Marsilio of Padua
Every government is over either voluntary or involuntary subjects. The first is the genus of well-tempered governments, the second of diseased governments. ~ Marsilio of Padua
Aristotle and Dante were the springboards for the The Defender of Peace (Defensor pacis) (1324), a political treatise by Italian scholar Marsilio of Padua (1275–1342).
Though following Aristotle closely, Marsilio arrived at a conclusion widely divergent from other medieval Aristotelians. Marsilio was antithetical to Aquinas, who sought to harmonize reason and faith. Marsilio considered Christianity, in essence, belief in the supernatural, and so beyond rational discussion. The political upshot was that, in secular relations, the clergy was merely one class of society.
Such separation of faith and reason is the direct ancestor of religious skepticism. Its consequences are tantamount to a secular view which is inherently anti-religious.
Marsilio was artful, in simply stating that faith is too sacred for reason to touch. Practically speaking, there is scant difference between too sacred and too trivial.
Marsilio lived in one of the Italian republican city-states, a unique phenomenon for the time. From the 12th century, most of these city-states were self-absorbed: caring only for their own freedom of action.
These city-states only cooperated when threatened by an imperial expedition to enforce the emperor’s authority. They otherwise acted with a mixture of rivalry and distrust that characterized the Greek city-states 1,500 years earlier.
Padua was notably known for its spirited independence, including defending its authority against the local clergy and the Roman Curia, the church’s administrative apparatus.
Marsilio’s mental mold was characteristic of a middle-class resident of a free Italian city-republic with ancient secular traditions. His practice of medicine for many years fostered a critical, scientific view.
Marsilio identified strongly with Aristotle, who also lived in an urban, secular civilization. Like Aristotle, who also practiced medicine, Marsilio eschewed dogma and abstract speculation for an empirical sensibility.
Marsilio was also influenced by intellectual developments in Paris, where he spent a considerable portion of his formative years at the university there. Paris at the time was at the forefront of the antipapal movement.
Like Dante, Marsilio was a link from the Middle Ages to the modern age. But whereas Dante was essentially medieval, Marsilio was modern in his arguments, which were peppered with irony and skepticism.
Marsilio recycles Aristotle in identifying the 3 good forms of government as monarchy, aristocracy, and constitutionalism, as contrasted to those that are diseased: tyranny, oligarchy, and democracy (in which the masses practice majority rule “not entirely for the common benefit according to proper proportion”). Marsilio radically diverged from Aristotle by adding that, in decent forms of government, “the ruler governs for the common benefit in accordance with the will of the subjects,” while the diseased forms benefit rulers without common consent.
Marsilio anticipated modern political theory by highlighting the method of government rather than its objects: that the problem of governance is of means as much as of ends.
Law is the measure of human civil acts. ~ Marsilio of Padua
Marsilio’s break with the Middle Ages is clearest in his conception of law as an expression of political authority. Medieval writers typically assumed the law as “an ordinance of reason for the common good” (Thomas Aquinas).
Instead, Marsilio defined law as “a coercive command” by an authority that can “punish its transgressors.” This positivist conception abandoned the medieval tradition of natural law, moving law into the mundane form expressed by modern jurists; as early-20th-century American jurist Oliver Wendell Holmes, Jr. put it, “the prophecies of what the courts will do in fact, and nothing more pretentious.”
The legislator, or the primary and proper efficient cause of the law, is the people or the whole body of citizens, or the weightier part thereof. By the weightier part I mean to take into consideration the quantity and the quality of the persons in that community over which the law is made. ~ Marsilio of Padua
Marsilio’s use of the Latin term legislator has multiple implications. 1st is the political sovereign of a state, which Marsilio called the “absolute” legislator. 2nd is the modern legislative function of making laws, whether directly or by a select group (a legislature). 3rd is constitutionalism: that the authority of government derives from a fundamental body of law.
That the people are the rightful source of political authority was a basic idea in Roman jurisprudence and revived in the Middle Ages. Marsilio evolves the conception from a juridical fiction into a call for action.
Marsilio had a complex conception for the “weightier part” of citizenry. Though not intending elitism per se, Marsilio wanted quality taken into account in determining the legislature. Marsilio was undogmatic in knowing that there could be no formula for qualitative standards; that it must be “in accordance with the honorable custom” of the community.
