The title of this article does not lend itself to an obvious meaning. It is not willfully obscure but the aptness of the title requires some explanation. First, the content of medieval political thought is not well known. After all, the dominant philosophical concerns of the time broadly speaking lay with the theological, the metaphysical, and perhaps later, the epistemological and logical. From the perspective of political philosophy, the fifteen hundred years between antiquity and Machiavelli or Hobbes, with a cursory nod to Augustine and Thomas Aquinas, are normally leapfrogged as though little of political significance happened. The log however may be in our eyes. The medievals were concerned, not so much with political problems as we might ordinarily recognize them today—e.g., justice, liberty, equality—but more subtly with the elemental problem of order. Perhaps this seems clearer when we consider that medieval political thought only becomes conspicuous in the landscape in connection with the struggle between the church and the empire or the various kingdoms. It is the aim of this article to demonstrate that in addressing that problem of order, or crisis of disorder, the medievals proved fruitful in an epochal way.
Second, the phrase “priority of existence” in the title suggests something about the importance of existence, that the existence of individual human beings is more than an act or a fact. In his essay, “Equivalences of Experience and Symbolization in History,” Eric Voegelin writes: “As I have tried to conduct the analysis with some attention, the search for the constant in history has been referred back from the symbols to the experiences, and from the experiences further back to the depth of the psyche.”[i] Voegelin has explored exegetically the intrinsically participatory or metaleptic nature of human existence in that depth.[ii] By the “priority of existence” should be understood that before there is symbolization—whether political, religious, or doctrinal of whichever kind—there is existence that is already meaningful because it is already structured as a metalepsis or participatory event within the one reality.
This article is focused on that priority of existence and more particularly on its assertion in the later medieval world when the complex of symbols issuing from church and empire—the symbols that had substantially inspired and sustained the civil theology of a sacred Christian empire—were becoming increasingly opaque. Certainly, these symbols were being challenged by a new engagement with the world whose meaning lay outside the traditional evocation. If the symbolization of meaning in both the church and the empire or national kingdoms was becoming less adequate for the provision of meaning of human existence, then there are two possibilities: 1) there was a need for reform in both religious and political institutions toward a higher degree of symbolic evocation of the truth of being; 2) the human need for meaning itself was undergoing an upheaval akin to a heightening sensitivity to the intrinsic value of individual existence. The struggle for a more adequate order is the subject of this article and both 1) and 2) are discussed below. It may not be too much to suggest that the gradual denouement or self-effacement of medieval Christendom with its dualism of authority—religious and political—was driven largely by this newly assertive priority of existence that itself became a normative third authority. Arguably, the direction taken by subsequent Western thought and praxis is, to a large extent, animated by dynamic interplay among these three spheres of authority: the religious, the political, and the existential.
So that we are clearer about the priority of existence, it is helpful to begin with some contemporary insights that students of Voegelin’s thought might already be familiar with. In the fifth volume of Order and History, Voegelin writes, “The comprehending It-reality moves formatively through the thing-reality from a Beginning that does not begin in things to an End that does not end in things. The Beginning and the End … are experienced as a Beyond of the formative, tensional process of reality.”[iii] According to Voegelin, participatory existence is structured from and toward that which is beyond existence. Of course, that which is beyond existence is precisely that which cannot be attained. It is the ineffable because it does not exist. It is the non-existent, because it precedes existence. But that which precedes existence is not a nothing. Nor is it a something in the sense of an object in space and time. It is somehow in-between a nothing and a something from the perspective of human consciousness. Burdened by the necessity of apophatic thought and language, or the inability to capture the uncapturable, consciousness nonetheless reaches out from the Beginning toward the Beyond in the It-Reality for the Reality of the It. Infinitely beyond the categories of word and thought,[iv] the non-existent ground of being is found to disclose itself in the act of existence itself; existence being always an act of participation (or metalepsis) within It.
Human existence—continuous with the depth and testifying to that which eludes final testament—bears a dignity that, I suggest, can also be symbolized as an authority. Emmanuel Levinas writes of such an authority in the face of the human person: “The Other is not the incarnation of God, but precisely by his face, in which he is disincarnate, is the manifestation of the height in which God is revealed.”[v] The individual human being attests to the glory of the non-existent divine pole of the metaxic tension because he or she is already structured in a proximate tension, an intimacy, with the unattainable God. The simple and unadorned existence of the individual human being is then redolent with dignity or authority that I will call existential authority. Of course, we are accustomed to thinking of authority, or the assertion of authority, as a power to command vested in a legitimate organ. The discussion that follows pursues the medieval problem of order, which is burdened with assertions of auctoritas. The dignity of human existence also asserts an auctoritas in the normative sense, commanding a solemn respect. Again as Levinas asserts:
“the relation to the face is straightaway ethical. The face is what one cannot kill, or at least it that whose meaning consists in saying: ‘Thou shalt not kill.’ … There is a commandment in the appearance of the face, as if a master spoke to me. However, at the same time, the face of the other is destitute; it is the poor for whom I can do all and to whom I owe all”.[vi]
This existential authority is the command to respect that is made of us from the existence of another that cannot be ignored. Such existential authority, manifested in the existence of persons, derives from a depth in the It-Reality from which human life begins and through which it persists. It is an authority that is prior to the exercise of rational judgment and an authority that persists even when an individual fails to realize his rational humanity. That is, it is an authority that silently attests to the immeasurability of the person. If authority is embedded in the existence of each human being, it is because the existence of each human being is more properly said to be embedded already in an authority which is an authority of participation, in intimate tension, with the divine pole in the metaxy. The priority of existence means not so much that existence claims it own priority, but that existence is already claimed by a priority: the priority of the non-existent in which existence is held.
