicality in a manner clear and intelligible
to persons of ordinary understanding. That it was beneficial had
to be commended, for who will obey unmeaning regulations?
This was of a piece with the rule that it was not enough for
justice to be done, but that justice should be seen to be done.
Unlike Natural Law, which, in theory at least, was a body of
commands and prohibitions discoverable by unaided reason,
the Positive Law was not bound to be what it was from the
1 W. H. V. Reade. 'Political Theory to c. 1300.’ Cambridge Mediaeval History vi,
p. 620.
8 Printed by H. Kantorowicz. Glossators, p. 244.

• ia-2ae, xc, 4. Etymologies, xi, 10. PL Ixxxii, 130. Decretum I. 4. 3. S. Kuttncr.
Kanonistische Schuldlehre von Gratian bis auf die Dekrelakn Gregors IX. xii. pp. 15375. Vatican City, 1935.

PROMULGATION

»35
necessity of things; it could be otherwise. Consequently the fact
of its institution had to be published and brought to the minds
of men whom it proposed to rule. Natural right was not created
by the written code which contains it; its force came from
nature, not from human legislation. Positive right, jits positivum,
on the other hand, was both contained and created by the code
which gave it the robur auctoritatis.1
The leading principle was that nobody is bound to what he
docs not know about, nullus ligatus nisi mediante scientia.'2.
Ignorance which was not wilful, either by choice or from
negligence, always excused. The distinction between ignorance
of the law, ignorantia juris, and ignorance that an action here
and now was covered by the law, ignorantia facti, appeared in
the writings of canonists such as Roland Bandinelli and Stephen
of Tournay (d. 1203) and of theologians such as Roland of
Cremona and Hugh of St Cher. St Thomas made it equivalent
to Aristotle’s distinction between ignorantia universalis, lack of
moral science, and ignorantia particularis, a mistaken judgment
about a contingent case.1
*3
To summarize this section on the four elements in St
Thomas’s conception of law. First, it was a rational ordinance,
for though the legislator should be backed by the ability to
enforce his ordinance the initial condition for its acceptance
was that it placed a meaning in our social conduct. We were
obedient to it in a manner different from our submission to the
force of fire and water or to any mere might we could not
resist. Secondly, its meaning lay in its reference to purpose.
Why should we obey? Because of the Common Good. Again
an object which required intelligence to perceive. Thirdly, this
purpose could be envisaged only by the commonalty in theory
and by its representative in practice. Fourthly, it must be
brought to the rational acceptance of its subjects. Law could
not bind unless promulgated, and on this head the moralists
1 aa-2ae. lx, 5.
3 XVII de Veritate 3.

3 J. F. von Schulte. Die Simona des Suphanut Tornaceruis. Giessen, 1891. ia-2ae,
vi, 8. i Qpodlibets, 19. Ill Ethics, fact. 3. 11. mob 18, x 113 b 30.
O. Lottin. *Lc problème de Vignorantia juris de Gratien à saint Thomas d’Aquin. ’
RTAM, v, p. 345. Louvain, 1937.

136

THE ADVANCE

FROM THE THEOLOGIANS

debated how far subjects were excused from its observance by
the accidents of ignorance.

3. Types of Law
Proceeding from definition to division and drawing on the
treatise de Legibus et Praeceptis, probably by John of Rochelle, the
Summa Theologica sorted out the various sets of laws.1 They had
been muddled by theologians suspicious of physical motions,
by exegetes treating the substance of the Decalogue as divine
revelation, by writers on jurisprudence uneasily combining
opposed texts from Gaius and Ulpian and by canonists
prepared to claim that theirs was the law of the Gospel.12 Eight
types of law were currently received—the Eternal Law, the
Natural Law, the Divine Law, Positive Law, the Mosaic Old
Law, the New Law of the Gospel, the Jus Gentium, and the Lex
Fomitis. It will be apparent at once that the term law was
flexible or, as the Scholastics would say, analogical. Our main
interest is the distinction between Natural Law and Positive
Law, also the character of the Jus Gentium which shared in the
characteristics of both. However it will be useful to glance at
the others, if only to appreciate the surroundings of St Thomas’s
social science.
The Eternal Law in the mind of God was the first exemplar
of all law and government.3 Transcending all legal categories,
it descended into created minds and was there partially
expressed in two ways, directly through the biddings of natural
and gracious reason towards such and such types of action,
indirectly through an act of human will which determined
certain supplementary regulations. The first was Natural Law,
the second Positive Law.4 Λ similar distinction appeared in
higher primitive cultures between the laws ‘written in the
hearts of men’ and those ‘decreed by the chieftains’, and was
implied in Antigone’s defiance of King Creon, ‘as if you, a
mortal, could overrule the sure unwritten laws of the Gods’.
1 ia-2ac. xci.
3 ta-aae. xciv, 4 ad t.
W. Ullmann. Mcduval Pafialism, pp. 42-6.
3 ia-2ae. xciii, 3.
4 A. Rohner. ‘Naturrccht und positives Rccht.’ Dwus Thomas, xii, pp. 59-83.
Fribourg, 1934.

NATURAL LAW

137

Natural Law was present from the beginning of human
activity, for the mind was set towards right by an inborn habit,
called synderesis.*1 It was apprehended almost instinctively;
indeed, Ulpian described it as basically animal. Nevertheless
human activity, properly speaking, was reasoned, and so was
the human response to law. At this level certain common
standards were recognized, and the fact gave rise to Gaius’s
conception of Natural Law, namely that its precepts were
universally respected by all peoples.
Variations were admitted and though no systematic code of
the Natural Law was written down, parts of it from the time
of Roland of Cremona were ranked into primary and secondary
precepts according to their closeness to the first principles of
morality: some followed swiftly as conclusions, others called
for a longer process of reasoning before they could be admitted.
Telling the truth, for instance, was a primary imperative,
despite the embarrassments of application to certain cases, as,
for instance when a ‘white lie’ was convenient; monogamy
was secondary, certainly desirable but less fundamental. Some
truths were universal—fire bums the same in Greece and in
Persia, remarked Aristotle—and the first principles, communia
principia, of natural morality were everywhere known. Yet
its implications, propriae conclusiones, were unequally drawn.
Accordingly Natural Law was not evenly developed or observed
in every region or period. At one stage its development might
stop short, thus Julius Caesar noticed that robbery was not
condemned by the Germans though in fact it was against the
order of natural justice.2
Moreover, moral practice dealt with contingent matters in
which a deal of ladtude had to be allowed for. Difference of
physical condition affected judgments especially with regard to
social morality. The sugar-intake of the medievals through their
ordinary diet was less than ours; their drinking, and therefore
their drunkenness, had a different quality about it. Their
psychology of sex, to judge from the moralists, seems to have
been more directly genital and less influenced by romantic
11 a. Ixxix, 12. ia-2ae. xciv, 1, ad 2.
1 V Ethics, led. 12. 1134 b-35 a. ia. aac. xciv, 4. 2a-2ae. Ivii, 2, ad 1.

138

TYPES OF LAW

literature. Their response to physical suffering and death was
hardier.1 There were other variations, too, which should pre­
vent our too flatly transferring judgments from one culture to
another.
The Gospel Law, which marked an evolution from within
the Old Testament dispensation, brought in because of trans­
gression, to a freer life of personal conscience, was a spirit not a
code, a promise not a coercive dictate, an invitation to love
God above all and our neighbour as ourself.2 The Sermon on
the Mount was the proclamation of a moral ideal, not the
promulgation of a moral system. The New Law imparted life,
and was not a bondage—such was the argument of the Epistle
to the Galatians. It was concerned not only that we should do
virtuous deeds but that we should do them virtuously, and act
not as slaves but as the children and friends of God. It followed
from the constitution of human nature in a condition of grace:
that this was entirely of God’s bounty and beyond our deserts
did not mean that the appropriate operations were forced or
arbitrary. On the contrary, as we have already noticed, they
proceeded from us naturally and congenially and were directed
to ends which met our abilities raised to the highest power. We
shall come back to this Law of Liberty, but in the meantime let
us pause on the concept of Positive Law.
Institution by an act of will which could have settled the
matter otherwise was the essential feature of Positive Law. What
it commanded was right because commanded, what it forbade
was wrong because forbidden, unlike Natural Law where deeds
were right and therefore commanded, or wrong and therefore
forbidden. Its decree—for instance, the forbidding of murder—
might coincide with an ordinance of Natural Law, and a sin
thereby be turned into a crime as well, but its scope was
restricted to the temporal well-being of the community. Some
things it should leave well alone; some virtues were not matters
of civil or ecclesiastical duty and some vices were not matters
1 Sec aa-2ae. cl, cliii, dvi, dix.
L. Brandl. Die Sexualethik des hl. Albertus Magnus. Rcgcnsberg, 1955.
* ia-2ae, cvi, 1.
T. Gilby. Between Community and Society, pp. 165-70, 176-83, 194-200, 329-32.
C. Spicq. ‘La Conscience dans !e Nouveau Testament.’ Revue Biblique, 1938, pp.
50-80. Paris.

