Legal Supremacy: Marsilius of Padua’s Defensor Pacis

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

The idea of the ‘Principate’ in Marsilius’s Defensor pacis

In the Defender of Peace or Defensor pacis (1324), the great theorist Marsilius of Padua presents a pragmatic defense of the existing political situation of his time when the emperors tried to reestablish the wit of the monarchy that was being restrained by the multitude and also where the church was claiming unquestioned loyalty. Like Bartolo of Sassoferrato, Marsiglio too depended on the Aristotelian dictums and posed the weight of the ‘best of philosophers’ against contemporary authorities.

Aristotle has described the city in Politics Book I as “a perfect community possessing every limit of self sufficiency, as it is consequent to say, having thus come about for the sake of living, but existing for the sake of living well.” By stating this Aristotle outlines the final and perfect cause of a civil life: not just to live but to live well. Man is in need of different arts to sustain him and since perfect passion is not acquired before birth, man needs to achieve tempering by going beyond natural causes and using his reasons to create it. It is equally important to moderate the acts originating from one’s abilities so that it causes no injury or discomfort to others. In order to prevent the disintegration of a city owing to civil strife, Marsilius states the necessity of a judiciary or the councilor with a set body of rules to regulate what is beneficent/beneficial and just in a community. The ‘judiciary’ forms a part of the six part structure of a city that also includes ‘agriculture’, ‘manufacture’, ‘military’, ‘financial’, and ‘priesthood’ sectors (Politics Book 7).

The different parts of a city were constructed to attain a sufficient and privileged life and it came through a motive cause called the ‘legislator’. Marsilius refers to Aristotle’s idea in the Politics when he states that the legislator differentiates the parts of a city ‘in the manner of the nature of an animal’ (Aristotle claimed the city to be like an organic structure). The princely parts of the city-state are also referred to as the PRINCIPATES that are of two kinds: well-tempered and flawed. While Aristotle describes a ‘well-tempered principate’ as the governance of a state by a prince in accordance with the will of his subjects for general good, a ‘flawed principate’ is defined in quite the opposite terms.

The ‘tempered principate’ can further be subdivided into:

i) Royal monarchy

ii) Aristocracy

iii) Polity

The ‘flawed principate’ is sub-divided into:

i) Tyrannical monarchy

ii) Oligarchy

iii) Democracy

Marsiglio has made the divisions of the various principates in accordance with Book 3 and 4 of Politics and described them according to Aristotle’s understanding of the terms.

· While ‘Royal monarchy’ refers to the domination of a single man for common good in accordance with the will of his subjects, ‘Tyranny’ is considered an antithesis to ‘Royal Monarchy’. It is a ‘flawed principate’ where a single man dominates to his own advantage without the consent and will of his subjects.

· ‘Aristocracy’ is a ‘ tempered principate’ in which the ‘notables’ (the priesthood , the military and the judiciary who formed the part of a city in an unqualified sense) alone

govern the city-state for the common good. Contrary to it is the flawed principate ‘Oligrachy’ where the richer or the more powerful dominates over unwilling subjects by force.

· ‘Polity’ implies a specific type of tempered principate or regime where every citizen has a share in the councilor functions for common advantage whereas in ‘Democracy’ the plebeians or the multitudes of the poor establish the principate and rule by themselves without the consent of other citizens.

Principates can be broadly classified as being established over willing subjects or over unwilling ones. The ‘Royal monarchy’, the first in the category of ‘tempered principate’ is considered to be more perfect. Aristotle has claimed in Politics Book IV Chapter 8 that certain principates were termed ‘royal’ ‘because they were according to the law’ and ‘because they exercised monarchy over the voluntary’. The other was marked as ‘tyrannical’ for they ruled like masters and according to their own opinion. Marsiglio went on to affirm that the will of the governed subjects play a major role in determining the type of principate.

Mode of establishing the Principate:

While ‘tempered principates’ are established through election, ‘flawed principates’ are established through unfair means. Since the ‘royal monarchy’ is considered to be the best mode of government by Aristotle, he has enumerated the five modes of establishing it in Politics Book III Chapter 8:

i) Where the monarch is instituted for the completion of a single task like leading an army to battle (e.g. : Agamemnon’s election by the Greeks).

ii) Becoming a prince through hereditary succession (e.g.: certain Asian monarchs’ election). It is often considered a quasi-despotic law, for the citizens have to bear the barbarous and servile nature of the princes at times.

iii) A principate where an elected individual exercises the function of a prince. But it is quasi-tyrannical for being advantageous to the monarch rather than the subjects.

iv) A principate where some individuals are elected as the ‘prince’ with their posterity in accordance with the law.

v) Establishment of a prince as the lord of everything in a community, disposing of people and things according to his own will.

The remaining types of principates too can be established as governance over willing subjects (where he is elected by the multitude) or unwilling subjects (where he forces himself upon his subjects) that categorically marks them as tempered and flawed principates respectively. Hence, Marsiglio rightly concludes that the elected kind of principate is superior to the non-elected. This form of principate is also more enduring ‘for election can never fail, so long as human race does not’.

. A perfect analogy is drawn between the city-state and an animal where the principate is compared to the heart of an animal (here Marsiglio takes the idea from the Paduan physician Dino del Garbo, his contemporary). It is considered to be the most noble part of a city that works in accordance with reason and the virtue of which is the law (also referred to as ‘statutes’ or ‘customs’) that manifests(empowers) the principate to judge, command or execute sentences if and when required for a better living. Considered to be the most prudent and virtuous of all parts of a city, the principate is also entrusted with the task of dividing the city into various parts as per the law by designating men of required skill and disposition to their respective offices. This view of Aristotle stated in The Ethics Book I Chapter 1 (“for this ordains which disciplines should exist in cities and which each individual should learn and to what extent”) is propounded by Marsiglio in chapter 15 of the first Discourse of Defensor pacis. The efficient cause of the law, i.e. the legislator of the principate can either be the multitude or few virtuous men. It is their approval that is mainly required to pass a law concerning ‘various ceremonies or solemnities’. But the legislators should also take into consideration, while instituting the principates, that different multitudes at different places and time will prefer one form of principate over the others. So, it is the princely part that has to institute, differentiate and preserve the rest of the parts of a city in accordance with human law for the proper functioning of a city-state leading to a good way of life.

Sraddha Chatterjee, PG II

Roll No : 72

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.”