This symbolization is equivalent to those of some medieval Neoplatonist thinkers who grappled with the mysterious reality within which existence is held. In his Periphyseon, Duns Scotus Eriugena writes “… none of the things that are truly exists by itself, but whatever is understood truly to be in it receives its true being by participation of Him, the One, Who alone by Himself truly is.”[vii] Eriugena incurred the charge of heresy because the suspicion of pantheism hung over his work – he emphasized too strongly the intimacy of beings with the source beyond being that holds them. Eriugena maintains that, among beings, man’s existential participation in the ineffable divine One beyond being is unique. This is so because of the uniqueness of the human soul and its “motions,” the highest of which is nous as the highest part of the soul above sense and even reason. The nous “… is simple and surpasses the nature of the soul herself and cannot be interpreted, that is, it cannot have knowledge of that about which it moves; ‘by this motion the soul moves about the unknown God, but, because of His excellence, she has no kind of knowledge of Him from the things that are.’”[viii]
This limitlessness of the soul that cannot be adequately differentiated from that in which it participates reminds one of equivalent symbolizations of the experience, such as the Heraclitean depth of the soul’s logos or even Aristotle’s nous poetikos. Eriugena continues, “If therefore human nature, renewed in Christ, not only attains the angelic status but is even carried up beyond every creature into God, and if it would be impious to deny that that which was done in the Head will be done in the members, what wonder if human intellects are nothing else but the ineffable and unceasing motions … about God, in Whom they live and move and have their being?”[ix] Eriugena’s evocation of the human soul as an unceasingly active motion in the metaxic tension irradiates the existence of man with an authority that already encompasses and holds us. The priority of the Divine pole of the metaxy can be said to be the source of that authority from which and toward which we exist.
The authority embedded in the existence of the individual human person derives from the beyond of existence, uncontainable by man but made manifest in the world by his “motions” in the metaxy. Eriugena adds another dimension to the tension by which we move, describing it as a movement of love or amatory motion. “Rightly therefore is God called Love, since He is the Cause of all love and is diffused through all things and gathers all things together into one and involves them in Himself in an ineffable Return, and brings to an end in Himself the motions of love of the whole creature.”[x] The priority of God is also the priority of God’s love that first and continually sets being into motion, and is the motion from which and through which and in which and for which the participatory motions of the human soul proceed. Eriugena’s thought symbolizes what is called in this context existential authority but enriches the blandness of “authority” by recognizing it as participation in the amatory motion of the divine partner beyond being.
In a similar way, Levinas highlights the existential priority of love when he writes that love “is a movement by which a being seeks that to which it was bound before even taking the initiative.”[xi] If we take both Eriugena and Levinas seriously, the existential authority that holds the self also involves the self immediately in a relation of love so that the authority by which one lives one’s life and makes one’s decisions is already bound to, and moves from, an exigency. The face of the Other does not constitute one more detail in a world of details and facts. In exceeding facticity, the face of the Other is always an occasion; or more precisely, it is a “revelatory” event of that which cannot be revealed but only participated in.
In this sense, the face of the Other is a paradox, but it also testifies to the authority which is nothing less than the condition of one’s own life. The paradox is that of human existence itself as the perennial disclosure of the It-reality, the non-existent ground of being. The luminosity of existence that emanates from depth, profoundly disturbing the haughty intentionality of life, is effectively and substantially a moral authority. The Platonic Good, which transcends the goods and evils of being, is therefore not another optional good, but is that exigency that binds us from the beginning and from which we move. It is the authority by which human life is already deriving its meaning. Existence is normative because normativity has already flowed from the non-existent to the existent. Existential authority, it turns out, is already a priority of moral authority to which the face of the individual human person testifies.
Pragmatic Developments and the Differentiation of Authority
Eriugena’s insight into the authority that holds existence belongs within the tradition of Neoplatonism. One could reasonably claim that humanity’s belonging within an order that transcends it was an insight that formed a significant plank in the philosophical platform of medieval civilization. This is worth bearing in mind when considering the pragmatic developments of the time that concerned themselves with a range of action in the fields of commerce, law, natural sciences, exploration, etc. The upheavals of medieval society and the broadening of its worldly engagements were driven by existential authority. These upheavals and engagements were therefore never amoral.
The dominant civil theology of the Medieval Latin West was the sacrum imperium.[xii] It was the consensus that if life in the final age of Christ were to have meaning then the evocation of the kingdom of God on earth would be just that: The order of existence in the world would be an earthly but imperfect mirror of the order beyond the world. It was an aspiration toward a unity of order with the eschatological world-to-come. Political and spiritual authorities were thought to derive their purpose from the kingdom of God in the final age. The traditional meaning and governance of medieval Christendom was symbolized famously in the “Two Swords” formula of Pope Gelasius I in his 494 A.D. letter to Byzantine emperor Anastasias:
“Two there are, august emperor, by which this world is chiefly ruled, the sacred authority of the priesthood and the royal power. Of these the responsibility of the priests is more weighty in so far as they will answer for the kings of men themselves at the divine judgment. You know, most clement son, that, although you take precedence over all mankind in dignity, nevertheless you piously bow the neck to those who have charge of divine affairs and seek from them the means of your salvation.”[xiii]
This formulation of the separation of institutional authorities within the one sacred Christian order restates the epochal differentiation of authority articulated by Jesus: the giving to God what is God’s and to Caesar what is Caesar’s (Mt 22: 21, Mk 12: 17, Lk 20: 25). For this reason, Gelasius’ letter carried a weight of authority that not even a Byzantine emperor could ignore. In this formulation, the distinctive shape of Western Christendom was announced: the nominal separation of ecclesial from political authority, acknowledged if not practiced in the Greek East, became a statement of the independence and superiority of the papal Magisterium in the Latin West. What this meant in theory over the centuries was the co-governance of the Christian mundus by the imperial head on the one hand, taking charge of temporal goods such as security and coercion to justice, and the superior papal head on the other, leading spiritual matters.
In practice, this neat separation of competence and proper authority proved difficult to maintain. From the side of the imperial head, there was often a claim to supererogatory authority that extended to competence over ecclesial matters: Holy Roman emperors from the time of Charlemagne in 800 A.D. routinely deposed and installed popes while feudal lords appointed bishops and abbots and invested them with the regalia of their ecclesial offices. From the side of the church, beginning with the papacy of Gregory VII in 1073, there was a similar claim to jurisdiction over political matters that was justified by theories of a papal plenitudo potestatis that found their formulation par excellence in Pope Boniface VIII’s 1302 bull, Unam Sanctam:
“Both [swords] . . . are in the power of the church, the material sword and the spiritual. But the one is exercised for the church, the other by the church, the one by the hand of the priest, the other by the hand of kings and soldiers, though at the will and sufferance of the priest.”[xiv]
It is not our task here to chart the ebbs and flows of the papal-imperial/royal struggles of the time, but to demonstrate that the problem of order that faced the medievals was more properly a problem of authority.