POSITIVE LAW

139

for prosecution.1 Then again, Positive Law could be repealed,
Natural Law never.
In practice Positive Law could be equated with human law—
we shall presently touch on the concept of Positive Divine Law.
The two types of human law were the Civil Law of the State
(which included what is now called Criminal Law) and the
Canon Law of the Church. In between lay an area ruled by a
kind of condominium of the spiritual and temporal powers
through ecclesiastical laws which affected, for example, the
ownership and management of religious foundations, or the
civil obligations of clerics.
Finally it remains to notice the Lex Fomitis and the Positive
Divine Law, notably as expressed in the Old Law, Lex Velus,
in order to fill in the background, psycho-biological and
historical, to medieval political theory.
Opposed to the law of liberty St Paul wrote of ‘another law
in my members warring against the law of my mind, and
bringing me into captivity to the law of sin which is in my
members.’2 This agony within human nature redeemed but not
yet restored, described in the literature of conversion, rose
partly from those animal drives which according to Ulpian
entered into Natural Law. But human nature was fallen, and
these were corrupted by Original Sin. The Stoics had preached
a passionless virtue, and the Christian moralists deprecated any
disturbance of reason. The Augustinians lamented lust or con­
cupiscence springing from the loins of sin. There was a
depravity about any emotional impulse, secundum impetum
sensualitatis', it lit the kindling of sin, thefomes peccati, or inclinatio
sensualis appetitus in id quod est contra rationem.3 This sort of com­
pulsion within our unregenerate nature was named by Peter
Lombard the lex fomitis—that lex should be used in such a
context shows how ambiguous the term was.
St Thomas agreed that any lapse from the order of reason
into the sway of irrational forces was a penalty of Original Sin;
so too was the physical subjection implied in mass-compulsions,
1 ia-2ac. xciv, 3. xcvi, 2, 3.
* Romans, vii, 23. ia-2ac. xc, I, ad 1. xd, 5.

*Sce ia-2ae. Ixxiv, 3, 4. Ixxxii, 3. bcxxiii, 1. ia-2ae. xci, 6. 3a. xv, 2.

140

TYPES OF LAW

obsessive sexuality, disease and death. Nevertheless, human
motions which issue from sub-rational depths were not obscene
in themselves but healthy: even jungle-law was adjusted to the
balance of nature and to the preservation of species and
individuals.1 Sensuality, or the voluntas sensualitatis, was
accepted without protest—indeed it was present in Christ.1
2
In the Summa Theologica the term concupiscentia sometimes kept
its conventional sense and signified wrongful lust, but it also
recovered a cleaner sense, and stood for the response of the
appetitus concupiscibilis—according to the pain-pleasure principle
—or for innocent straightforward desire working even in the
highest virtue, and notably in the theological virtue of hope.3
The lex fomitis, which held no important place in St Thomas’s
divisions of law, was treated more cursorily in the Summa
Theologica than in the Commentary on the Sentences.
Similarly the special concept of the Positive Divine Law calls
for but brief delay. The terms lex divina or jus divinum were used
loosely sometimes for the ultimate backing of all laws, par­
ticularly the precepts of morality and religion. More particu­
larly they referred to God’s entrance into history as a legislator;
the consequent prescriptions were to be found in the Scriptures
and the documents of the Christian Church. Some, like the
Ten Commandments, were articles of natural morality,
theoretically within human competence to discover and keep,
which, by analog}' with the truths of natural religion, had
been divinely revealed and promulgated, since Providence
does not expect the plain man to bear the burden of his nature
unaided.4 Others were supernatural; the Old Testament was
prophetic and directed men to ends beyond reason, and the call
of grace rose clearer in the New Testament? The Summa
Theologica devoted a lengthy and detailed study to the Mosaic
Law, which comprised moral, ceremonial, and judicial
ordinances for the Jewish politico-religious community; its
1 ia-2ac. xci, 6. c & ad 3.
2 3a. xviii, 2.
’ sa-2ae. xvii, 8.
* la-aac. xci, 4. c, 1. 2a-2ac. ii, 4. I Contra Gentes, 4.
s la-aac. xci, 4, 5.

POSITIVE DIVINE LAW

I4I

theme was Messianic, and it was accordingly treated as a
historical prelude to the Gospel.1
The special juridico-theological importance of Positive
Divine Law was bound up with die divine constitution of the
Church; thus the prerogatives of the Apostolic See and the
Episcopate were ex divina institutions and ex jure divino.2 So also
was the sacramental economy. No wonder medieval authors
extended the Positive Divine Law to details of Church disci­
pline. If some took the Natural Law into the Divine Law,
others, one might say, merged the Divine Law with the Canon
Law. Huguccio, the canon lawyer who may have provided
Innocent III with his juristic equipment, identified the Law of
the Old and New Testaments with the law of nature, because
the summa natura, id est Deus has delivered it to us through
prophets and evangelists; playing on the scriptural word canon,
he concluded that Divine Law could also be called the Canon
Law. To show the danger of simplification which might lead us
to believe he was a political Canonist, it was Huguccio also
who formulated the dictum that he who was chosen by the
Electoral Princes is the true Emperor even before he was
confirmed by the Pope; this reflected the process of historical
development and the claims of the prince to rule by right of
conquest and sanction of civil law.
There is no evidence that St Thomas ever thought of a
régime of which God was legal sovereign or regarded the
Christian Church as the legatee of the political prerogatives of
the Jewish Church. The Summa Decretalium (1210-15) of
Damasus clearly distinguished Natural Law and Positive Law,
which last included Canon Law: est autem jus positivum sive
expositum ab homine, ut sunt leges saeculares et constitutiones eccle­
siasticae.3 If the opinion that Canon Law was a kind of human
law was only rarely expressed by the Church authors of the
time, it should be remembered that when early decretalists,
such as Rufinus, Faventinus and Stephen of Tournay, wrote
of the Canon Law as jus divinum they were merely contrasting
1 ia-2ac. xcviii-cv.
D. Daube. Sttdicj in Biblical Law. Cambridge, 1947.
’ 2a-2ac. Ivii, 2, ad 3.
* Sec W. Ullmann. Afediwal Papalism, pp. 40, 43, 72.

I42

THE ADVANCE

FROM THE THEOLOGIANS

it with jus civile and jus humanum, which they took to be synony­
mous. The term jus divinum went out of fashion, and so did
jus sacrum, to be succeeded by jus pontificium (in contrast to jus
caesareum,jus imperiale, jus regium) and jus ecclesiasticum. The final
approved technical term was jus canonicum.1
St Thomas thought that purely ecclesiastical institutions and
domestic legislation belonged to human law, and therefore,
unlike the divine and Natural Law, were under the dispensing
power of the Pope.1
2 Canonical legislation was rooted in histori­
cal custom and past enactments, yet possessed a peculiar
character and status ; the modern Codex Juris Canonici, promul­
gated by Benedict XV, regards its own specific ordinances as
distinct from any others as well as from custom.3 Certainly it
was well both for the clarity of law and for religious devotion
that Canon Law was never officially identified with the Gospel
Law.
4. The Jus Gentium
To medieval jurisprudence the Jus Gentium might signify
anything between the developed Natural Law and a kind of
universally recognized Positive Law.4 The ambiguity was
reflected in the Summa Theologica. Whereas the Prima Secundae,
while allowing that die precepts of the Jus Gentium were
inferred like conclusions not very remote from the principles of
die Natural Law, was inclined to treat them as belonging to
Positive Law, humanitus posita, the Secunda Secundae, while
emphasizing that they expressed a more deliberate judgment
than the instinctive adaptations of the Natural Law as described
by Ulpian, ranged them under the Natural Law as described
by Gaius and reflected that they needed no legislative enact­
ment since nature has instituted them.5
Historically the Jus Gentium was originally that part of the
Roman system which had grown partly from the edicts of
magistrates charged with jurisdiction over strangers and partly
from the studies of jurists who sought to accommodate the
1 G. Michiels. Normae Generates juris Canonici, i, pp. 7-14. Lublin, 1929.
s IV Qjwdlibcls, viii, 13. 2a-2ae. cxlvii, 3.
3 See can. 27, 100, 107, 196, 219, 329, 727, 1016, 1060, 1068, xno, 1139, 1405,
’495. ’509. '5’3. ’539. 2198.
1 G. Lombardi. Ricerche in tema di Jus Gentium. Milan, 1946.
5 ia-2ac. xcv, 2, 4, c & ad 1. aa-2ae. Ivii, 3, c &. ad 3.

