Corporation Theory

Medieval ecclesiological discussions are permeated with monarchical ideas about the nature and structure of the Church. But in keeping with the basic theme that winds throughout the Middle Ages of a “dualistic” authority Tradition it should not be surprising that as the debates of the High Middle Ages progressed another kind of ecclesiology came to be formulated on the basis of principles equally inherent in the Tradition as monarchical absolutism. This other kind of ecclesiology may be conveniently introduced under the heading “corporation theory.”

The earliest form of corporate thinking for Western Christendom came as a consequence of merely Roman legal thought. As the Gospel permeated Roman culture, it naturally took up what it found there and transformed it. The Christian notion that baptism fundamentally changed natural man into spiritual man was easily combined with the existing recognition that individual men were inextricably part of a larger totality, a larger society (societas). Consequently, a society of Christian individuals would be a Christian society (societas Christiana). Roman legal thought was well disposed to understand corporate bodies. As Walter Ullmann describes the Christian Roman ethos,

this corporate union of all Christians, that is, of all those who were baptized, constituted the Church, and on the easily available Roman law model this society was endowed with corporative qualities. The totality of all Christians was said to form the corpus Christi. It was a body which exhibited all the features of a Roman corporation and to which all the corporation principles laid down in Roman law were applicable. It was, moreover, a closely integrated body, in which any injury done to one member would redound to the detriment of the whole. Hence, just as the individual Christian was an indivisible unit, one totum, so was the corporate union of all Christians indivisible and one whole. The one and only element that held this body together was the Christian faith and adherence to the norms deducible from it…Its members pursued all the ordinary occupations, but-and this is the crucial point-they were to order their lives in accordance with norms and standards which were not of their own making.:”(Walter Ullmann, Principles of Government and Politics in the Middle Ages [London: Methuen & Co. Ltd., 1961], pp. 33-34.)”:

Such thinking, whether it was explicitly stated or merely assumed, underlay all of Medieval thought. To degrees it would be obscured by the fall of the Empire and the long night that came after, but with the recovery of Roman jurisprudence in the early twelfth century a renaissance of corporate thinking could not help but be prepared. Indeed, a later iteration of Christian corporate thinking came with the twelfth century’s alteration of the reference points of received sacramental language. From the patristic age to the Carolingian age the Church had been referred to by the term “the true body of Christ” (corpus Christi verum) and the Eucharist by the term “mystical body of Christ” (corpus Christi mysticum). However, driven by furious controversy over the nature of the Real Presence from the ninth century through the early twelfth, a nearly precise reversal of this terminology came about. Canon lawyers and jurists from the lay level to the See of Rome began to conceive of the Church and the societas Christiana over which she presided to be “something akin to a legal corporation” and a “moral and political body” (corpus morale et politicum).

This “politicization” of the Church was soon combined with developments in philosophy and canon law. The thirteenth century provided an original contribution to jurisdictional theology, namely, the distinction between “power of ordination” (potestas ordinis) and “power of jurisdiction” (potestas jurisdictionis). Moving beyond this, canon lawyers began to make a further distinction within the potestas ordinis: the distinction between “power of jurisdiction in the internal forum” (potestas jurisdictionis in foro interiori) and “power of jurisdiction in the external forum” (potestas jurisdictionis in foro exteriori). What this language means is that the rights inhering in the office of an ecclesiastically-ordained man extend not merely to explicitly “spiritual” duties but even to intervention in the “secular” political order. In the case of the pope, his claims to “fullness of power” (plenitudo potestatis) automatically trump every other prelate’s and king’s power in the secular sphere. Not only does this tend to entail the collapse of the ancient distinction between “original” and “appellate” jurisdiction. As well, in the context of separation from the Eastern Church, the magnification of “papal approval” from its original sense of the strong respect-oriented desire to obtain the agreement of the “first among equals” Patriarch for actions pertaining to the whole Church easily becomes the demand that that Patriarch, now the only one in a “the Church” that has been rhetorically and functionally reduced to the Catholic West, has the sole and unquestionably final right of judging any case in which he is sovereignly pleased to intervene. The corporate body of the Church is reduced, thereby, to the desires of its head.

In the further context of political and theological developments in the thirteenth century, the “power of jurisdiction in the external forum” became a major weapon in the papalist arsenal and a major cause of increasing disruption of Western Christendom. For at about this same time a new concept of “the Church” began to be circulated as a result partly of philosophical currents and partly of speculations on the sacraments and their “mystical” meanings. On the basis of the Augustinian conception of Realism (the philosophical view that “Universals” are more important than “Particulars”) refracted through the lens of emerging Thomism, men’s understanding of the nature of “the Church” was progressively changed and refined in a way that ultimately turned the Church itself into a “Neoplatonic” papal theocracy. By degrees the pope became (in his own eyes and the eyes of his defenders) an unaccountable, sovereign ruler to whom no resistance could be considered legitimate and by whose mere fiat will all disputes were to be solved.