The arrangement of the sacrum imperium into a dualistic structure of authority arising from its two spheres of sacerdotium and regnum attempted to realize the evocative unity of Christendom. This structure was already inherently unsound in that it was locked in a mutual antagonism. Beneath the blazing rhetoric, and almost unnoticed among the more spectacular episodes of the political-ecclesial discord, is the subtle rise of existential authority or what Voegelin describes as a “spiritual wave” of discontent.[xv]
Best characterized as an expression of dissatisfaction, this spiritual wave began in the monasteries in the tenth century in the midst of systemic political and ecclesial corruption and the trauma of invasions by Saracens, Vikings, and Magyars among others. When the invasions subsided by the end of the century, the dissatisfaction spilled over into popular movements seeking a renewal of order that were directed primarily at the relation between the church and the various local rulers. By the time Leo IX (1049-1054) took up the struggle to reform the church, the tension had already become acute and the momentum for reform had burgeoned into revolutionary sentiment. “Libertas ecclesiae!” was the slogan of reform that famously resulted in the struggle known as the Investiture Controversy during the papacy of Gregory VII in the later eleventh century in which the church strove to divest itself of lordly and imperial control.
The terminology of reform and controversy, however, underplays the dramatic upheaval of the time whose institutional expression was the resurgence of papal authority. The upheaval in the aftermath of the invasions and the general unrest that was characteristic of the time had at its experiential core the tension between the conditions of existence as they were and the intimations of order that more adequately reflected the luminosity of existential authority. That the specific struggle was centered on the problem of lay investiture of bishops with the insignia of their ecclesial office conceals not only the wider implications for medieval social structures—such as for the subsequent development of the national realms—but more importantly the spiritual wave that had been shifting the emphasis of civil theology towards renewal for generations. While the element of institutional reform was the most visible aspect of the Investiture Controversy, the assertion of existential authority as a spiritual wave on the lower plane of experience and sentiment in society for over a century was the force that animated it.
By the end of the eleventh century, the Gelasian formulation of Two Swords was becoming increasingly inadequate to the articulation of meaning in society in which a third, existential center of authority was becoming increasingly assertive in its engagement with the world. This inadequacy became a growing crisis in medieval civil theology that eventually began to rupture the fragile if traditional Gelasian arrangement. Legal historian Harold Berman points to an “axis-time” in the development of Western medieval order, postulating that “there was a radical discontinuity between the Europe of the period before the years 1050–1150 and the Europe of the period after [these] years.”[xvi] After Berman’s axis-time, Europe experienced an explosive release of creativity, known as the Renaissance of the twelfth century. It was a time of emphatic engagement with the world in the fields of literature, art, philosophy, exploration, natural sciences, commerce, urbanization, law, etc.
However, to emphasize the discontinuity between the pre-1050s and the post-1150s is to lose the developmental continuity that inheres from its roots to its fruits. In his second volume of History of Political Ideas, Voegelin writes, “the sphere of politics is the original sphere in which the fundamental changes of sentiments and attitudes occur, and . . . from the realm of politics new forces radiate into the other spheres of human activity—that is, into the realms of philosophy, the arts, and literature.”[xvii] The political sphere in which we find the blossoming of a renaissance in the twelfth century is the same sphere in which the spirit of renewal began to assert itself after the invasion period at the end of the tenth century. Of course, the world had changed but what carried the change was not merely the authoritative actions of emperors, kings or princes, nor of the pope or priests, but the assertion of existential authority by individuals and communities. That is, the substantive change that marks the period after Berman’s axis-time is not so much the development of new kingdoms outside the empire such as France or the Norman realms; nor is it the development of international governmental structures by the church; it was more properly the “release of energy and creativity analogous to a process of nuclear fission”[xviii] that was the manifold expression of existential authority among the people of the time across the various fields of human action.
It is with this understanding of a newly assertive third authority in the midst of established political and spiritual authorities—i.e., the imperial or royal rulers, the religious authority of the Church, and the existential authority in individuals and derivatively in their associations—that we turn to the political thought of Thomas Aquinas and William of Ockham. Separated by almost a century, both thinkers have captured the dynamic spirit behind the forces of their day. Both have articulated why the dignity that constitutes individual persons is also politically and legally normative. Aquinas wrote in the mid-thirteenth century, “because subsistence in a rational nature is of high dignity, therefore every individual of the rational nature is called a person.”[xix] Individual persons are constituted by a dignity that, when discussed especially in the context of political philosophy, can also be symbolized as authoritative. For both Aquinas and Ockham, among others, the existence of the individual provides a third center of authority that overcomes the Gelasian duality, effectively announcing the subtle transformation of the medieval world into something else that was far from clear.
Aquinas’ concerns for the just governance of Christian people are parallel in some ways to the concerns of the American Founding Fathers regarding the problem of tyranny. The governance of a Christian people must include certain limitations or checks on the ruling power, necessary to prevent the possibility of tyranny. A constitutional government must be protected from lapsing into tyranny and the proper method for dealing with a threat of tyranny is its prevention through a limitation of royal power. The problem of tyranny is raised twice in the Summa Theologiae. Voegelin comments:
“The first time it [the problem of tyranny] appears in a brief enumeration of the Aristotelian forms of government (I-II.95.4), concluding with the statement that the regimen conmixtum is the best form of government . . . The second occasion arises in the discussion of Israelite institutions (I-II.105.1). This article is of particular interest because it shows the almost incredible insouciance of Thomas when it comes to strict systematic construction. Monarchy is considered, as in De regimine principum, the best form of government because it is the analogue of divine governance of the world. On the other hand, it is not the best form of government because empirically men are weak and the danger of tyranny necessitates preventive institutions.”[xx]
If the tyranny of a degenerate monarchy is too dangerous, and if aristocracy and democracy can fall into their own form of tyranny due to the possibility of abuse by weak men, then a commixed government becomes preferable, being a blend of each and therefore providing a mechanism by which tyranny in one aspect of governance could be mitigated by the others.[xxi] Similarly, the discussion of limited monarchy in the unfinished De regimine principum occurs within a broader discussion of how to prevent tyranny. For Aquinas, the issue of the best kind of government remains secondary to the primary issue of outlining a political order in which the bond of affection between Christians can freely arise and unite communities in their universal orientation toward eternal beatitude. The task of political authority is mostly a negative one in that it must exist in order to prevent the destruction of the social order. However, the legal basis of governance is also positive in that it serves to foster the life of virtue among the people. Aquinas’ political thought implicitly suggests that it is the existential authority of Christian persons that grounds the legitimacy of political authority, and does so in a depth that transcends the merely immanent conditions of temporal-mundane reality.