UNIVERSAL CUSTOM

>43

relations of persons of different nationality. It derived both
from the Jus Civile and from tribal usage, but was figured in
form and spirit according to Roman ideas ofjustice. All subjects
of the Empire fell under the Jus Gentium as well as the Jus Civile
when the largess of Caracalla extended citizenship to peregrins
in 212. Since much of it owed more to custom than to positive
legislation and showed what could be produced beyond the
pale of Roman civilization, it engaged the interest and appro­
bation of the philosophically-minded jurists. Here was a law
more universal than the jus proprium Romanorum. Here, thought
Ulpian, was a law more rational than the demands of animal
life.1
The medievals lacked the learning to appreciate its history;
in any case their habit was to read the past from the present.
To them it was a category of juridico-moral science to be
inserted somewhere between the general law of nature and any
given system of human law. From the twelfth century onwards
the jurists, and especially the dccrctalists, concentrated more
and more on the rational character of Natural Law. Ulpian’s
inclusion of animal motions was felt to be embarrassing.
Rufinus, who died after 1180, and Faventinus—John of
Faenza—who died about 1220, preferred to describe it in more
specific terms, de eo juxta quod humano generi ascribitur.2
The theologians agreed. St Albert equated it with rational
law, the Contra Genies developed its character as a personal
participation in divine law and the sketch of law in St Thomas’s
Commentary on the Sentences was filled in about fourteen years
later by the Prima Secundae (1269) with the same emphasis. Law
properly so called was an affair of reason, aliquid rationis.3 The
teaching of his friend, Peter of Tarentaise, that lex naturalis was
a habitus was criticized.4 As might be expected, the authority of
1 F. Senn. De la justice cl du droil. Explication de la definition tradilionelle de la
justice, suivi d’une étude sur la distinction du jus naturale et du jus gentium.
Parts, 1927.
a Summa Rufini, ad Dist. I. Classa Ordinaria (Favcntini), ad Dist. 2. cap. η.
H. Singer. Die Summa Decretorum des Magister Rufinus. Paderborn, 1902.
J. Juncker. Summen und Classen. Zeitschrift der Savigny-Stiftung für Rechtsgcschichte Kanonistische, xxv, pp. 462-71. Berlin, 1925.
3III Contra Gentes, 11 t-û. III Sentences XXXVII, 2, 3, 4. IVSentences XXXIII, i, 1.
ia-2ae. xci, 2, ad 3.
* ta-2ac. xciv, 1.

144

THE JUS GENTIUM

Gaius was prominent throughout this treatment he inci­
dentally did not speak of Natural Law but of ratio naturalis, i
Cicero, also, was appealed to. Hence the Jus Gentium came to be
regarded as retaining much of the vigour of the principles of
Natural Law, principles from which it developed some conclu­
sions. Articulated in universal custom and recognized by the
test of general acceptance, they provided guides to right
conduct discoverable by the reason without the intervention of
positive legislation.
The greater prestige of Aristotle then began to exert its
influence. St Thomas’s commentary on the Ethics dated from
about the same time as the Prima Secundae·, there he mentioned
jurists who took Natural Law as a postulate of animal nature,
whereas he himself preferred to follow Aristotle to whom it was
a human and reasonable standard.1
2 But the logos or reason
Aristotle stressed was not quite the same as that of the Roman
Stoics and jurists; it was more a meaning embodied in a
process, a teleological striving, than a ratio fixed in a scheme
conceived almost as a set piece composed by art. The Prima
Secundae observed how law rationalized what had started at
the lowest levels, and built up from the blind appetites for self­
preservation and from animal instincts—Ulpian was here
echoed without acknowledgment—to the specifically human
demands of social life.34*The stages might be distinguished, but
they were not exclusive: communicant in una radice.
*
Primitive
and civilized functions were rooted in the same thing, one
single human substance manifesting itself in different ways;
there was no abrupt break between the impetus of nature and
the industria of civilization, the natural expression of feeling and
speech.6
That may help to explain why, less than a year later when he
came to treat jus and justitia in the Secunda Secundae (1270) he
left Gaius and reverted to the lesser legal authority of Ulpian,
1 Institutes, i, 1. Digest, i, r, 9.
F. de Zulueta. The Institutes of Gaius, i. Text with Critical Notes and Translation.
Oxford, 1946.
* V Ethics, led. 12.
* ta-aac. xciv, 2. xcv. 4, ad 1.
4 Ibid, ad 2.
6 ta. Ixxxvi, 3, 4, 6, 8. Ixxvii, 1-6. / Politics, led. 1.

EVOLUTION OF NATURAL LAW

I45
and to the fragment of his teaching that Natural Law was
common to men and animals—Ulpian himself had not res­
tricted natural law to the quasi-instinctive adaptations of sex
and parenthood.1 This was awkward from a legal point of view.
The theologians had found it manageable only when they were
contrasting primitive rights and civilized adjustments, so,
although St Thomas dismissed the difference between the two
jurisconsults as mainly a matter of words, it was strange that
he should hark back to Ulpian. His name and doctrine may
have been running through his head that week when writing,
for the next article was to treat of the non-political and non­
reasoned quality of patriarchal, slave-owning and domestic rule
{justum paternum, justum dominativum, justum oeconomicum), and the
next question was to analyse and expand Ulpian’s celebrated
definition of justice—perpetua et constans voluntas jus suum
unicuique tribuendi.2 Perhaps it was a clue to how close he would
keep legality to human biology. It was certainly in keeping
with the movement of his ideas, which were taking on a more
Ionian complexion as he accepted more profoundly the reality
of material objects and the naturalness of the human com­
munity in the fullest physical sense of the word.
Whether natural rights were taken in their animal rudiments
or in their reasonable codification, or whether or not the Jus
Gentium were reckoned to belong to that, all agreed that a body
of law preceded the making of positive law. Human legislation
had to work on that datum. For the protection of its citizens
the State’s function was twofold : first, to set forth and enforce,
according to circumstances, those of the principles and con­
clusions of the natural moral law which were necessary for
organized social life; secondly, to go farther and add detailed
provisions, dispositiones particulares, not of themselves implied in
the moral law, but imposed in order to ensure uniformity and
public convenience.3 These were the ordinances purely of
Positive Law, which all subjects were bound in conscience to
obey.4 In themselves they could be otherwise: they derived
1 Digest, i, I, 3, 4. sa-aae. Ivii, 3.
’ aa-2ae. Ivii, 4. Iviii, 1-4, 8-11.
8 ia-2ac. xcv, 2.
* la-aac. xcvi, 4, 5.

146

THE JUS GENTIUM

their force not from their inner morality, but from the fact of
their enactment by lawful authority—like traffic regulations,
which are reasonable, not because there is no alternative, but
because all must keep the same rule of the road.
This capital distinction between the rational evolution of
Natural Law and these artificial supplements of the Civil Law
prescribed by the State will be discussed in the next chapter.
Both classes entered into the civilized community. Part of
political justice, Aristotle noted, was natural, part legal—
natural, that which everywhere has the same force and does
not exist by people’s thinking this or that; legal, that which is
originally indiffèrent, but when laid down is so no longer.1 Civil
laws alone, and no others, were generated by the State. Even
there some ordinances proceeded from the agreement of
citizens among themselves and from their consent to custom;
they were not initiated by the Prince.2 Customary laws, said
Aristotle, have more weight and relate to more important
matters than written laws; a man may be a safer ruler than a
code, but not safer than custom.3 The stability of the State
depended on custom rather than on the art of the legislator.4
The two however were related, and our next step must be to
consider the status of the legal sovereign with respect to the
natural needs of the political community.

