Marsilius of Padua (VI): The Origin and Meaning of “Law”

Since we have said that election is the more perfect and better method of establishing governments, we shall do well to inquire as to its efficient cause, wherefrom it has to emerge in its full value; for from this it will appear the cause not ony of the elected government but also of the other parts of the polity…For the efficient cause of this standard [law] is perhaps the same as that of the ruler.:”(Marsilius of Padua, The Defender of the Peace, trans., Alan Gewirth, pp. 466-467.)”:

Marsilius thinks that the existence of law is “almost self-evident by induction in all perfect communities,” and, assuming that, he proceeds to show (1) what law is, (2) what its final cause is, (3) by whom and how it is established.:”(Ibid., 467.)”: The word “law” can have several meanings. For one, law is “a natural sensitive inclination toward some action or passion,” as the Apostle Paul uses the term in Romans 7:23. Second, law can be “any operative habit and in general every form, existing in the mind, of a producible thing, from which as from an exemplar or measure there emerge the forms of things made by art,” as Ezekiel 43:12-13 uses the term. Third, law can mean “the standard concerning admonitions for voluntary human acts according as these are ordered toward glory or punishment in the future world,” as with the Mosiac and evangelical laws.:”(Ibid.)”: Fourth, law is “the science or doctrine or universal judgment of matters of civil justice and benefit, and of their opposites.” Marsilius proposes that the correct one for his purposes is this fourth. Citing Aristotle’s Nicomachean Ethics, Marsilius says also that law has “coercive force.” According to him, there are times when the Mosaic law and the evangelical law come under the third definition and times when they come under the fourth. This will be relevant for determining under what, if any, conditions the Church can have and exercise coercive power.

Marsilius then treats the fourth definition of law in more detail. The principal end of law in this sense, he says, “is civil justice and the common benefit,” while the secondary end “is the security of rulers…and the long duration of governments.”:”(Ibid., 469. This point demonstrates what Gewirth points out in another edition of the Defender of the Peace: that Marsilius’ use of Aristotle, unlike that of everyone before him, begins with Book V of the Politics, which concerns the causes of both the destruction and preservation of governments.)”: If these are the purposes of law, then, “It is necessary to establish in the polity that without which civil judgments cannot be made with complete rightness, and through which these judgments are properly made and preserved from defect so far as it is humanly possible.” This is the law when it is upheld by a ruler who makes judgments in accord with it.:”(Ibid.)”:

Marsilius then discusses the person of the ruler, or judge, who is the administrator of the law. The judge must have a “right disposition” (affectio) and “a true knowledge of the matters to be judged,” lest his judgments be corrupted. Judges can, of course, have perverted dispositions, but Marsilius thinks that if they stick to the law their judgments will be safe from perversion because law “lacks all perverted disposition.” For this reason, “no judgment, so far as possible, should be entrusted to the discretion of the judge, but rather it should be determined by law and pronounced in accordance with it.:”(Ibid., 470.)”: There are echoes of Aristotle here, who in Politics III.x asks whether it is better to be ruled by a good man or by good laws,:”(Marsilius miscites this as III.ix.)”: and in III.xvi.5 says that the law is “Reason free from all passion.”

If this is what law is, where then does it come from? Here is another reason why Marsilius was so viciously excoriated by the papalists both of his day and after: he denies that law has its source and interpretation in the One (the pope), but affirms that it has its source and interpretation in the Many (the people). Marsilius does not believe that any one, single man could be sufficient for the establishment and maintenance of law, for laws are only made after long study by experience and in cooperation with others. Marsilius here cites various texts of Aristotle, including Politics II.v, Rhetoric I.i, Nicomachean Ethics VI.ix, and Metaphysics II.i, but the point of all is then summed up from Politics III.xvi: “It will appear most unreasonable if one man should perceive better, judging with only two eyes and two ears and acting with only two hands and feet, than many persons with many such organs.”:”(Ibid., 472. Marsilius miscites this as Politics III.ix.)”:

This is an interesting point, to be sure, for it cropped up many times in the history of the Church prior to Marsilius, with various men of equal good will and faith disagreeing as to the utility of putting all judgment in the hands of one man. One thinks of Cyprian at the Council of Carthage claiming that it is “too dangerous to entrust our faith to only one man,” and yet, John of Paris and Dante, near contemporaries of Marsilius and, interestingly, thoroughgoing Aristotelians just like him, advocated doing just that – the former directed toward the pope and the latter toward the emperor. This helps to show us the state of seething intellectual fermentation in Christendom in the wake of Thomas Aquinas’ rehabilitation of Aristotle, and, as we shall see, Marsilius will continue both to use and adapt The Philosopher to his purpose of “defending the peace” against the papal monarchy, “this singular cause of strife” in Christendom.

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