Most legal words are derived from the Latin word lex, meaning “law” or “statute”. Interestingly, the word lex itself seems to be related to the Latin legere which means “to read”. Etymologically, legal things are readable. This idea may be linked with Marsilius of Padua’s belief that law must be written because the spoken law of the monarch is not adequate for society. With writing and codification, law is distinguished from and raised above the mere customs or practices of a given society. Aristotle (whose works are quoted through the great extent of Defensor Pacis) provides a simple explanation of law in terms of two distinct categories: particular law and universal law. Universal law is “the law of nature” whereas particular law refers to a set of rules which is laid down by the members of a community.
Marsilius of Padua had deeply imbibed Aristotle’s Politics, and his own understanding of city-states was strengthened by his knowledge of the institutions of Lombard city-republics. He wrote about the “perfect” form of government intended by Nature through the gradual growth of human communities. Such communities would include various classes of men including the priesthood, Principans, the executive, and the legislator.
In Defensor Pacis, Marsilius explains that there can be several meanings of the word “law” but among its various implications the most significant meaning is “a natural inclination of the senses towards some action or passion”. He explores the importance of the government of a perfect community by a set of laws or customs, and what such laws actually mean, and the application of laws by various agents.
“Law has coercive power, being speech for a certain prudence and understanding” (Nicomachean Ethics X, 1180a21–2). Marsilius refers to this understanding of law in Aristotle when he describes law as a command or “coercive power” applied by someone who is guided by his sense of observation of what is right and just. The understanding of this “coercive power” which is relevant for maintaining peace in a community is what makes Marsilius’ understanding of law distinctive from others. Thomas Aquinas, for example, asks “Can anybody’s reason make law?” (Summa theologiae IaIIae q. 90 a. 3) because he does not entirely believe that law is guided by reason. For him, the idea of coercive power is linked rather with the idea of giving penalties to a wrongdoer because reasoning with a criminal may not be enough for the larger community.
The primary necessity of law, according to Marsilius, lies in civil justice and common advantage. Law also ensures the security of the position of the prince and their long principate. In order for a community to function properly laws are necessary and it is equally important for the law to be appropriated by someone who can judge rightly. When the laws are written down for a community, and thus made objective, it is not possible for even a corrupt prince to let his own intemperance affect judgment. The written law is universal and independent of external influence. Drawing upon Aristotle, Marsilius asks “whether it is better for a polity to be ruled by the best man without law, or by the best law”.
Aristotle had emphasized the importance of the politician as an able lawgiver (nomothetês), as one who frames the laws, customs and institutions of the city state. But Marsilius recognizes that it is not always possible for a single lawgiver to be just and right at all times. In discussing this, he comes to the conclusion that the best judgment can be passed when the element of passion is absent. But this is not entirely possible because personal feelings often come into effect while giving a verdict. Moreover, ignorance can result in wrong judgment. Marsilius provides a solution for the appropriation of law in the right way – it has to be written and made accessible to all so that it is easier to refer back to it whenever the need arises. For Marsilius, the purpose of law is to “exclude malice and error from the civil judgments or sentences of judges.” Important to Marsilius’ discourse is the role of the legislator, the lawmaker.
Although he quotes extensively from Aristotle’s work, Marsilius also seems to be influenced by Plato’s Nomoi or Laws. Plato emphasizes the importance of a legal order which is passed democratically by an assembly of people, and mentions that government should be subject to the rule of law. In this dialogue Plato also explores the important question of who lays down the laws. This very question is taken up by Marsilius while trying to establish how a body of people is relevant for passing laws. For him, the human legislator is ideally a community of people, not a single person. When Marsilius was writing about the human legislator he was aware of the tension between populo grasso and populo minuto in the Italian cities. Marsilius carefully treads a middle path while exploring whether the whole multitude should rule or just some people. It is important to understand who can speak in legal matters of the community because women, children, and slaves are entirely excluded from this process. The ‘collective’ is important because according to Marsilius the “whole” is more reliable than the “part”. When a community or a collective passes a law it is more likely that everyone’s interests will be taken into account. It is important to remember here that medieval canonists also maintained that acts need to be authorized by major et saniors partes (“greater and sounder parts”) of the community.
Marsilius also notes that people do not necessarily need to use their collective legislative powers, and instead can entrust it to a ruler who can act as a representative of the larger community. This is how the installation of the ruler is relevant, but again this can only be done by popular consent. Marsilius was radical not only in his idea of state and law but even more so in his conception of the Church. He felt that in all types of appointments, and functions of the priesthood is responsible to the legislator and its deputy, the principan.
In the wake of Plato and Aristotle, Romans believed that all men had, by nature, an instinctive knowledge of what was right and what was wrong and they also believed that it was possible to frame laws in accordance with nature. To them, law was Ius Gentium – of all people. Propelled by this universalism they found it difficult to understand how Barbarians had different laws and how the Barbarians could claim that their own laws were peculiar to them. These laws were not founded on nature or reason but on the dictates of their own ‘divine ancestors’. The Barbarians, who subsequently felled the Roman Empire in 476 A.D., accepted Christianity as the state religion and brought about the ‘Medieval Age’ in Europe . This presented the first break with classical Graeco-Roman thought with regard to laws. Medieval Europe was encompassed by the Christian Church and theological laws overshadowed natural law, rational law, and even local customs. Marsilius of Padua challenged the Church’s authority to frame laws on behalf of civil society except in spiritual matters, and revived Aristotelian understandings of law. As a scholastic, Marsilius tried to harmonize classical theories of law with the views of medieval theologians.
Marsilius’ idea that law is sovereign, and above the human legislators who instituted it, remains powerful today. Indeed, it may even be said to be the essence of our modern democracy.
- Shreya Sarkar (PG II); Roll no. 30
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