5. Dominion a Natural Condition
A. J. Carlyle wondered how the curiously unhistoric reading
that political authority was founded on sin could have replaced
Aristotle’s sane and searching analysis.5 We may wonder, too,
how it became too firmly fixed in the theological tradition for
the weight of St Thomas’s authority to shake it. Not that he was
a mundane moralist disposed to exalt the earthly city. The
bonum commune sensibile el terrenlum was below the bonum inlelligibile
et coeleste. It was like the Old Jerusalem, not like Babylon, in
relation to the New Jerusalem.6 Political life and institutions
* Ethics, V, 7. 1134 b 18—sa. St Thomas, /«hia.
3 ia-2ae. xcvii, 3, ad 3.
3 Politics, Hi, 16. 1287 b 5-7.
* ia-2ae. xcvii, 2, ad 1.
5 History of Medieval Political Theory, v, p. 6.
0 ia--2ac. xci, 5.

THE NON-RELIGIOUS STATE

147

rose from natural rightful needs, and public authority was
therefore the object and not merely the occasion of rational and
Christian virtue.
He was the first of the great Latin divines whose outward
deference to the powers that be was not more or less tacitly
accompanied with reserve, and even cynicism. They moved in
this world somewhat like Cardinal Consalvi at the Congress of
Vienna, courteous to the diplomats, loyal to engagements,
concerned mainly to preserve the freedom of organized religion
by reaching practical accommodations to existing forces, but
unimpressed by the improving and solemn rhetoric with which
politicians clothe their actions. A concordat might be hoped for,
and if struck would be observed, but such prelates were not
seriously convinced that the secular power possessed the intrinsic
power to promote virtue, let alone die inclination. When
religion was socially powerful the State could be harnessed and
prelates could curb potentates, but when secular policies became
ends in themselves and the means to implement them lay handy,
religion became a private association; its activity retreated
more and more into the domestic enclosure of the Church and
the inner fastnesses of the soul.
The apostolic injunction, submit yourselves to every ordinance of
man for the Lord's sake1 which had always been preached and
obeyed except by visionaries for whom Rome was Anti-Christ,
could appear grudging when Europe was Christendom and
political power was consecrated. No persecution of religion as
such was likely to arise, despite conflicts between ecclesiastical
and civil magnates. Still the old theory persisted, that men were
divided between two opposed cities, the earthly and the
heavenly, and that the earthly city, while necessary to ensure
public security, was not charged with justice in the fullest sense
of the word. It offered a tarnished sort of good, but good
enough to go on with. St Augustine had not expected righteous­
ness and the true worship of God from civil government as such,
and Vincent of Beauvais, an older contemporary of St Thomas,
echoed the dualism. Political power, he said, was different in
Christians and in infidels for without the righteousness of grace
there was no true res publica. He allowed that pagan rule could
’ I Peter, ii, 13.

i46

the JUS gentium

their force not from their inner morality, but from the fact of
their enactment by lawful authority—like traffic regulations,
which arc reasonable, not because there is no alternative, but
because all must keep the same rule of the road.
This capital distinction between the rational evolution of
Natural Law and these artificial supplements of the Civil Law
prescribed by the State will be discussed in the next chapter.
Both classes entered into the civilized community. Part of
political justice, Aristotle noted, was natural, part legal—
natural, that which everywhere has the same force and does
not exist by people’s thinking this or that; legal, that which is
originally indifferent, but when laid down is so no longer.1 Civil
laws alone, and no others, were generated by the State. Even
there some ordinances proceeded from the agreement of
citizens among themselves and from their consent to custom;
they were not initiated by the Prince.2 Customary laws, said
Aristotle, have more weight and relate to more important
matters than written laws; a man may be a safer ruler than a
code, but not safer than custom.3 The stability of the State
depended on custom rather than on the art of the legislator?
The two however were related, and our next step must be to
consider the status of the legal sovereign with respect to the
natural needs of the political community.

5. Dominion a Natural Condition
A. J. Carlyle wondered how the curiously unhistoric reading
that political authority was founded on sin could have replaced
Aristotle’s sane and searching analysis? Wc may wonder, too,
how it became too firmly fixed in the theological tradition for
-er-■

■

—------ ““

THE NON-RELIGIOUS STATE

>47

rose from natural rightful needs, and public authority was
therefore the object and not merely the occasion of rational and
Christian virtue.
He was the first of the great Latin divines whose outward
deference to the powers that be was not more or less tacitly
accompanied with reserve, and even cynicism. They moved in
this world somewhat like Cardinal Consalvi at the Congress of
Vienna, courteous to the diplomats, loyal to engagements,
concerned mainly to preserve the freedom of organized religion
by reaching practical accommodations to existing forces, but
unimpressed by the improving and solemn rhetoric with which
politicians clothe their actions. A concordat might be hoped for,
and if struck would be observed, but such prelates were not
seriously convinced that the secular power possessed the intrinsic
power to promote virtue, let alone the inclination. When
religion was socially powerful the State could be harnessed and
prelates could curb potentates, but when secular policies became
ends in themselves and the means to implement them lay handy,
religion became a private association; its activity retreated
more and more into the domestic enclosure of the Church and
the inner fastnesses of the soul.
The apostolic injunction, submit yourselves to every ordinance of
man for the Lord's sake1 which had always been preached and
obeyed except by visionaries for whom Rome was Anti-Christ,
could appear grudging when Europe was Christendom and
political power was consecrated. No persecution of religion as
such was likely to arise, despite conflicts between ecclesiastical
and civil magnates. Still the old thcorv

146

THE JUS GENTIUM

their force not from their inner morality, but from the fact of
their enactment by lawful authority—like traffic regulations,
which are reasonable, not because there is no alternative, but
because all must keep the same rule of the road.
This capital distinction between the rational evolution of
Natural Law and these artificial supplements of the Civil Law
prescribed by the State will be discussed in the next chapter.
Both classes entered into the civilized community. Part of
political justice, /Vristotlc noted, was natural, part legal—
natural, that which everywhere has the same force and does
not exist by people’s thinking this or that; legal, that which is
originally indifferent, but when laid down is so no longer.1 Civil
laws alone, and no others, were generated by the State. Even
there some ordinances proceeded from the agreement of
citizens among themselves and from their consent to custom;
they were not initiated by the Prince.12 Customary laws, said
Aristotle, have more weight and relate to more important
matters than written laws; a man may be a safer ruler than a
code, but not safer than custom.3 The stability of the State
depended on custom rather than on the art of the legislator.4*
The two however were related, and our next step must be to
consider the status of the legal sovereign with respect to the
natural needs of the political conununity.

5. Dominion a Natural Condition
A. J. Carlyle wondered how the curiously unhistoric reading
that political authority was founded on sin could have replaced
Aristotle’s sane and searching analysis.6 We may wonder, too,
how it became too firmly fixed in the theological tradition for
the weight of St Thomas’s authority to shake it. Not that he was
a mundane moralist disposed to exalt the earthly city. The
bonum commune sensibile et lerrentum was below the bonum intelligibile
et coeleste. It was like the Old Jerusalem, not like Babylon, in
relation to the New Jerusalem.6 Political life and institutions
1 Ethics, v, 7. 1134 b 18-22. St Thomas, Zed.'12.
* ia-2ac. xcvii, 3, ad 3.
3 Politics, iii, 16. 1287 b 5-7.
4 ia-2ac. xcvii, 2, ad 1.
4 History of Medieval Political Theory, v, p. 6.
• ia-2ac. xci, 5.

