Brian Tierney

The Origins of Modern Freedom in the West

If a people adhered to a custom that was contrary to the ruler's law—thereby in effect withholding their assent to the law—should the custom or the law prevail? Thomas Aquinas, discussing this question from the standpoint of a theologian rather than a jurist, held that, in a free community, the consent of the people was of greater weight than the authority of the ruler. The lawyers themselves were always divided on this issue; in the fifteenth century they were still arguing about Gratian's twelfth-century text and interpreting it in various ways. Some of them defended the overriding authority of the ruler. It would seem absurd, they held, that the authority of a law should depend on the will of the subjects who were bound by it. Others argued that, since a ruler would not wish to impose a new law on an unwilling people, it could be presumed that all laws were issued with the tacit condition that they found popular acceptance. Jean Gerson, a leading theologian of the conciliar movement, cited Gratian's text to prove that the whole church could limit and regulate the exercise of papal power. One persistent canonical argument distinguished between de jure and de facto power. De jure, a ruler might promulgate what laws he pleased, but de facto they would not take effect unless they were accepted by the people.

A similar problem arose in another major area of theory and practice involving consent—the right of consent to taxation. Medieval kings who wanted to levy new taxes commonly negotiated in advance with their barons and the communities of their cities. Whatever a king imagined his de jure powers to be, he knew that he could not de facto collect the tax effectively unless he first obtained the consent or at least the grudging acquiescence of those who were to pay. But, apart from such pragmatic considerations, there were issues of principle involved too. Medieval people did not feel obliged to pay arbitrary taxes because they had a strong sense of their own property rights, rights that were justified both by customary law and by the learned law of the civilians and canonists.

From the twelfth century onward Roman lawyers argued that the emperor's role as dominus mundi, lord of the world, did not make him the owner of his subjects' property. The canonist-pope Innocent IV (1242-54) added that a city government could not arbitrarily deprive citizens of their goods because property was a right based on natural law. Then, in 1302, John of Paris gave a careful explanation of property rights in relation to governmental authority. In the church, ownership was vested in the whole Christian community and the pope was the principal administrator—but not the owner—of church property. In secular society a king did not have even this degree of authority; lay property did not belong to the community as a whole but to individual persons, who acquired it 'through their own skill, labor and diligence' and, as individuals, possessed 'right and power over it and valid ownership.' A king had jurisdiction over disputes involving his subjects' property; but, John pointed out, jurisdiction was quite different from ownership.

In these passages John relied in part on an earlier discussion by Godfrey of Fontaines, a Paris theologian who was writing in the 1280s. Godfrey's text included an explicit argument about the right of consent to taxation as an essential attribute of a free society. According to this author, when anyone ruled over free persons and not over slaves, and when he held the right of ruling by virtue of the consent of the whole community, he ought not to impose any burden on his subjects except with their consent. Because they were free persons the subjects ought not to be coerced. When they paid a tax they should do so voluntarily because they understand the reason for the imposition. It was not enough for the ruler to say that he was levying a tax for the common good or by reason of state necessity; if he did not seek consent of the subjects they were not obliged to obey.'

In the late Middle Ages the consensual practices that permeated the upper levels of medieval society were often transmuted into generalized theories asserting that all legitimate government must be based on the consent of the governed. One finds this doctrine diffused among many writers who, in other matters, sharply differed from one another—among radicals and conservatives, critics and defenders of the papacy. We tend to associate the idea of consent in this form with seventeenth-century theorists like Locke and Hobbes, but much earlier it had become a common topos of late medieval thought. Of course medieval authors believed that all authority came ultimately from God, as indeed did the seventeenth-century writers; the question at issue was how God's purpose was fulfilled on an earthly level. One writer of the early fourteenth century, Durand of St. Porcain, after asking how temporal power arose in the first place, responded that God had initially planted reason in man and that human reason then saw the need to institute governments. And John of Paris summed up a common point of view in a succinct formula. Royal power, he wrote, came 'from God and the people.'

The most noted consent theorist of the fourteenth century, Marsilius of Padua, associated his doctrine of consent with a radical secularism in the treatise Defensor Pacis, written in 1324. Blending together ideas derived from Aristotle and from the practices of contemporary city-republics, he wrote that there were two criteria of healthy government: the ruler must rule for the common good and he must rule over willing subjects. Then Marsilius added, 'but absolutely and in greater degree it is the consent of the subjects which is the distinguishing criterion.' For Marsilius consent was the 'efficient cause' of government. Of course all power came ultimately from God as a remote cause, he acknowledged, but God operated through human minds and wills in establishing political authority. The laws that guided a community's life were to be instituted by consent of the whole body of the citizens 'or its weightier part.' This was because the state was a community of free persons; they should not be subjected to slavish domination; but if one or a few citizens could impose laws on all the rest, such rulers would be acting like despots. Moreover, the people would more readily obey when each person seemed to have set the law on himself.'

All this argumentation about political society was contained in Book I of the Defensor Pacis. In Book 2 Marsilius turned to the church. Here his views were revolutionary. All orthodox writers of the time agreed that Christ himself had conferred jurisdiction, the power to govern the church, on Peter and on future popes as Peter's successors. It was commonly held too that bishops and priests, as successors of the twelve apostles and seventy-two disciples, shared in a jurisdiction originally bestowed by Christ. Marsilius denied all this. The power that Christ conferred on Peter and the apostles was simply a power to administer sacraments, he held, and this power was equal in all priests (including the pope.) Peter was not granted any coercive power over the church by Christ, and even if we were to assume that the apostles conferred power on him by electing him as their leader, this would not imply that his authority descended to later bishops of Rome. Indeed, Marsilius observed, scripture provided no evidence that Peter was ever at Rome at all. Priests and bishops were subject to the coercive power of the government instituted by the people; and any coercive power they themselves possessed, like the power to excommunicate, came to them as a grant from the Christian community or from the government acting on behalf of the community. In effect Marsilius was arguing that the ecclesiastical hierarchy was a human contrivance, not a divinely ordained structure, and that the church was essentially a department of the state.

Marsilius's ecclesiology was revived in the sixteenth century when his antipapal arguments appealed to some Protestant thinkers. In his own day his work was promptly condemned by the church. But it was only his specific teachings on church authority that were singled out for censure. The argument of Book I of the Defensor, dealing with consent to government in general, did not evoke any criticism. This is not hard to understand. In this part of his work, the part that most interests modern historians of political theory, Marsilius was expressing a commonly held opinion of his age, one that was shared by many orthodox thinkers. We can illustrate the point by turning finally to a contemporary of Marsilius, the Dominican Hervaeus Natalis. Hervaeus was a theologian of Paris who became master-general of his Order. He was an exceptionally staunch supporter of papal sovereignty in the church, the exact opposite of Marsilius it might seem. Yet, writing a few years before the Defensor Pacis appeared, he too presented a systematic argument that all licit government must be based on consent of the governed.