The preference for a form of government or institution depends upon how well it functions to prevent tyranny and foster virtue. Aquinas is clearly noncommittal about the best form of government, even if the commixed government with the participation of all seems to deserve his favor. The constant in his political thought is the need for an adequate order in which the life of virtue is possible. In this way, Aquinas can even allow for the temporary tolerance of a tyrant if his removal should involve the disintegration of public order due to revolutionary fervor. “If, however, a tyranny is not excessive, it is more advantageous to tolerate a degree of tyranny for the time being than to take action against the tyrant and so incur many perils more grievous than the tyranny itself.”[xxii] The premium Aquinas places on existential order is indicative of the new direction inherent in the civil theology of his day.
By the time of William of Ockham (1287-1347), the lingering sacrum imperium was still dominated by the papal and imperial swords and their clash, but with their claims to an ever-greater fullness of power there grew the ever-greater threat to the well being of individuals and communities. What Ockham brings is the timely introduction of the language of natural rights inhering in the individual person.[xxiii]In fact, the importance of Ockham’s language of natural rights lies in the prioritization of existence or the recasting of political thought and action in the light of existential authority. With regard to the temporal authority of emperors, kings and princes, Ockham would seem to agree with Aquinas that the shape of a government is always secondary to the primary concern for the community of free Christian individuals, who by Ockham’s time had become increasingly vested with an awareness of natural and positive rights.
Ockham emphasizes the natural restriction on political-temporal power by the common weal: “… Human society is in general obliged to obey the emperor in those things that conduce to the common utility, but not in those things that clearly by no means advance the common good.”[xxiv] The political authority of the ruler is curtailed by divine law but also natural law, particularly by ius gentium or the law of nations as a “conditional natural law.”[xxv] Drawing on Isidore, Ockham explains the ius gentium as a natural equity, expressed in the living customs and heritage of peoples or nations that precedes positive legal enactments and supersedes the authority of the emperor and national kings. The customary laws of nations “spring in some fashion from the whole of human society.”[xxvi] They are normative assertions of order that emerge from the spontaneous generation of meaning in the social and historical existence of man. Ockham asserts that there is no legitimate plenitude of power in the imperial office.
Nor is there a plenitude of power in the papacy. The de facto exercise of temporal potestas by the papacy was a feature of the political landscape in Ockham’s day. The dispute over the Franciscan ideal of poverty involved more than a mere doctrinal detail over the life of Christ; it involved the jurisdictional remit of the church that was by then equivalent to a transnational state with immense material resources at its disposal and that was increasingly pitted against the resources of the empire. The assertion of a papal plenitude of power over political matters had met with plenty of theoretical and pragmatic opposition.[xxvii] Now Ockham weighs in too—and almost paying very dearly with his life for it—convinced that such an assertion amounts to heresy. For him, the power of the pope cannot have the character of a heretical plenitudo potestatis, even in spiritual matters: he writes, “the pope does not possess a plenary power in spiritual matters, for he cannot prescribe to anyone those things that are works of supererogation–such as virginity, fasting on bread and water, entering a religious order, and so forth.”[xxviii]Note the priority given to individual authority over matters of personal discernment, evincing a sphere of autonomy over which the pope cannot legitimately claim authority.
For Ockham, right reason morally requires service to the common good and, if an individual wills the command of right reason simply because it is right reason, he becomes virtuous. But if he wills the command of right reason not because it is right, but because he is compelled to do so by the pope, he does not become virtuous. Such plenitude of power violates the rights and liberties granted by God and nature, and deprives Christians of the possibility of being virtuous. In Ockham’s thought, an individual can never become virtuous as long as he is coerced. Freedom of the will is necessary for virtue. Following the command of right reason for its own sake, the Christian individual acts virtuously, responsibly and morally for the common good in conjunction with other Christians. At most, institutional temporal and spiritual authorities provide the conditions and encouragement to do so.
The picture that emerges in Ockham’s political thought is that of a three-fold universe of political, religious, and existential authorities, the most immediate and fundamental of which are the existential. Ockham is the first great champion of individual liberties, and as such, he indicates the trajectory of the unfolding post-medieval, Western arrangement that prioritized the dignity of existential authority over political and religious authorities. Ockham was not overly concerned about finding a solution to the problem of absolutist tendencies in the papacy or the imperial office for the sake of the papacy or the empire; his concern lay primarily with individual human beings and communities living unmolested by such tendencies. Hence the need to chart and emphasize the boundaries of what does not fall within the legitimate competence of the traditional Gelasian Swords.