THE NON-RELIGIOUS STATE

147

rose from natural rightful needs, and public authority was
therefore the object and not merely die occasion of rational and
Christian virtue.
He was the first of the great Latin divines whose outward
deference to the powers that be was not more or less tacitly
accompanied with reserve, and even cynicism. They moved in
this world somewhat like Cardinal Consalvi at the Congress of
Vienna, courteous to the diplomats, loyal to engagements,
concerned mainly to preserve the freedom of organized religion
by reaching practical accommodations to existing forces, but
unimpressed by the improving and solemn rhetoric with which
politicians clothe their actions. A concordat might be hoped for,
and if struck would be observed, but such prelates were not
seriously convinced that the secular power possessed the intrinsic
power to promote virtue, let alone the inclination. When
religion was socially powerful the State could be harnessed and
prelates could curb potentates, but when secular policies became
ends in themselves and the means to implement them lay handy,
religion became a private association; its activity retreated
more and more into the domestic enclosure of the Church and
the inner fastnesses of the soul.
The apostolic injunction, submit yourselves to every ordinance of
man for the Lord's sake1 which had always been preached and
obeyed except by visionaries for whom Rome was Anti-Christ,
could appear grudging when Europe was Christendom and
political power was consecrated. No persecution of religion as
such was likely to arise, despite conflicts between ecclesiastical
and civil magnates. Still the old theory persisted, that men were
divided between two opposed cities, the earthly and the
heavenly, and that the earthly city, while necessary to ensure
public security, was not charged with justice in the fullest sense
of the word. It offered a tarnished sort of good, but good
enough to go on with. St Augustine had not expected righteous­
ness and the true worship of God from civil government as such,
and Vincent of Beauvais, an older contemporary of St Thomas,
echoed the dualism. Political power, he said, was different in
Christians and in infidels for without the righteousness of grace
there was no true res publica. He allowed that pagan rule could
’ I Peter, ii, 13.

146

THE JUS GENTIUM

their force not from their inner morality, but from the fact of
their enactment by lawful authority—like traffic regulations,
which are reasonable, not because there is no alternative, but
because all must keep the same rule of the road.
This capital distinction between the rational evolution of
Natural Law and these artificial supplements of the Civil Law
prescribed by the State will be discussed in the next chapter.
Both classes entered into the civilized community. Part of
political justice, Aristotle noted, was natural, part legal—
natural, that which everywhere has the same force and does
not exist by people’s thinking this or that; legal, that which is
originally indifferent, but when laid down is so no longer.1 Civil
laws alone, and no others, were generated by the State. Even
there some ordinances proceeded from the agreement of
citizens among themselves and from their consent to custom;
they were not initiated by the Prince.12 Customary laws, said
Aristotle, have more weight and relate to more important
matters than written laws; a man may be a safer ruler than a
code, but not safer than custom.3 The stability of the State
depended on custom rather than on the art of the legislator.4
The two however were related, and our next step must be to
consider the status of the legal sovereign with respect to the
natural needs of the political community.

5. Dominion a Natural Condition
A. J. Carlyle wondered how the curiously unhistoric reading
that political authority was founded on sin could have replaced
Aristotle’s sane and searching analysis.5 We may wonder, too,
how it became too firmly fixed in the theological tradition for
the weight of St Thomas’s authority to shake it. Not that he was
a mundane moralist disposed to exalt the earthly city. The
bonum commune sensibile el terrentum was below the bonum inlelligibile
et coeleste. It was like the Old Jerusalem, not like Babylon, in
relation to the New Jerusalem.6 Political life and institutions
1 Ethics, v, 7. 1134 b 18-92. St Thomas, ltd. ’12.
* ia-2ae. xcvii, 3, ad 3.
3 Polities, iii, 16. 1287 b 5-7.
4 ia-2ae. xcvii, 2, ad 1.
8 History of Medieval Political Theory, v, p. 6.
« ia-2ae. xci, 5.

THE NON-RELIGIOUS STATE

H?
rose from natural rightful needs, and public authority was
therefore the object and not merely the occasion of rational and
Christian virtue.
He was the first of the great Latin divines whose outward
deference to the powers that be was not more or less tacitly
accompanied with reserve, and even cynicism. They moved in
this world somewhat like Cardinal Consalvi at the Congress of
Vienna, courteous to the diplomats, loyal to engagements,
concerned mainly to preserve the freedom of organized religion
by reaching practical accommodations to existing forces, but
unimpressed by the improving and solemn rhetoric with which
politicians clothe their actions. A concordat might be hoped for,
and if struck would be observed, but such prelates were not
seriously convinced that the secular power possessed the intrinsic
power to promote virtue, let alone the inclination. When
religion was socially powerful the State could be harnessed and
prelates could curb potentates, but when secular policies became
ends in themselves and the means to implement them lay handy,
religion became a private association; its activity retreated
more and more into the domestic enclosure of the Church and
the inner fastnesses of the soul.
The apostolic injunction, submit yourselves to every ordinance of
man for the Lord’s sake1 which had always been preached and
obeyed except by visionaries for whom Rome was Anti-Christ,
could appear grudging when Europe was Christendom and
political power was consecrated. No persecution of religion as
such was likely to arise, despite conflicts between ecclesiastical
and civil magnates. Still the old theory persisted, that men were
divided between two opposed cities, the earthly and the
heavenly, and that the earthly city, while necessary to ensure
public security, was not charged with justice in the fullest sense
of the word. It offered a tarnished sort of good, but good
enough to go on with. St Augustine had not expected righteous­
ness and the true worship of God from civil government as such,
and Vincent of Beauvais, an older contemporary of St Thomas,
echoed the dualism. Political power, he said, was different in
Christians and in infidels for without the righteousness of grace
there was no true res publica. He allowed that pagan rule could
11 Peter, ii, 13.

I48

DOMINION Λ NATURAL CONDITION

compose a concordia which was a social benefit in the civitas
terrena and worthy of respect; laws not conflicting with religion
were common to both pagan and Christian realms, yet there
were no full legal rights apart from Christian titles to them.1
The Sicilian law book, the Liber Augustialis, foreshadowed the
change that was to be brought about from the reception of
Aristotle’s political teaching; there Frederick II cleared his
title to rule away from any dependence on ecclesiastical ratifi­
cation or argument that sin must be remedied. He claimed a
stainless power which issued from the necessity of things and
was as needful as marriage for the continuance of the race. St
Thomas, born in his realm and from a family distinguished in
his senice, extended this claim to political authority as such.
It was more than an attempt to remedy a failure in the past, it
was a corollary of social human nature; it was not merely an
interim arrangement to mitigate the effects of sin or a police­
threat to potential criminals. The political order was beautiful
and worthy for its own sake. It was the opportunity, not the
trial, to Christian virtue, a means of grace as well as a civilized
convention. Its power was educational and health-giving, like
that of a teacher or doctor, and though it should be modest
about its ability to improve human character and should
consequently restrict itself to outward social justice, few
Aristoteleans would have agreed with John Stuart Mill that
religion was outside its sphere. Integration in the political
community was a condition of full virtue.2 At the root of tliis
difference from many of his contemporaries lay St Thomas’s
doctrine of Original Sin; he did not think that actual or
‘wounded’ human nature was profoundly unlike ‘pure’ human
nature—had it ever existed.3
His early writings showed traces of the Augustinist persuasion
that secular authority was a substitute for lost innocence; his
later writings were, as might be expected, more definitely
Aristoteleam Let us compare some texts, from the Commentary on
1 Speculum Doctrinale, vii, 3, 7.
3 ia-2ac. Ixxii, 4. xcii, 1.
BJ. B. Kors. La justice primitive et le péché originel d'après saint Thomas. Paris, 1930.
R. Xi. Martin. La controverse sur le péché originel au début du XIVt siècle. Louvain,
>930·

THE THINGS THAT ARE CAESAR’S

I49

the Sentences (1253-5) and on St Matthew's Gospel (1256-9) of his
early period, and from the Summa Theologica (1266-73) ar*d the
Commentary on the Epistle to the Romans (1272-3) of his maturity.
His exegesis of the text, Render unto Caesar the things that are
Caesar's and to God the things that are God's started with the literal
sense.1 A coin was produced: Whose image and superscription is
this? asked our Lord, as though to say that what you are and
what you use are God’s and Caesar’s, for natural riches, such as
bread and wine, arc from God and to be offered to Him, while
artificial wealth, such as money, is from Caesar who must be
given his due. He then turned to the allegorical sense. Our soul
is made to God’s image and must be rendered to him, yet the
world puts its stamp on us, and wc must accept it peaceably.
Even holy men lifted above mundane cares, he added, have to
mix with their fellows and pray for the life of Nabuchodonosor the
king of Babylon andfor the life of Balthasar his son, that their days may
be upon earth as the days of heaven.1
2
The Commentary on the Sentences cited the same text to support
civil obediancc to properly constituted authority and adduced
another.3 What thinkest thou, Simon? of whom do the kings of the
earth take tribute? of their own children or of strangers? Peter saith to
him, Of strangers. Jesus saith unto him, Then are the children free.4
Was this a suggestion of the existence of two classes of men, the
ordinary run of Christians tributary by birth to the secular
power and an elite exempt by reason of their apostolic life, who
were neither slaves subject to service nor owners with posses­
sions liable to taxation ? Nothwithstanding, the passage continues,
lest we should offend them, go thou to the sea, and cast an hook, and lake
up the fish that first cometh up; and when thou hast opened his mouth,
thou shallfind a piece of money: that take, and give unto them for me and
thee.3 The irony was not lost on the Augustinist theologians.
Civil power was artificial like money, reflected St Thomas, and
notwithstanding the fact that some compromises were unavoid­
able, men were freed from its exactions to the extent that they
embraced the life of perfection.
1 Matt, xxii, 21. In Evangelium Lectura, xxii (b).
* Baruch, i, 11.
'II Seni. XLIV, ii, 2, ad 1.
4 Matt, xvii, 25-6.
6 Matt, xvii, 27.

