Marsilius of Padua (VII): The Legislator

Aristotle’s political theory had left room for the rise to power of one man of superior virtue, who, for that reason would have to be given an absolute kingship so that injustice would not be done against him. His words are worth quoting here, so as to contextualize what Marsilius of Padua will say both about the concept of one ruler of superior virtue and the (to him) more realistic alternative which he will defend. Aristotle says:

If there is one person (or several persons, but yet not enough to form the full measure of a state) so pre-eminently superior in goodness that there can be no comparison between the goodness and political capacity which he shows (or several show, when there is more than one) and what is shown by the rest, such a person, or such persons, can no longer be treated as part of a state. Being so greatly superior to others in goodness and political capacity, they will suffer injustice if they are treated as worthy only of an equal share; for a person of this order may very well be like a god among men…There can be no law which runs against men who are utterly superior to others. They are a law in themselves. It would be a folly to attempt to legislate for them…:”(The Politics of Aristotle [Book III.xiii.13-14], trans. Ernest Barker [Oxford University Press, 1958], pp. 134-135.)”:

Such men of superior virtue (as the Greeks defined virtue) were known to exist in the Ancient world, and because of their character they were known frequently to attract to themselves more power than any others in the city. This is why Aristotle reports that the tyrant Periander advocated simply cutting them off, and also why democracies such as Athens had the practice of ostracism – banishing the man of superior virtue.:”(Ibid., sections 15-19.)”:

It is against this backdrop that Marsilius of Padua outlines his concept of the legislator, who, not surprisingly, is not to be the One (a king or pope) but the Many (the people). Marsilius reports that Aristotle, in his Nicomachean Ethics V.vi, said that we should not allow one man to rule except he rules in accordance with reason, or law.:”(The Defender of the Peace, trans. Alan Gewirth, pg. 472.)”: This represents an interpretation on Marsilius’ part, for what Aristotle actually wrote was “we do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant.”:”(As trans. by W.D. Ross in The Basic Works of Aristotle [New York: The Modern Library, 2001], pg. 1013.)”: Aristotle does teach the general supremacy of the law, not the persons administrating the law, so even though Marsilius does not “technically” quote Aristotle correctly here, he is not necessarily misinterpreting him, but creatively applying him to the questions of the fourteenth century.

Nevertheless, Aristotle also makes plain that no laws can cover all situations, so there must be some allowance for discretionary judgment on the part of the ruler: “Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.”:”(Politics III.xi.19, Barker translation.)”: This is the basis for the doctrine of “equity” (Greek, epikeia), which would play a major role in much of the resistance to the absolute papal monarchy of the 14th-16th centuries.:”(Interestingly, the principle of equity was also exposited by Thomas Aquinas in a manner which would exactly correspond to that of the 15th century conciliarist resistance to papal “fullness of power.” That is, Aquinas himself wrote that, “if a case emerges in which the observance of the law would be harmful to the general good, it should not be observed,” Summa Theologiae, IaIIae, Q. 96, a. 6, as cited in Paul E. Sigmund, trans. and ed., St. Thomas Aquinas on Politics and Ethics [New York and London: W.W. Norton & Co., 1988], pg. 56.)”: In this light, it is important to observe that Marsilius does not believe Aristotle’s man of superior virtue comes on the scene of earthly politics very often, and even when he does this does not mean he may rule how ever he wishes:

As for us, however, we reply that such a man happens very rarely, and that even when he does he is not as free [from ignorance and passion] as the law itself…for every soul sometimes has a vicious disposition….Certainly, no one, however virtuous, can be so lacking in perverted passion and ignorance as is the law. Therefore, it is safer that civil judgments be regulated by the law than that they be entrusted to the discretion of a judge, however virtuous he may be.:”(The Defender of the Peace, pg. 473.)”:

This brings him to his view of the identity of the legislator: “the legislator, or the primary and proper efficient cause of the law, is the people or the whole body of citizens, or the weighter part thereof, through its choice or will expressed by words in the general assembly of the citizens…”:”(Ibid., 475.)”: Earlier (see Part VI of this series) Marsilius had argued from Aristotle that “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. It is actually III.xvi.)”: Aristotle had attempted to reasonably evaluate what occurs, or can occur, when a mass of people get together to give their opinions about something. On the one hand, it is possible that a mass of people might possess a collective wisdom superior to that of any of the individuals making up the mass.:”(Politics III.xi.2-4)”: On the other hand, it often happens that a mass of people act like a herd of beasts driven along by passion, not reason.:”(Politics III.xi.5)”:

This is surely why Marsilius, in describing the legislator as “the whole body of citizens, or the weightier part thereof” (emphasis mine), says that “By the ‘weightier part’ I mean to take into consideration the quantity and the quality of the persons in that community over which the law is made” (emphasis mine).:”(The Defender of the Peace, pg. 475.)”: Marsilius’ “weightier part” (valentior pars) will also have a long history in subsequent debates over power in the Church and society, for it acts (or is supposed to act) as a check preventing the descent of the masses into the chaos of a mob. In invoking a quantitative consideration relative to the masses, Marsilius is again following Aristotle, who recognized distinctions of freedom, wealth, education, and good birth among people.:”(Politics IV.12.)”: Pure democracy, that is, government literally by the will of a mob, is as anathema to Marsilius as it is to Aristotle.:”(Compare Aristotle’s Politics IV.iv.25-31 on “extreme democracy” with Defender of the Peace I.viii.3 on the inherent disorder of letting the vulgus [common masses] rule by their will over the whole city.)”:

For Marsilius, the whole body of citizens, or at least its valentior pars representing the whole body, should be the legislator because

That at which the entire body of the citizens aims intellectually and affectively is more certainly judged as to its truth and more diligently noted as to its common utility. For a defect in some proposed law can be better noted by the greater number than by any part thereof, since every whole, or at least every corporeal whole, is greater in mass and in virtue than any part of it taken separately. Moreover, the common utility of a law is better noted by the entire multitude, because no one willingly harms himself.:”(Ibid., 477.)”:

Marsilius’ use of Aristotle here is intriguing. Like his master, not only does he take account of the negative dimension of getting a mass of people together to decide on something, but also the positive. Furthermore, he often draws out what he thinks are implications of Aristotle’s views, even if Aristotle himself did not say so in so many words. Toward the end of this section of the Defender of the Peace, Marsilius weaves together several passages of Aristotle to prove that the whole body of citizens, or at least its representative valentior pars, should be the legislator. His argument follows this path: (1) The Philosopher said, “Laws are not well ordered when they are well made but not obeyed,”:”(Politics IV.viii)”: (2) the city or state is a community of free and equal men rationally deliberating about the just and the unjust:”(Politics III.vi)”: and therefore, (3) the best way for free people to obey well made laws is for them to directly make those laws themselves.:”(The Defender of the Peace, 477.)”:

Marsilius also invokes the ancient Roman legal maxim quod omnes tangit ab omnibus approbetur – “what touches all is to be approved by all.” He disagrees with his near contemporaries, and fellow Aristotelians, John of Paris and Dante, that the rule of one man is best, because, on Marsilius’ view, “through ignorance or malice or both, this one man could make a bad law, looking more to his own private benefit than to that of the community, so that the law would be tyrannical.”:”(Ibid., 478.)”: Following Aristotle’s notation that governments are either by the One, the Few, or the Many,:”(Politics III.vii.)”: Marsilius applies to the Few the same logic just applied to the One: “for they too could sin, as above, in making the law for the benefit of a certain few and not for the common benefit, as can be seen in oligarchies.”:”(Ibid.)”: Logically, then, this leaves only government by the Many, the people, as a contender on the field of Marsilian discourse.


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