In Ockham’s earlier work, he had sought to preserve the integrity of Christian dogma, but his fideist position played into the bifurcation of faith from reason, and thus into the very process of spiritual disintegration that marked the crisis of meaning in his day. That is ironic. However, there is another irony too: If Ockham was a nominalist in his logic and epistemology, his emphasis on individuals led to his identification of the individual as an inviolable and inexhaustible center of meaning which paradoxically anchored the wholeness and universality of the Christian truth of society. In his political thought, he had recaptured the meaning of the Christendom as the individual Christian, a meaning that had been forgotten in the long struggle for its imperial articulation. His was a theory of man in which the rights of religion and the foundations of politics could find their common basis.[xxix]
Medieval Legal Thought
The emergence of existence qua authority was recognized in the legal field before it became topical in philosophical thought. The development of law is now considered as it reflects the original medieval shift toward the existence of the person as authoritative, primordially constituting a field of rights. In fact, Brian Tierney in The Idea of Natural Rights points out that, in the 12th century, society was “saturated” with a clamor for rights. He mentions the rights of popes asserted against the rights of emperors and vice versa, the rights of bishops and barons asserted in defense against the king, the rights of cathedral canons vis á vis the local bishops, the rights of both peasants and lords claimed against each other in the quid pro quo that was the provision of land to be worked in return for food and labor to their lords. “Medieval people first struggled for survival, then they struggled for rights.”[xxx] We will consider the revival of law in general before assessing the enduring significance of Aquinas’ legal thought.
The revival of Roman law in the twelfth and thirteenth centuries was a crucial development that met the needs for a rapidly expanding sphere of worldly action and interaction. Voegelin describes it as “the most important single event in the process in which the new forces, individual and collective, generated an order of inner-worldly action as well as a method of inner-worldly legal reasoning.”[xxxi] The period from 1150 onward saw the chartering of cities across the Latin West, the exponential increase of commerce, the concentration of power in rising bureaucracies, as well as the jurisdictional claims of popes and emperors.
One consequence of the pragmatic expression of such inner-worldly activity was the process by which law became self-aware and consequently disembedded from local custom; and the corpus of law began to grow in response to needs.[xxxii] The foundation of the law school in Bologna marks the rise of legal science in which important legal concepts such as the meaning of ius or right could become topical. In Lombardy, lawyers practiced Lombard law, which of course had grown organically in step with political society, but by 1100 their preference for Roman law, meaning the body of Justinian’s legislation, led to an innovation whereby the text of Roman law became glossed with interpretations.
Over the next century and a half, there had developed a dynamic body of law built upon a foundation of Roman law and in time, the glosses themselves became more important for the practice of law than the foundation text.[xxxiii] Within the church, a mid-twelfth century Bolognese monk named Gratian began to systematize the various collections of canon law that had been written before his time, none of which were recognized as a standard text. He codified the materials in such a way as to draw out the content of the law in a coherent manner, producing a treatise that was comprehensive and as free of contradiction as possible. “The Decretum Gratianum, as it was called, achieved, as soon as it appeared, a quasi-official status as the source of canon law and as the standard text for its teaching.”[xxxiv] It is in the glosses rather than the foundational texts, especially in the later commentaries on the Decretum, that we begin to discern the assertion of a zone of subjective autonomy constituted by right.
As early as the canonistic jurisprudence of the late twelfth century there is a semantic shift occurring in the meaning of ius (right). Brian Tierney writes that what occurs in the glosses of this time is “a new understanding of the old term ius naturale as meaning a kind of subjective power or ability inhering in individuals.”[xxxv] In his study, he works backward from Ockham to demonstrate how Ockham, who is normally credited with the inception of subjective rights, was able to build upon at least a century of jurisprudence that had already shifted its emphasis from the objective basis of right toward the subjective. Tierney cites the Franciscan Bonaventure (1221-1274) who transplanted religious concepts to legal theory with ius (right) used in a subjective sense.[xxxvi] He shows how other non-Franciscan, secular theologians such as Henry of Ghent (1217-1293) and Godfrey of Fontaines (c.1250-1306) were already working with a notion of subjective rights well before Ockham.
In one interesting example, Tierney outlines how the shift of emphasis toward subjectivity begins to emerge in the thought of Godfrey of Fontaines: “On account of this, that each one is bound by the law of nature to sustain his life, which cannot be done without exterior goods, therefore also by the law of nature (iure naturae) each has dominion and a certain right (ius) in the common exterior goods of this world which right also cannot be renounced.”[xxxvii] Here, Tierney mentions, “the meaning of the word ius shifted from objective natural law to subjective natural right in the course of a single sentence.”[xxxviii] He points to a notion of subjective rights emerging from the glosses on Gratian’s Decretum. He writes that there were contradictions in the Decretum, in spite of Gratian’s concern, that the glossators sought to resolve. Tierney mentions the controversy over the different meanings of ius naturale and notes that while Gratian used ius to refer to systems of objective law like military law, customary law, civil law, etc. the canonist commentators were also using ius to refer to subjective right.
In discussing modern rights language, a right demarcates a field in which the agent is free to act as he chooses, “… to assert a claim or not to assert it. The canonists were making the same point – for them ius naturale could mean ‘to reclaim one’s own or not to reclaim it.’”[xxxix] As early as the 1180s, English glossators were already working with a notion of subjective right that appears in two glosses: “Ius naturale… licit and approved, neither commanded nor forbidden by the Lord or by any statute . . . ”[xl] By this time, ius carried a meaning that went beyond positive legal claims. It was an assertion of a power inhering in the individual person that could be exercised or not and according to an authority derived from the individual alone. Ius could now refer to the autonomy of an individual who was already exercising a dominium over the things one’s own: life, health, liberty, material goods, reason, etc. Similarity to the thought of Locke’s Second Treatise on Civil Government should not surprise us.
Between Gratian’s time and the second half of the twelfth century, this important semantic shift recognized that ius did not merely have objective status, but was already embedded in the existence of man.[xli] Glossators seemed to have found that it was the very existence of concrete persons that was already furnished with a quality that, in the intellectual and pragmatic context of rights claims, could assume a legal status. By about 1300, the enumeration of natural rights reflected their existential roots: The rights to property, rights to consent to government, rights of self-defense, rights of infidels, marriage rights, procedural rights. Tierney notes, “From the thirteenth century onward, Roman and canon lawyers argued that the basic rules of legal procedure guaranteeing a fair trial were based on the natural right of self-defense, not merely on human enactments.”[xlii] The semantic shift that had occurred in language through Berman’s axis-time was more properly an existential shift that was moving the entire civilizational frame of the medieval West away from the Gelasian world of the Two Swords, away from the objectivity of ius, toward an amorphous and restless future whose political and religious authorities would have to contend with the assertiveness of existence itself as a third authority.