Ï50

DOMINION A NATURAL CONDITION

Dare any ofyou, wrote St Paul, having a matter against another,
go to law before the unjust, and not before the saints?1 More had been
read into the text than the simple advice to avoid civil litiga­
tion. Did it not question the foundations of earthly power? St
Thomas for his part was content with the pragmatic reasons
which prompted it. If the faithful submitted their secular
concerns to infidel authority unsanctificd by the sacraments of
the faith, then Christian authority and the dignity of Christian
men would be impugned, religion itself brought into disrepute,
and occasion offered for calumny and persecution. Noting St
Peter’s injunction to the faithful to submit themselves to every
ordinance of man for the Lord's sake,12· he concluded that St Paul
was not disapproving of obedience when summoned to appear
before a secular non-Christian court, but of voluntary recourse
and submission to it.
Nevertheless the treatment of civil obedience in the Com­
mentary on the Sentences, included in the section significantly
entitled de potentia peccandi by Peter Lombard, freed its essential
character from involvement with sin. Would lordship have
existed in a state of innocence? The answer drew a distinction
between two modes of rule, one well disciplined, praelationis
modus ad regimen ordinatus, the other domineering, ad dominandum.3
Rule for the profit of the ruler was well enough when exercised
over animals—incidentally it was held that the Fall has weak­
ened our mastery there—but thoroughly evil when men were
concerned. A political tyrant was like a slave-owner.4 Rule for
the profit of the ruled was justifiable, however, and for three
reasons; firstly, ad dirigendum subditos in his quae agenda sunt, in
order that people might live together in well-ordered and
disciplined agreement; second, ad supplendum defectus, that they
might be defended by the prince; third, ad corrigendum mores,
that wrongdoers might be forced to behave decently. The
second and third reasons supposed the fact of sin, but the first,
based on congenital inequality, carried on Plato’s and Aris­
totle’s thought, that wisdom should be the ruling force and that
11 Cor., vi, i.
21 Peter, ii, 13.
3 II Sentences. XLIV, i, 3.
4 Ethics, viii, 10. 1160 b 30. St Thomas, lect. to.

RIGHTS OF NON-CHRISTIAN RULERS

I5I

its possession brought the responsibility of governing others not
so well endowed, secundum quod unus alio munere sapientiae et
majori lumini intellectus praeditus fuisset.
Soon he was to begin the Summa contra Genies (1259), of
which the second book pictured a hierarchic universe composed
of things diversified in kind and degree, beautiful modo, specie et
ordine.1 Men also were born unequal; their inequality was not
caused solely by environmental factors originating from sin. It
was not as the Augustinists thought, so in a sense foreshadowing
in social theory the biology of Lysenko, that conditioning is
what chiefly matters; on the contrary, human beings were not
all entirely composed of the same homogeneous stuff which
could be fashioned to this style or that—or victimized in this
way or that—by outward circumstances which sufficed to
explain their differences. Their social aptitudes were innately
various. Qualities of leadership were uneven, and here tem­
perament counted for much. Political subordination, therefore,
was not based only on historico-thcological accidents, but also
on the social nature of dissimilar human beings; hence the
moral right to rule could be ascribed to secular power as such
and, at least in the abstract, be examined without reference
either to the Christian theology of the Fall or to the existing
system of Western Christendom in which could be found only
the rudiments of State authority as we know it.
The changing situation brought the matter to a head.
Christian men were faced with what for them were new prob­
lems. Abroad they were falling under non-Christian sway, and
it was asked, Were they religiously bound to obey? At home
Church and State were slowly becoming more separate, and it
was asked, To what extent did the secular ruler enjoy rights
which were properly his own ?
Eastern territories long Christian had been taken by Moslems,
and their rule was sometimes tolerant and—more so in the case
of the Arabs than of the Turks—enlightened. Did their subjects
owe them allegiance? It was a practical issue. Hostiensis took
the line that since the coming of Christ all principality and
jurisdiction had in principle been taken from infidels and
1 On the Truth of the Catholic Faith. Book II : ‘Creation.’ Tr. J. F. Anderson. New
York, 1956.

I52

DOMINION A NATURAL CONDITION

handed to the faithful; he admitted, that in practice it might
be prudent to let sleeping dogs lie. Giles of Rome contended
that infidels had no legitimate title to their possessions. For
clerics to hold that you were not bound to keep faith with
Saracens was current form. Yet the inhabitants on the spot
could not afford such detachment, and the Latin States in
Palestine, despite chronic war and frequent treachery, and the
Eastern Empire itself were often on courteous terms with their
neighbours. Christians did not hold aloof from them: as the
Ada for his canonization bear witness, St Dominic was very
much at case with Moors and Jews in all human relationships.
The missionary' friars, penetrating through the belt of Islam,
acknowledged the rights of rulers among the Mongol and other
peoples they hoped to convert or turn into allies. This deference
was less noticeable in Spain and the Baltic lands where
Christendom was expanding, the scenes of wars of religion
where the rights of Christian conquest were taken for granted
and without the scruples which theologians expressed two or
three centuries later during the colonization of Central and
South America.
Nearer home within Christendom itself the secular power
was emerging complete with its own proper claims. When
asked from whom he held the Empire if not from the Pope,
Barbarossa replied, ‘From God alone.’ He was not to make
good his claim during his own lifetime, but before the end of
the conflict between Pope and Emperor, the clerical arguments
that all authority was subject to ecclesiastical control were
counter-attacked by the argument that the secular order pos­
sessed its own inalienable power, responsible to God’s judgment
and its own laws, but not to priests. The movement was success­
ful even in those countries where the Papacy had acquired
special rights by agreement, as indeed in two of the most
politically advanced realms in Christendom, namely Sicily
where the king acknowledged the Pope as his suzerain and was
his legatus natus, and England which John had surrendered in
1213 and then received back from the Roman Church as a
feudal dependent. These transactions had been clothed in
religious terms but were not generally treated as belonging to
divine law.

CIVIL POWER NOT ECCLESIASTICALLY DERIVED

153

The claims of the political Canonists grew more extravagant
as their effective power waned outside the Church; they were
defeated by events as much as by a rival philosophy. Once the
Nation States had succeeded the Holy Roman Empire and the
Holy See was felt to be Italian in its personnel and policies, the
tide of events flowed against them. Then, too, although they
may have claimed that their utterances were semi-inspired by
the Pontifical Court, they lacked the solid support of the
theologians of the centre who were not inclined to grant
unlimited earthly dominion to the Pope. Christ himself who
was the king of everything and possessed the universalis judiciaria
potestas had not subjected all human affairs to it quantum ad
executionem.1
Innocent IV, a moderate when he argued for the supremacy
of the spiritual power, had disavowed any intention of disturb­
ing existing rights fairly established though without recourse to
Church ratification. St Thomas clearly laid down that grace
offered no violence to the order of nature; consequently true
human rights constituted apart from official religion were to be
respected, though the Church should not allow infidels to
acquire dominion over Christian men, and possessed the power
of releasing slaves on their conversion to the Christian faith.2
When he spoke in passing of kings being the vassalli Ecclesiae he
cither had in mind certain special cases or used die word in an
untechnical sense in contrast to the days of persecution quando
astiterunt reges adversus Christum.3 The enfant terrible of the
Dominicans, Durand of St Pourcain (d. 1332), usually so
critical of him was his ally here, and agreed that legitimate
power could be vested in non-Christian rulers and should be
accordingly maintained.
That political authority was grounded on the social nature of
man appeared more emphatically in his later writings. There
also the dignity of power was enhanced. The Summa Theologica
repeated the question, put forward in the Commentary on the
Sentences, Whether in a state of innocence man would have been
1 3a. lix, 4, ad 2.
’ 2a-2ae. x, 10.
* XII Qundlibets, xiii, 19, ad 2.