With this background in mind, the impulse for the rise of corporation theory proper was the perceived theoretical “dead-end” into which the Decretists and Decretalists had backed themselves in their attempts to harmonize Gratian’s Harmony of Discordant Canons. A major paradox seemed to be generated by two canons of Gratian, “The judge may not be judged by the Emperor, by all the clergy [combined], by kings, or by the people”, and “[The pope] may not be judged by anyone except he be found to be a deviant from the faith.”:”(The first citation is my translation of the Latin text of Decretum D.9, q.3, c.13 supplied by Brian Tierney in “Ockham, the Conciliar Theory, and the Canonists”, in Journal of the History of Ideas Vol. 15 (1954), pg. 50: “Neque ab Augusto neque ab omni clero neque a regibus neque a populo iudex iudicatur.” It is common knowledge among medievalists that this canon was, unbenownst to Gratian, a sixth century forgery and not a genuine canon of the Church. The second citation is my translation of the Latin text of Decretum D.40 c.6, supplied by ibid.: “[Papa] a nemine est iudicandus, nisi deprehendatur a fide devius.”)”: The latter canon, especially, forced the canonists, over time, to confront the fact that the majority of their work discussed limitations on papal power in abstracto and did not venture into the real world because the former canon seemed to indicate that there could never be a human authority who was competent to judge the pope. The intellectual grandeur of the monarchical papalist theory blocked from view potential orthodox routes for resolving conflicts within the Tradition, and instead caused discussions to gravitate toward extremes.

Despite what theory said, the actual state of Christendom worked “subversively” to bring such other options slowly into the light. Christendom in the thirteenth-century especially was “in a sense a federation of semi-autonomous units, a union of innumerable greater or lesser corporate bodies.”:”(Brian Tierney, Foundations of the Conciliar Theory [Leiden, New York, and Koln: Brill, 1998], pg. 90.)”: These bodies, ranging from ecclesiastical organizations (bishoprics, abbeys, monastic orders) to secular ones (national representative assemblies, colleges, guilds) provided all the societal context that would be needed for the application of “low-level” corporations to the larger Universal Church.

A basic distinction seems to have developed early in corporation theory-the distinction between the corporation as a “legal fiction” and the corporation as a “real person.” For our purposes, these contrary ideas may be somewhat loosely connected with the centuries-long Medieval debate between Nominalism and Realism. That is, the notion that the corporate body is a “conceptual placeholder” for the otherwise unmanageable mass of particulars fits with the former, while the notion that the corporate body possesses a reality independent of its actual members fits with the latter. The “legal fiction” view of corporations would prove very useful to papal absolutists (why should the flesh-and-blood king / pope listen to a mere legal sophism, after all?) just as the “real person” view would prove very useful to a wide range of options amongst the fifteenth century conciliarists.

Gratian’s Decretum had helped corporation theory develop by positing that the bishop, the head of a bishopric, could not carry out the affairs of the corporate entity all by himself but required the co-operation of the members as well.:”(Dist. 24, c.6, etc., as cited by Tierney, “Ockham, the Conciliar Theory, and the Canonists”., pg. 100.)”: With a great deal of wrangling amongst themselves, the Decretalists managed to construct a laborious theory of the nature and functions of a corporation that simultaneously required that under all “ordinary conditions” the head of the body was empowered to conduct the business of the body with genuinely binding authority–but with the qualification that the head was required to treat as significant a “consent” to his actions that emanated from the members of the body. Neither head nor members were to ordinarily act against each other and under ordinary conditions the head was supreme, but on issues affecting the whole community the head was obligated to take only such actions as received the consent of the greater and healthier part (maior et sanior pars) of the body.:”(Note the similarity between the Decretalists’ “maior et sanior pars” and Marsilius of Padua’s “valentior pars”. This is no coicidence, since everyone was working with the same fundamentally dualistic authority Tradition and were thus sure to come up with many similar ideas on its multi-faceted basis.)”:

Further, corporation theory understood that “ordinary conditions” might not always prevail, and when they did not it had to be possible to take extraordinary action to resolve crises that affected the entire corporation. Thus Aquinas stated that no positive laws under God can ever be absolute, but in cases of dire conflict must yield to the principle of “equity.” Thus also a decretal of Pope Gregory IX (r. 1227-1241) explicitly stated, “What is not licit by the letter of the law is made licit in times of necessity.”:”(My translation of the decretal as cited by Tierney, “Ockham, the Conciliar Theory, and the Canonists”, pg. 44: “Quod non est licitum lege necessitas facit licitum.”)”: These two canonistic principles would serve the fifteenth century Conciliarists well. It is critical to understand that they are, or at least, at the time were, fundamentally orthodox ecclesiological principles, and not the invention of “heretics” or “rebels.”