Let us turn our attention now to Aquinas’ legal thought where we see him–more satisfactorily than in his political thought–addressing the depth dimension of the process of reality becoming luminous to itself in the consciousness of man. Law, in addition to its function as a body of positive rules, ultimately symbolizes a primordial intimacy within and beyond being. As opposed to his interspersed and fragmented political writings, his legal theory is coherent and substantial. It appears in his Summa in connection with man’s final end in eternal beatitude. He considers the principles of human action and subdivides these into internal and external principles. The internal are the powers and habits that move men to action, while the external principle is God who moves men to the ultimate good of beatitude.[xliii] It is here that a discussion of law is located: God moves man through instruction by law or through grace.[xliv]
In his own commentary on Aquinas, Voegelin notes:
“Hence the theory of law is the theory of the instruction given by God to man in order to motivate his acts toward the ultimate goal of beatitude… The world, including man, is the creation of God; it bears the impress of the divine intellect; the meaning of created existence is the movement back toward God”.[xlv]
It follows then that law, while belonging in the communal and social life of man, derives its being from the beyond of that communal and social life. The provenance of law is then the non-existent divine ground of all being. For Aquinas, law is a phenomenon that is more than human as its justice reaches beyond itself into the transcendent-divine. Law in its transcendent fullness is amenable to natural reason, yet the ius in iustitia is always more than merely natural. Law, in this sense, becomes a metaphor for the human condition: man, like law, participates rationally in the transcendent beyond of being simultaneously with the temporality of being.
Aquinas states “the ruling idea of things which exists in God as the effective sovereign of them all has the nature of law.”[xlvi] In other words, law is a logos in the sense of providing a structure of being, but law is also that which issues from the beyond of being in God and returns to God as its final end. In its issuance there are four kinds of law that Aquinas discerns which illustrate both its divine provenance and rational quality: the eternal, the natural, the human, and the divine.
The lex aeterna then is Aquinas’ first topic of law. “Hence the eternal law is nothing else than the plan of the divine wisdom considered as directing all the acts and motions [of creatures].”[xlvii] It is the ratio of creation itself in the intellect of God. It is uncreated and, from a human perspective, is the rule moving man in his orientation toward his final end. Humanity takes its rational nature from the divine lex aeterna. The eternal law, as it becomes known to man, is referred to as the natural law. Aquinas describes it as “nothing else but a participation of the eternal law in a rational creature.”[xlviii] Note the priority that Aquinas signifies by articulating the description of natural law as the participation of the eternal law in rational creatures, and not the participation of rational creatures in the eternal law.
In other words, if man participates in the lex aeterna—a participation we call the natural law—it is because it participates in man first. Nor is “it” truly an “it” in the sense of a thing that we could just as well leave alone. “It” is equivalent to the “It-reality.” Our very existence is derived from the eternal law, or grounded in the non-existent and uncreated divine ground. On the one hand, human rationality participates in that which participates in us first. Before we even begin to reason, we are structured by a reason that is beyond all reason. It is the priority within which we exist. On the other hand, human rationality is also an imperfect realization of that within which we exist.
Aquinas is building an ontology for natural law understood as an authoritative force embedded in, or moving, human existence. However, he does so only because of the priority of the lex aeterna within which we exist. Natural law is a law that may be experienced only in its general principles but is sufficiently normative to orient concrete persons in justice and friendship. For example, “the primary precept of the law is that good should be done and pursued and evil avoided; and on this are founded all the other precepts of the law of nature.”[xlix] The lex humana is the creation of positive law by man himself for the pragmatic circumstances of existence. However, it bears only upon the temporality of existence. As human life is not exhausted by temporality, positive law cannot be exhaustive. The lex humana succeeds only by being adequate to the circumstances of life. The goal of existence–eternal beatitude–is revealed by the lex divina in Scripture.
What Aquinas constructs in his treatise on law is, from a human perspective, a theory of authority, but it is a theory of authority that is centered in a metalepsis: that is, man’s simultaneous participation in reality, in-between both its transcendental and temporal dimensions. If the lex aeterna symbolizes the non-existent It-Reality beyond all understanding, the plenitude from which we begin and from which all things take their being, lex naturalis symbolizes man’s existence as a luminosity, an effulgence from the depth below the psyche. Man is not just subject to law, but also constituted by it. It is because of the luminosity in existence that human, positive law and divine law are promulgated. Voegelin proposes that Aquinas’ ontological foundation of a theory of law is probably the only tenable position for a philosophy of law. Without transcendental grounding, there can only be these nihilistic alternatives: the validity of any positive order that can compel submission and/or the erection of intermundane elements such as instincts, desires, survival of the fittest, or the like into absolutes.[l]
It is not difficult to see that, for Aquinas, the authority that humanly created positive law carries is always subject to the authority embedded in human existence; or better, it is subject to the prior authority in which human existence is held. If his legal thought is ultimately concerned with man as a luminous participant in reality, it is enough that human law is adequate when it secures the worldly conditions that enable such participation:
“The proper characteristic of justice, as compared with the other moral virtues, is to govern a man in his dealings towards others. It implies a certain balance of equality, as its very name shows, for in common speech things are said to be adjusted when they match evenly. Equality is relative to another. With justice, in addition to this, that which is correct is constituted by a relation to another, for a work of ours is said to be just when it meets another on the level, as with the payment of a fair wage for a service rendered.”[li]
Law is an external principle of action and is distinguished from internal principles such as intellect, will, passions, and habits. External principles of action refer primarily to rules or norms of action, but the root problem of disorder is the human propensity to evil. In other words, disorder emerges from an internal principle of action. Justice regulates the external relations between individuals and between the ruler and the ruled, but human reality is neither bound nor determined by externality.