154

DOMINION Λ NATURAL CONDITION

subject to human power?1 The same distinction was drawn
between the government of slaves for the benefit of the governor
and the government of freeman for the benefit of the governed.
It was developed in the de Regimine Principum.2· For a man to
cede his freedom and the disposing of what is his own was
grievous, contrislabile\ that could only be penal and the result
of sin. But that he should be politically subordinate, for his own
sake and that of the common good, was no derogation from
his dignity. At first sight this may seem rather tame, an
obedience to an enlightened and benevolent prince far removed
from a critical and sturdy radicalism. From a closer reading of
the texts, however, it is clear that the subordination to the
common good did not spell subservience to a group but
personal and responsible sharing in social purposes and
decisions.
These transcended private interests, which would still have
had to be controlled even were there no disorder due to sin.
Neither self-interest nor the profit motive was inherently
vicious. It was in the nature of things that private advantage
might be a public danger that could be accepted with
equanimity and then controlled. The reverse was also true,
according to the motto on the common seal of the Stockton and
Darlington Railway, periculum, privatum utilitas publica. Stresses
were inevitable in any community composed of heterogeneous
parts. One man was endowed with knowledge and public zeal
superior to that of his fellows and it would be awkward, St
Thomas remarked, if he did not use his abilities for the benefit
of others. He quoted St Peter’s advice, that we should be good
stewards of the manifold grace of God, ministering the same one to
another·, then, characteristically pillaging the Egyptians, he took
St Augustine’s saying, Not lust of power moves the great man,
but the office ol counsel, thus has nature’s order prescribed,
and man by God was thus established.3
Such was the argument of the Prima Pars. Two years later
when the Secunda Secundae turned to domestic life and private
property it recognized that physical compulsions inflicted and
1 i a, xcvi, 4.
1 ii, 9. iii, 19.
• I Peter, iv, 10. de Civitate Dei, xix, 15.

155
endured were penalties of the Fall. That the man must sweat
at the unfruitful soil, the woman labour to deliver a child
and put up with the moods of the husband, all these were
curses and the consequences of sin. Nevertheless at a deeper
level human nature as such was essentially committed to and
engaged with the powers of the material world: sick pain was
one thing, physical effort another. Man’s dignity as a maker
demanded that he should be a worker—this was his title to be
a property-owner. Similarly it was a woman’s dignity to be a
mother and obedient to her husband. Child-bearing, St
Thomas guessed, would have been painless and domestic
intercourse ‘polite’ in a state of innocence, but he did not share
Alenin’s opinion that no thorns would have grown then, but
thought there would have been wild flowers but no weeds, that
is, plants where they were not wanted.1
The same distinction, between an essential condition and a
particular mode of it due to sin, entered his inquiry on private
property. As political power had acquired a coercive character
so private property had acquired a certain exclusiveness; social
institutions had come to terms with selfishness. iMoreovcr,
positive laws have rightly determined detailed arrangements
for the transmission and retention of property, leaving intact
the principle that the root of human ownership lay deeper and
grew from man’s need and duty to assume responsibility. Man
was an artist made to God’s image, and, though he cannot
create in the strict sense of the word, he was called to make
things grow , through his own initiative. Some kind of right to
property resided in the individual not granted by the organized
group, and here some anticipation may be detected of Locke’s
teaching of the pre-social and inalienable right of freeholders. Its
extent, here more here less, was to be settled by social authority.
Less academically communist than those divines who
saw behind the present city the image of a classless com­
munity where everything was shared in common, St Thomas’s
prescriptions were neither so deep nor so far ranging as were
12a-2ae. clxiv, 2. c &. ad 1.
INFLECTIONS OF POWER BY SIN

For the subjectio civilis of woman to man, the caput and gubernator sec ia. xcii, I,
ad 2. xciii, 4, ad 1. 2a-2ae. Ixxvii, 2.
For women’s exclusion from civil and political office, see IV Sentences XXV, ii,
1. ta—iae. cv, 3, ad 1.

156

DOMINION A NATURAL CONDITION

those of some of the Franciscans. Vowed poverty was a counsel
of religious perfection and communism was a good system for
specially dedicated groups to choose. The value of personal
administration, potestas procurandi et dispensandi was insisted on,
yet the enjoyment of the fruits of the earth should be for ail. He
shocked some of his contemporaries by maintaining that a man
in dire necessity did not steal who helped himself from another’s
goods.1
The same paradox appeared when slavery was the topic.
With Aristotle he calmly accepted the fact that men were born
socially unequal in their abilities, opportunities, and vocation.
That followed because psychological qualities were so closely
bound up with organic conditions.2 One might there expect
him to have been rather more tolerant than an Augustinist
about slavery: after all did not its origins lie in the nature of
things and was not sin responsible only for its cruelty and
incidental abuses? On the contrary, he was less inclined than
the Fathers to excuse its continuance.3 Some things arc best
tackled when you enter into their strength and not let them
pass. Social theology is like politics, it needs men who will
wrestle with the here and now and not escape into the hereafter.
One weakness of ‘other worldly’ schools of theology is to dis­
courage the spirit of social reform by assenting too easily to bad
social conditions on the grounds that the city of this world is
anyhow a compromise with evil, and that there is little to be
done about it except to keep oneself uncontaminated. Passive
non-approval easily turns to condonation.
St Thomas inherited the temper of the early Middle Ages.
Disobedience was the right answer to the precepts of wicked
power. Towards the end of his life he seemed to grow more
guarded against the least hint favourable to rebellion, without
however approaching Cranmer’s position, that if the prince be
wrong then it is for God alone to punish him. The Lutheran
1 2a-2ae. Ixvi, 2, c & ad 1. 7. xxxii, 5, ad 2. Ivii, 3. Il Politics, led. 2, 4.
A. Horvath. Eigentumsrecht nach den hl. Thomas ivn Aquin. Graz, 1929.
C. Spicq. ‘La notion analogique de dominium et 1c droit de propriété.’ RSPT,
«93«. PP· 52-76.
* i a. Ixxxv, 7.
’ I a. xcvi, 4. ia-2ae. xciv. 5, ad 3. 2a-2ae. x, to. Ivii, 3, ad 2. civ, 5. clxiv, 2. II
Sentences, XLIV, i, 3. For slavery and marriage, II'Sentences XXXVI, i, 1-3.

POWERS ORDAINED BY GOD

X57

doctrines of submission to the powers that be and the denial of
the Church’s power to judge the actions of the earthly sovereign
would have appeared to him strange. Usurped authority or
unjust decrees deserved no obedience, except per accidens, in
order to avoid scandal or the danger of worse happening.1 For
it was wrong to bring the principle of civil authority into
disrepute, and wrong also, though not technically the sin of
sedition, to overthrow a tyrant if the people were likely to suffer
more from the consequent disturbance than from his misrule.2
His last passage on civil dominion appears in the exposition
of the Epistle to the Romans written towards the end of his life.
Let every soul be subject unto the higher powers. For there is no power
but of God: the powers that be are ordained of God. Whosoever
resisteth the power, resistelh the ordinance of God: and they that resist
shall receive to themselves damnation.3 Some early Christians, he
commented, urged that they were not subject to earthly power
because of the liberty Christ had brought them. They were
mistaken, however, for this liberty was of the spirit, a freedom
from the law of sin and death. Our flesh was still in subjection;
wc can but await a freedom both of spirit and body, when Christ
shall have delivered all the kingdoms to God the Father, when he shall
have brought to nought all principality and power:* Until then, so long
as wc are clothed with corruptible flesh wc must submit to bodily
masters : servants, be obedient to them that are your lords according to
the flesh.3 The ‘higher powers’ of the text were men constituted
in power to whom wc should be subject according to the order
of justice. St Paul spoke without qualification—the term higher
should be taken unrestrictedly, and he meant that we were
their subjects because of their high office, even if they were
evil. Hence St Peter said, Servants, be subject to your masters, not
only to the good and gentle, but also to the forward.6 For all power
was from God, even as our Lord reminded Pilate, Thou couldest
have no power against me, unless it were given thee from above.1
The words of the prophet, They have reigned but not by me; they
have been princes and I knew not,9 were no rebuttal of this teaching,
he went on to say. For there were three ingredients in the
1 2a-2ae. civ, 6, ad 3.
* 2a-2ac. xlii, 2.
* Romans, xiii, 1-2.