Most importantly, as corporation theory solidified it came to be applied to the level of the Universal Church, the mystical body (corpus mysticum) of Christ. The Decretalists more than the Decretists strongly stressed the unity of this body with the earthly head, the Roman Church.:”(This is not odd given that the Decretalists were commentators upon papal Decretals, unlike the Decretists, who commented upon Gratian.)”: However, as is often the case with Medieval ecclesiology it is critical to observe the actual meanings of the key terms and not simply assume some sort of “literal” meaning. Thus, two Decretalist texts may be juxtaposed to demonstrate the sophistication of their thought. First: “The universal Church is one body of Christ…[and] the head of this body is the Roman Church….Other churches truly descend from this head and are called members of this head even as in a natural body you see the members descend from the head…”:”(My translation of text supplied by Tierney, Foundations, pp. 127-128: “Ecclesia universalis unum Christi corpus est…huismodi corporis caput est ecclesia romana….Aliae vero ecclesiae ab isto capite descendentes, membra huius capitis appellantur et sicut in corpore naturali vides a capite membra descendere…”)”:

Yet simultaneously, they maintained the older Decretist view that the critical term “Romana ecclesia” did not necessarily mean the actual, physical church of the city of Rome. For just as “Peter” stood as a sign of the Church (in figura ecclesiae), not as the Church herself, so “Roman Church” might also bear meanings such as “the whole congregation of the faithful” (congregatio fidelium) or the geographically Universal Church (universalis ecclesia; ecclesia romane urbis et ecclesia totius mundi).:”(Ibid., pp. 23-42.)”:

It is true, as Tierney carefully points out, that these constructs did not at this time attach themselves to any concept of “the whole Church” possessing a superior jurisdiction to the pope,:”(Ibid., pg. 41.)”: But, since the extraordinary circumstances which would bring such an “unusual” position into play had not yet occurred and would scarcely have been imaginable by the canonists of the twelfth to fourteenth centuries, for whom the noontide glory of Western Christendom was apparently undiminishable.

As corporation theory continued to be developed in the Decretist and Decretalist writings, specifically in terms of the relationship of General Councils to the powers of the Roman Bishop, controversy centering upon the Roman Bishop became increasingly inevitable. Thus, whereas the father of the true science of canon law, Gratian of Bologna, produced a number of canons from earlier periods (some of them genuine, but many of them, unbeknownst to him, spurious and of very recent origin) which collectively uphold the position that the pope is the final and sovereign authority in the Church, Gratian’s own subsequent commentators were not quite as certain of that position as he.

For instance, whereas Gratian stated that “The holy Roman Church imparts authority to the sacred canons but is not bound by them”,:”(My translation of Dist. 25, q. 1 post c.16, as cited by Tierney, Foundations, pg. 44: “Sacrosancta romana ecclesia ius et auctoritatem sacris canonibus impertitur, sed non eis alligatur.”)”: Joannes Teutonicus held that “It is apparent that the pope is to require a synod of bishops, which is true where what is involved is a matter of faith, and at that time the council is greater than the pope.”:”( My translation of Glossa Ordinaria D. 19, c.9, as given by Tierney in ibid., pg. 45: “Videtur ergo quod papa teneatur requirere concilium episcoporum quod verum est ubi de fide agitur et tunc synodus maior est papa.” (emphasis in source).)”: Such a view was not novel, but was based solidly upon the general patristic treatment of the Ecumenical Councils—and most particularly upon a sententia of Gregory the Great that compared the decrees of the first four Councils to the four canonical gospels:

Like the four books of the Holy Gospel, so, too, I confess that I accept and venerate the four councils…I embrace them with full devotion and I adhere to them with undivided approval since on them, as on a four-square foundation, the edifice of the holy faith rises and the norm of every life and activity stands.:”(Distinction 15, Canon 2 of Gratian, The Treatise on Laws, trans., James Gordley (Washington, D.C.: The Catholic University of America Press, 1993), pg. 55.)”:

Further, in the same milieu which caused one writer of the Glossa Palatina to remark that “it was dangerous to commit our faith to the judgment of only one man”,:”(My translation of text provided by Tierney, Foundations, pg. 46: “periculosum erat fidem nostram committere arbitrio unius hominis.”)”: some Decretists put forward the concept of “the general state of the Church” (generalis status ecclesiae), the maintenance of which they assumed to be the controlling factor of ecclesiastical affairs. Not even the pope was allowed to legislate against the general state of the Church, but only against states which were “not general” (i.e., local or of only temporary historical significance):

From this it is known that the pope is not able to dispense against the general state of the Church nor against articles of faith…but he is able to dispense for the better against the state of the Church which is not general, just as he can against the repression of the priests.:”(My translation of Joannes Teutonicus, as provided by Tierney, ibid., pg. 48: “Ex hoc patet quod papa non potest contra generale ecclesiae statutum dispensare nec contra articulos fidei…sed contra statutum ecclesiae quod non est ita generale, sicut de continentia sacerdotum, bene potest dispensare.”)”:

It should be evident from what little has been said here that corporation theory is an extremely important aspect of Medieval ecclesiology. It has immense bearing upon the situations that came to prevail in later centuries, which saw the terrible four decade division of the Western Schism, the partially reforming, but not entirely successful Conciliar Movement, and at last, the Protestant reformation.

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