The “bumptious,” for example, remain “headlong in vice, not amenable to advice,” no matter the legal rules in place.[lii] If the legal and political environment finds a limit to its effectiveness in the persistence of disorder, it finds another limit of sorts in friendship. Friendship, as a form of love, exceeds justice for Aquinas, even in the political life of the city. Friendship for Aquinas:
“is a moral virtue about works done in respect of another person, but under a different aspect from justice. … For justice is about works done in respect of another person under the aspect of the legal due, while friendship considers the aspect of a friendly and moral duty, or rather that of a gratuitous favor.”[liii]
James V. Schall writes that unlike justice—which looks to the abstract relationship between persons in terms of what is due or not due, not to the persons themselves—friendship and charity look primarily to the person who is the object of our friendship or love:
” . . . Aquinas’ world is filled with something always more than itself, with a kind of abundance more like a gift than like something due in justice. The problem of the world is not that it reveals a kind of niggardly justice or subsistence but that it reveals an unlimited superabundance.”[liv]
While man may be a political—and legal—animal, he or she far exceeds these in dignity. If Aquinas considers the whole discussion of justice to be in need of something more than itself, it is because the authority of existence exceeds the authority of positive law and politics. “Aquinas does not think that human reality can ever be fully assumed under the virtue of justice, which does not direct itself to persons but to relationships.”[lv] Justice is the telos of the law because it is already the substance of the eternal law, but its positive enactment can only be directed at the field of external relations between people. The relations between individuals and the institutions of society, whether between rulers and the ruled or between citizens themselves, may certainly be regulated by a fundamental positive law; but if human reality is touched or guided by law, it is still not penetrated by the externality of political and legal relations in themselves.
In answering the question whether any true virtue is possible without love or charity, Aquinas writes that virtue is ordered to the good which is chiefly an end, and the ultimate and principal good of man is the enjoyment of God … to this good man is ordered by charity. … Accordingly, it is evident that absolutely true virtue is that which is directed to man’s principal good … and in this way no true virtue is possible without charity.[lvi] If the virtue of justice is a habitual orientation to the existentially embedded natural law, then justice finds its end in the superabundance of love. Or more properly stated: if the existence of man is already embedded in justice, then justice completes its realization in love.
Aquinas sees the content of justice as always tending toward charity. The virtue of justice in its positive enactments is adequate for the regulation of political community but, like political community, justice is radiant with a luminosity that simultaneously transcends yet grounds it. Justice, like political community, is necessarily surpassed by the existential authority that is love. Only under the authority of personal existence can love move individuals. For Aquinas, justice has its proper place, as does politics, but it does not hold the highest place in human reality. Justice is assumed, augmented, and completed by love, though not replaced by it. Political ties among citizens remain important, but are directed to enabling the pragmatic conditions under which the happiness of the virtuous life becomes possible for every person, a possibility actualized under the existential authority in every person. In this way, what both the political and legal orders must assume is their own limitation: the inexorable development from the externality of political relations to the transcendent depth of personhood. The political still holds, even while the inevitability of love supersedes it and gives it its proper place. This is the priority of existence.
Existence, Priority, and Love
“There is no parallel in Hellenic civilization to the passage in 1 John 4: ‘Who does not love, does not know God; for God is love . . . We love him because he first loved us.’ The development of these experiences of Johannine Christianity (which, it is my impression, were closest to St. Thomas) into the doctrine of fides caritate formata, and the amplification of this doctrinal nucleus into a grandiose, systematic philosophy of man and society, are the medieval climax of the interpenetration of Christianity with the body of a historical civilization. Here perhaps we touch the historical raison d’être of the West, and certainly we touch the empirical standard by which the further course of Western intellectual history must be measured.”[lvii]
This is a suggestion of Voegelin’s worth pausing over. He is suggesting that it is caritas that draws man beyond the measurable. Caritas, divine love, is the immeasurable. It is symbolically equivalent to Eriugena’s amatory motion. “The interpenetration of Christianity with the body of a historical civilization” was not realized in the structural duality of authority between the priestly and royal swords, according to the formulation of Pope Gelasius; nor was it exhausted by the Carolingian aspiration for a sacrum imperium. Rather, the unity evoked by Christendom was already the human person.
The gradual acknowledgment of the priority of existence, testified to by the authority incarnate in the existence of persons and the historicity of their communities, is more properly what constitutes the interpenetration that Voegelin claims. Where there has been a civilizational recognition that only the individual human person embodies an infinitely immeasurable center of meaning and commanding dignity, a center in which there can be no strict division between the temporal-mundane and the depth below consciousness, the priority of existence can become concrete in politics and law. It is the priority of existence that both anchors and yet surpasses politics and law; it is that which Aquinas has symbolized as caritas.
The authority of human existence—which is also the authority in which existence is constituted—is therefore not value-neutral, but always a moral authority. Existential authority is not so much the assertion of one’s dominion over the things of one’s own, such as life, liberty, property and so on, but more properly it means that another’s rights, another’s life, another’s liberty—in the second-person sense of your happiness—become the essential condition for one’s own. Existential authority means that one is already responsible for the other; in finding one’s own dignity and authority, one finds oneself under an obligation to secure another’s good. In the words of Levinas, the priority of existence renders us “something otherwise and better than being.”[lviii]
[i] Eric Voegelin, “Equivalences of Experience and Symbolization in History,” in The Collected Works of Eric Voegelin, Volume 12: Published Essays, 1966-1985, ed. Ellis Sandoz (Baton Rouge: Louisiana State University Press, 1990), 128.
[ii] For example, see Eric Voegelin, “Consciousness of the Ground” in Collected Works, Vol. 6, Anamnesis: On the Theory and History of Politics, ed. David Walsh (Columbia: University of Missouri Press, 2002). Also, Glenn Hughes, Myth and Mystery in the Philosophy of Eric Voegelin (Columbia: University of Missouri Press, 1993), 27-28.
[iii] Eric Voegelin, Collected Works, Vol. 18, Order and History, Volume 5: In Search of Order, ed. Ellis Sandoz (Columbia: University of Missouri Press, 2000), 123.
[iv] Emmanuel Levinas writes about the “surplus of truth over being and its idea,” a theme that lends itself well to the present discussion. See Levinas, Totality and Infinity: An Essay on Exteriority (Pittsburgh: Duquesne University Press, 1998), 291.
[v] Ibid., 79.
[vi] Levinas., Ethics and Infinity: Conversations with Phillipe Nemo, trans. Richard A. Cohen (Pittsburgh: Duquesne University Press, 1985), 87, 89.