« I Cor., xc, 24.
· Ephesians, vi, 5.
· I Peter, ii, 18.

T John, xix, t t.
· Hosea, viii, 4.

158

DOMINION A NATURAL CONDITION

power of a prince, or of any dignitary: the power itself, which
was from God; Lhc mode of acquiring it, which was from God
when it was obtained in due form, but not otherwise; its exer­
cise, which was from God when the precepts of divine justice
were observed, but not otherwise. The subordination of lower to
higher was permeated with divine purpose. Hence to resist
proper authority was against virtue, and obedience and sub­
mission were necessary both for decency and for salvation.1
Little room for civil disobedience was allowed by such
doctrine. Two theories on the origin of sovereignty which have
been held by followers of St Thomas help to illustrate the shift
of emphasis between his early and his late writings. According
to the sixteenth-century ‘Translation Theory’, expounded by
Cajctan, Vitoria and Dominic Soto, the right to govern was
transmitted to and vested in a ruler by the explicit choice or
tacit consent of the people, who must then obey so long as his
power was not forfeited by breach of contract and violation of
the constitutional laws. Suarez, too, was of this opinion, though
his studies served as a bridge to the nineteenth-century
‘Designation Theory’ put forward by Thomists of the revival
inaugurated by Leo XIII. To such writers as Liberatore,
Zigliara, Cathrein, Schwalm and Billot the people’s choice did
not of itself constitute that form of government called democ­
racy, which, therefore, was no essential part of Natural Law.
The government originally established by a kind of election
might take other forms, and was henceforth to be obeyed even
though it might not be representative according to formal
suffrage or even when it appeared unpopular.*2
Both sides have appealed to St Thomas for support, the first
probably on better grounds. His convictions have to be con­
strued, for he was confronted with the doctrine neither of the
Divine Right of Kings nor of the Sovereign People. The
sentiments they have evoked arc not easily run into his political
scheme of things.3
’ Expolitio in Romanos. xiii, lect. I.
* G. Bowe. The Origin of Political Authority. Dublin, 1955.
3 ta-aae. xc, 3. xcvii, 3, ad 3. de Regimine Principum, i, 6. Y. R. Simon. ‘The
Doctrinal Issue between the Church and Democracy.’ The Catholic Church in
World Affairs. Ed. W. Gurian. Notre Dame, 1954.

VI
A DRAFT FOR THE JURISTS
EGAL or positive right was based on natural right.
Cicero was quoted to this effect by the thirteenth-century
. L_ywriters.1 All belonged to the ‘Natural Law School’, not
that they necessarily held that the Natural Law was an organic
system of legislation to which Positive Law could be compared
as inferior to superior, as tactical plan to strategical design.
But they required human legislation to respect lawful values
which it did not itself create. These were the social premisses
of the good life, emanating from God’s Eternal Law, discovered
in nature and confirmed and heightened by Revelation. The
Natural Law taken alone scarcely composed an effective corpus
of precepts. Do to others as you would be done to yourself—the
maxim did not take you very far. Its negative variant, do not
do to others what you would not have done to yourself, adopted
in King Alfred’s code, was sharper and more effective.
General moral principles and goodwill were too shapeless to
give bone for the moral life either of the individual or of the
group. Definite conclusions and decisions had to be come to
about theft, for instance, or sexuality outside marriage. These
constituted a set of derivative precepts of which the human
reason had no original intuition and to which the human will
had no instinctive bent. They were reached only by deliberation
and effort not by inclinatio naturalis, and held only by instructed
good-sense. Such were the judicious ordinances which held a
community together, the social contrivances or utilia ad bene
vivendum.2
Furthermore, merely as statements even these remained
academic so long as they were not carried into practice.
Thereupon they, like the rules of statesmanship, were involved
with contingency and contrariness. Enlightened doctrines may
produce conflicting policies, as happened to the British between
the two World Wars when they supported self-determination
1Sce V Ethics, lect. 12. la-sae. xci, 3. xciv, 2.
’ la-eae. xciv, 3.

159

l6o

A DRAFT FOR THE JURISTS

for the Arabs and a national home for the Jews and ended by
losing control of the Suez Canal. The application of social
morality varied according to circumstances. Alternative ways of
implementing its purposes could also present themselves.
Granted that men should be responsible owners and masters of
their life, several methods lay open for regulating the acquisition
and exploitation of property; in order to ensure conformity in
the group, legislation was necessary which enacted the form, or
forms, to be accepted by all.
At this stage entered a special act of legislative and political
will. Its precept was not drawn from the resources of the
Natural Law but superimposed on them. From the point of
view of moral science it was not a conclusion but an addition.
It was like a work of art, justified more by its success than by
the evidence of ethical principles. Of course as a practical
measure it was expected not to thwart ultimate moral purposes,
for what is the use of anything that does not conduct us to
happiness? To this extent moral science and religious belief
should exercise a negative control over law-making and politics.
Yet neither could provide the immediate and pragmatic tests,
neither was so on the spot that it could tell us what laws
should be enacted and what policies pursued in order that the
population should be at once secure and mettlesome, contented
and honourable, neither over-disciplined nor lacking in public
spirit.
Customs and fundamental laws were woven into the social
fabric. They had to be preserved were the community to keep
its traditional identity and inherited way of life. But they did
not serve to meet every new circumstance. Adaptations, altera­
tions and additions were called for, and it was in the deliberate
framing of these by statute and in the execution of the improvi­
sations necessary for the needs of the State that our governors
needed a special technique, ars, and practical wisdom, prudentia.
Here their decisions are their own, and they must have the
courage of them.
Talk is not enough, nor high-minded protestations, nor
gestures expressing the national spirit. Only the functions of
making and doing, as opposed to demonstrating what is right
and patriotic, take us into the proper field of human law

LEGAL SYSTEM OF REFERENCE

l6l

and politics. St Thomas seems to have been the first Christian
moralist who appreciated the fact. Let us consider then his
grant of limited autonomy to juridical and political action, and
first with respect to the positive lawyers.1
The threat of too much law, of which he was well aware,
arose in his day less perhaps from the Civilians than from the
Canonico-Moralists who, like modern Welfare-State officials,
already disclosed their addiction to nagging. The entrance of
more and more legal forms into theology, particularly into
moral theology, served many good purposes, but when too
many came crowding in theology' itself scarcely had room to
breathe. His dislike for the intrusion of Decrctalism into
theology has already been noted,2 also his detachment from the
ambitions of the political Canonists, though he was high in the
counsels of the Curia. The two Popes he served and with whom
he was familiar, Urban IV and Clement IV, were both French
administrators of great experience who had made their reputa­
tions outside the Court of Rome; Clement had been a civil
lawyer, adviser to St Louis of France and a married man before
embracing the clerical state.
From the nature of his writings he had more frequent occa­
sion to appeal to the Canon Law than to the Civil Law, but it
was usually on minor points. The Summa Theologica and Contra
Gentes between them contain 193 references to Gratian’s
Decretum and sixty-one to Justinian’s Institutes, seventeen to the
Digest, thirteen to the Codex, and none to the Novellae. His
entire works include but 155 references to the Corpus Juris
Civilis. While he maintained the dignity of the Roman juridical
order, he used its Law mainly as a practical system of reference.
Some of its notions were worked into his synthesis, for instance,
servitus, status, legimatio, and adoptio.3 But so also he borrowed
from the Lombard Law. The influence on him of the Roman
Law was not to be compared with that of Aristotle.
Without descending to details we may observe the general
bearing on social morality of the Roman Law taken in both its
1 F. Olgiati. Il concetto di giuridicità in San Tommano <TAquino. Milan, 1944.
L. Lachance. Le concept de droit selon Aristote el saint Thomas d'Aquin. Ottawa, 1948.
P. M. van Ovcrbeke. De relatione inter ordinem juridicum et moralem. I-ouvain, 1934.
* Contra Retrahentes, 13. 2a-aae. Ixxxviii, 11. XI Quodlibels, 9, ad 1.
’ J. M. Aubert. Le droit romain dans Γoeuvre de saint Thomas. Paris, 1955.