Marsiglio's Notion of the Human Legislator

The tenth chapter of the First Discourse of Marsiglio’s Defensor Pacis begins with an assertion of the requirement for a ‘standard’ or ‘law’ according to which the principate must regulate human civil acts. According to Marsiglio, this ‘standard’, also known as ‘statute’ or ‘custom’ exists in all ‘perfect communities’. The rule of law, even though a product of human endeavour, is that which ensures the proper exercise of responsibilities both on the part of the ruler, and on the part of the subjects.

Marsiglio talks about two distinct ways in which ‘law’ can be considered: first, as a natural inclination towards the right; and second, as something that is extrapolated and laid down for us to follow.  The first kind of law is based on tendency, while the second is a coercive instrument or a ‘pronouncement’ that arises from a certain ‘prudence’ and ‘understanding’.

In the eleventh chapter, Marsiglio claims that the principal objective of law-making is the assertion of civil justice and common advantage, and a secondary objective is a security for those in the position of the prince. For a civil judgement to be good and just, felt Marsiglio, there is a need on the part of the judges for an insightful understanding of the matters to be judged. The presence of the opposite of such qualities, like personal prejudices or even avarice, may corrupt the judgements. This is where law-making becomes a necessity; for laws, according to Marsiglio, are free from such ‘perverted affection’, and are formulated universally, with regard to the individual acting against or in accordance with civil terms. Judgement is also corrupted by the ignorance of judges, however noble their intentions may be. While this sort of a shortcoming can be remedied through law, as it contains a complete and comprehensive explanation of what is just and what is unjust, the formulation of such a body of law cannot be achieved by a single man. Laws are constantly subject to amendments carried out over vast periods of time, and this has already been confirmed by Aristotle in his Rhetoric where he wrote that “acts of legislation take place out of things that have been considered for a long time.”

The knowledge and discovery of one man, in what is just and advantageous in civil terms is inadequate, when compared to knowledge accumulated over many years by the mutual aid of men. Law may therefore, be considered the result of an ‘understanding forged from the understanding of many’, in order to avoid error of civil judgement. For this reason, states Marsiglio, it is important for laws to be laid down in writing.

This leads us to the question of the nature of the law-making body, or the legislator, which Marsiglio discusses in considerable detail in the twelfth chapter of Discourse I of Defensor Pacis. Marsiglio derives the notion of the ‘legislator’ directly from Aristotle’s Politics (Book III, Chapter 6) where he defines the ‘legislator’ as being “the people or the universal body of the citizens.” This body of citizens may make the law directly itself, or may delegate or elect another body that has been authorized by the primary legislator, to carry out the work. Any amendment in the form of addition to or subtraction from the laws must also be made by this primary legislative authority. Moreover, the task of publication and dissemination of the laws must also be carried out by this authoritative body, in order to ensure that no citizen commits an offence on grounds of ignorance. It is this body of citizens that constitutes Marsiglio’s notion of the ‘human legislator’.

The primary human authority that can institute human laws belongs to that legislator from which the best laws can result. It can be argued, however, that it is impossible for all persons to agree upon the same decision or opinion, because some individuals have a ‘stunted nature, which through malice or ignorance is out of harmony with the common view.’ But civil judgements that are advantageous to society at large must not be impeded because of such opposition. This authority to institute laws lies in the hands of the ‘universal body of the citizens or its prevailing part’. Marsiglio believes that a greater number of people can exercise better discretion in the making of a particular law, since every ‘corporeal whole’ exercises greater strength and power of judgement than a smaller part of it. A universal body of citizens will be better able to formulate laws of greater common utility, since no one will knowingly frame laws to his own detriment. Every member of this universal multitude can check whether any law tends more to the advantage of a specific person or community, and can protest against it. Needless to say, this would hardly have been possible if the law-making body comprised one or very few individuals. Marsiglio concludes this section by observing that the laws instituted by the human legislator would be redundant if they are simply formulated but not obeyed. Once again, Marsiglio draws this idea from Aristotle’s Politics where he wrote: “It is not however a good arrangement of laws, that laws should be well laid down, but not obeyed” (Book VI, Chapter 6). Any citizen will be more willing to obey such laws as he himself has created, rather than those that are imposed upon him by the ruler or despot.

In chapter thirteen, Marsiglio responds to possible objections to his previous exposition. He considers three possible arguments:

First, the assumption that a greater portion of the multitude of citizens is wicked, undiscerning or ignorant and should therefore be excluded from the legislator. Therefore the ultimate task of making laws should lie in the hands of a few virtuous and learned individuals. But Marsiglio counters this argument by saying that even though the authority to legislate cannot belong to a body that is largely ‘wicked and undiscerning’, that is by no means the nature of the universal body of citizens. Even though the greater number of citizens may not be capable of formulating the laws, it can, at the very least, perceive if something should be added, removed or changed.

Second, the argument that fewer people would be more likely to reach an agreement, instead of a multitude of citizens. Marsiglio points out, that even though it might be easier for a fewer number of people to reach an agreement, it does not necessarily imply that their decision will be superior to that of the sceptics. On the contrary, if the human legislator comprises fewer individuals, these members will be more likely to create laws for their own benefit.

And finally, the idea, that employing a large body of citizens to undertake a task that can be accomplished by a smaller body is a futile exercise. Marsiglio believes that such an argument can be easily defeated. He says that even if one is to accept that better laws are passed by wiser men than by the less learned, that does not necessarily mean that the greater multitude of citizens (of which, the wise men form a part) is altogether incapable of passing better laws.

The notion of ‘law’ is therefore of critical importance to Marsiglio. He seems to have enormous confidence in the abilities of the human legislator – this ‘corporate gathering of people’ – to formulate laws which are most suitable for the life of the collective. As Janet Coleman observes in her book titled A History of Political Thought, “Marsiglio tries to show that there is no such thing as a spiritual jurisdiction, because the very meaning of jurisdiction is the capacity to establish laws which coerce the non-compliant; and this capacity may only be legitimately actualised by the corporate will of the citizen body of any city or state.”