[vii] Eriugena, Periphyseon, Bk. 1, in Basic Issues in Medieval Philosophy: Selected Readings Presenting the Interactive Discourses Among the Major Figures, eds. Richard N. Boseley & Martin M. Tweedale (Peterborough, ON: Broadview Press, 2006), 560.
[viii] Ibid., 566.
[ix] Ibid., 567.
[x] Ibid., 561.
[xi] Levinas, Totality and Infinity, 255.
[xii] The interplay between the historical material from this time and the process of differentiating authority is summarized in greater detail in Greenaway, The Differentiation of Authority: The Medieval Turn Toward Existence, ch. 1 “The Medieval Political Order to 1150” (Washington D.C.: The Catholic University of America Press, 2012).
[xiii] Hollister et al., eds., Medieval Europe: A Short Sourcebook, “Pope Gelasius I on Priestly and Royal Power” (New York: Knopf, 1982), 40.
[xiv] Ibid., “Unam Sanctam, 1302,” 161.
[xv] Voegelin, Collected Works, Vol. 20: History of Political Ideas, Vol. 2, ed. Peter von Sivers (Columbia: University of Missouri Press, 1997), 68.
[xvi] Berman, Law and Revolution: The Formation of the Western Legal System (Cambridge MA: Harvard University Press, 1983), 4.
[xvii] Voegelin, Collected Works, Volume 20, 107.
[xviii] Quoted in Berman, Law and Revolution, 88, from Brown, “Society and the Supernatural: A Medieval Change,” in Daedalus 104, 2 (1975): 134.
[xix] Aquinas, Summa Theologiae I, 29, 3b, in Great Books of the Western World, Volume 19: Thomas Aquinas: I, trans. Fathers of the English Dominican Province (Chicago: Encyclopaedia Brittanica, 1952).
[xx] Voegelin, History of Political Ideas 2, 221-22.
[xxi] Aquinas, Summa Theologiae I-II, 94, 4, in Great Books of the Western World, Volume 19: Thomas Aquinas: I, trans. Fathers of the English Dominican Province (Chicago: Encyclopaedia Brittanica, 1952).
[xxii] Aquinas, De regimine principum, 1, 7, 3. In James M. Blythe, trans., On the Government of Rulers, 74.
[xxiii] See Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Grand Rapids, MI: William B. Eerdmans, 1997), 182.
[xxiv] William of Ockham, Dialogue III, II, 2, ch. 28, in Medieval Political Philosophy, eds. Ralph Lerner and Muhsin Mahdi (Ithaca, NY: Cornell University, 1972), 497.
[xxv] Ibid. 501.
[xxvi] Ibid. 497.
[xxvii] See especially John of Paris, On Kingly and Papal Power, ch. 8, “The Relation of the Supreme Pontiff to the Goods of the Layman.” In Lerner and Mahdi, Medieval Political Philosophy, 415.
[xxviii] Ockham, Dialogue III, II, 2, ch. 27, in Medieval Political Philosophy, 496.
[xxix] If the U.S. Bill of Rights can be just considered an exemplary political document that roots political authority in the rights of man, the 1965 decree on religious freedom, Dignitatis Humanae can be seen as an example of its ecclesial counterpart. Roger Cardinal Etchegeray, president of the Pontifical Councils, comments: “The decree on religious freedom is based on the rights of the human person, not on the rights of the true religion.” Roger Etchegaray, “Culture chretienne et droits de l’homme, du rejet a l’engagement,” in Culture chretienne et droits de l’homme (Brussels: Federation internationale des universites catholiques, 1991), 8.
[xxx] Tierney, The Idea of Natural Rights, 54-55.
[xxxi] Voegelin, History of Political Ideas 2, 160.
[xxxii] See Berman, Law and Revolution, especially his introduction.
[xxxiii] The authority of Roman law was held in higher esteem than Lombard or other codes of law due to the myth of sacredness attached to it. Roman law was widely regarded as the absolute law of mankind. See Voegelin, History of Political Ideas 2, ch. 10 “The Law” for a discussion on the “canonization” of Roman law.
[xxxiv] Voegelin, History of Political Ideas 2, 173.
[xxxv] Tierney, The Idea of Natural Rights, 8.
[xxxvi] In particular, Tierney refers to Bonaventure’s development of four forms of common ownership associated with four categories of rights. See ibid., 36.
[xxxvii] Ibid., 38.
[xxxix] Ibid., 68.
[xl] Ibid., 67.
[xli] Ibid., 61: “Thus, where Gratian discussed customary law as a form of ius, the Ordinary Gloss commented that a custom was not established by repeated usage unless there was actually an intention to establish it, and then added, casually introducing the subjective meaning of ius, that this was true even when a person acted by virtue of his right (iure suo).”
[xlii] Ibid., 70.
[xliii] Aquinas, STI, II, 48 to 89, in Great Books of the Western World, Volume 20: Thomas Aquinas: II, trans. Fathers of the English Dominican Province (Chicago: Encyclopaedia Brittanica, 1952).
[xliv] STI, II, 90-108; STI, II, 109-114.
[xlv] Voegelin, History of Political Ideas 2, 223.
[xlvi] STI, II, 91, I.
[xlvii] STI, II, 93, 1.
[xlviii] STI, II, 91, 2.
[xlix] Voegelin, History of Political Ideas 2, 222, in reference to STI, II, 94, 2.
[l] See Voegelin, History of Political Ideas 2, 226-27.
[li] STII, II, 57, 1c.
[lii] STI, II, 95, 1c.
[liii] STII, II, 23, 3a.
[liv] Schall, “The Uniqueness of the Political Philosophy of Thomas Aquinas” in Perspectives on Political Science 26, 2 (1997): 86.
[lvi] STII, II, 23, 7.
[lvii] Voegelin, History of Political Ideas, Volume 4: Renaissance and Revolution, in Collected Works, Volume 22, eds. David L. Morse and William M. Thompson (Columbia: University of Missouri Press, 1998), 251.
[lviii] Levinas, God, Death and Time, trans. Bettina Bergo (Stanford, CA: Stanford University Press, 2000), 224.