Marsilio wrote in the 14th century, when socioeconomic inequality was taken for granted. Even now equality is at best a polite fiction. Countries where the “legislator” is equally attendant to “the whole body of citizens” are nonexistent.
The British experience illustrates Marsilio’s “weightier part.” The settlement of the Glorious Revolution of 1688 established in England the principle of parliamentary supremacy rather than popular sovereignty in the sense of equal suffrage.
A relatively small number of men – the weightier part of the citizenry – governed the country. This was a transitional step from monarchy to equal suffrage, which only came to fruition in England in 1948 when plural voting (giving businesses and universities unequal representation) was abolished.
The United States too has a qualitative aspect to its Congress. Its senate provides deliberate overrepresentation of less-populous states. This derivation from simple suffrage arithmetic owed that country’s federalist tradition but is a significant statistical departure from the egalitarian democracy which Americans pretend they have.
Marsilio saw freedom primarily as procedural self-government, which despotism lacks, regardless of how good its legislator is.
The elected kind of government is superior to the non-elected. ~ Marsilio of Padua
Just as Marsilio derived the law from an empirical source, he also based the authority of rulers on the will of the community, through election.
The traditional medieval view was that a ruler held office via divine sanction (Catholic dogma), with supposedly superior virtue and wisdom (the Platonic ideal of philosopher-king). Marsilio’s more modern, democratic take was that the authority of a ruler owed to his election, “and not by his knowledge of the laws, his prudence, or moral virtue, although these are qualities of the perfect ruler.”
Most of the citizens are neither vicious nor undiscerning most of the time; all or most of them are of sound mind and reason and have a right desire for the polity and for the things necessary for it to endure, like laws and other statutes or customs. ~ Marsilio of Padua
A minimum of optimism about human nature is requisite for any confidence in democracy. Marsilio conceded that few are sufficiently learned to craft good laws, but he made a leap of faith in assuming an overall quality in the citizenry that Aristotle never could.
The law is more usefully made by the wise and learned than by the unlearned and uncultivated, it seems that the authority to make laws belongs to the few, not to the many or to all. ~ Marsilio of Padua
Marsilio had trouble squaring the circle of quality in the legislator. The qualified few might take advantage of their position.
The common utility of a law is better considered by the entire multitude, because no one knowingly harms himself. Anyone can look to see whether a proposed law leans toward the benefit of one or a few persons more than of the others or of the community, and can protest against it. Such, however, would not be the case were the law made by one or a few persons, considering their own private benefit rather than that of the community. ~ Marsilio of Padua
There is an impractical dissonance to this. The legislator, selected from the “weightier part” of the citizenry, is admittedly subject to corruption, which might be checked by public review of proposed laws.
Alas, Marsilio is silent on how to make this process feasible. He is prescient in anticipating the problem of plutocracy, which is amply manifest in many democratic legislatures, most notably the United States.
If a ruler violates his trust of office, Marsilio thought that the legislator, which establishes the law, must rectify the malfeasance. The legislator temporarily becomes the ultimate power, as there must not be competing authorities. Also “because he is corrected not as a ruler but as a subject who transgressed the law.”
Marsilio rolled the role of judiciary into the legislative branch of government. He did not conceive of a separate judicial branch, which might have the responsibility of adjudging the quality of laws as well as determining and punishing transgressors.
That rulers were ultimately accountable to the people was typical of the Middle Ages. Whereas most medieval writers looked to divine punishment for remedy, or, in extremis, tyrannicide, Marsilio groped for an institutional response.
Marsilio’s conception of the governance as coercive social regulation according to the will of the political community was aimed at despotism, whether by laymen or clergy. His most revolutionary doctrine regarding the church, the one that made its mark on Protestantism, was the idea of congregational authority.
Marsilio had the bold thought that the church had no coercive authority over heretics, which he anyway had trouble construing as a moral offense. If heresy was a transgression, it was up to the secular authorities to deal with it. Marsilio picked an extreme example to argue that the church had no real power in a civil society.
The Middle Ages ended with the displacement of faith in God to faith in human reason, and from belief in papal and imperial authority to that of secular nationalism.