The Divine Law and the Civil Law

Of Marsillius of Padua

 _______________________

Mohamed Ahmed Suleiman

Assistant professor

Medieval christianity and theology

Beni Suef University

Egypt

 

Preface:

The influence and the role of Greek philosophy have not ceased to leave their traces in the Middle Ages, from the first century A.D. until the 13th century, Ancient Greek philosophy was represented by two main sources, the source of Aristotle and the source of Plato. Since then, all the philosophies that appeared in this period took their sources either from Plato or from Aristotle. Marsillius of Padua was one of these political philosophers who are influenced by Aristotle’s political philosophy. From this influence that Marsillius took, he wanted to make an application to political Christian philosophy in the 14th century. Marsillius had used the basic Aristotelian concepts to create a secular political philosophy that can be freed from the religious power that ruled then and had its influence on the political life of the medieval states. The time therefore was appropriate for such thought to emerge because political life was not stable: on the one hand, there was the conflict between the fathers of the church and the kings, on the other hand there was the evolution of the mind that had begun at that time which understood the changes that were being made and were an introduction to the renaissance later on.

At that time, people were bored with the religious authority that governed and intervened continuously in all the fields of people’s lives. Also, the mind was able to understand the things on its own and to discover the reality of truth away from the power of the religious kings who had all the rights to decide on the lives of the people. As a result of all these, Marsillius wanted to divide the religious law from the state law, because each has its own field, and every law cannot enter the field that should not.

The Life of Marsillius:

Born between 1257 and 1280 in Padua, in the Mainardini family and his father was the rector of the University of Padua[1]. He studied medicine at the college campus and was a colleague with Albertino Mussato who made Marsillius change his direction from law school to medical school because Marsillius was a little confused between the law school and the medicine school[2]. Marsillius also had a lot to do with the family of Della Scalla in Verona and Matteo Visconti in Milan[3]. The most important event in his life was on 12-3-1313, when he became rector of the University of Paris. Since then his reputation has begun and has begun to take an active part in the scientific life of the 14th century. Then, in 1318 Pope John XXII chose him for some religious positions[4]. In 1326 Marsillius and his friend John of Jundun left France and went to Nuremburg, the palace of King Louis IV, who was then in conflict with the religious authority over the king’s rights against the power of the Pope in Germany and Italy[5]. Pope John XXIII has condemned Marsillius and his works. Then Louis IV found the opportunity to work with Marsillius (but with other important persons such as John of Jundun and William of Ockham[6]) to help him with the problems he had with the Pope.

The works of Marsillius:

Marsillius wrote three major political works throughout his life, which greatly influence medieval Western culture. His works were in sequence as follows: 1- Defensor Pacis 2- Defensor Minor 3- De Translatione Imperii.

The Defensor Pacis was completed in 1324, and Marsillius became famous for this work. The project contains three parts: the first part speaks of the origin of civil society and political power, the second part about the conflict between political and religious power, especially between the king and the pope, the third and final part about results and conclusions that Marsillius drew from this work[7]. In this book, Marsillius separates political power from the religious authority, and the conclusions he drew from it was that political power has been in its stage as the religious power has its own stage, and this means that its priests church have no political influence over the kingdoms. Also, the role of the state is to offer a good social life to the people as the church leads the people to the good, and this means that Marsillius separates the political power from the religious one. Defensor Minor attaches great importance to the relationship between the King and the Pope[8], and this was a logical result for the political events that took place between Louis of Germany and the Pope in 1322[9]. This project contains 16 Chapters in each chapter Marsillius seeks the relationship between the positive law and political law and the relationship between political and religious authority.

De Translatione Imperii is considered to be the most important work in relation to the other works on politics and religious power. Marsillius purpose in this project is to prove the kings’ right to political power. It also has to prove that the priests of the church have no right to cast or put the kings in their place[10]. This project contains 12 chapters. In each chapter, Marsillius explains the evolution and source of the Roman Empire[11]. His unique political source comes from Aristotle[12], and this seems clear in his writings. In many cases he refers to Aristotle as a political power that shows the way to establishing his own political system. And something else that Marsillius says is that Aristotle may have forgotten to write something about religious and political power, so Marsillius says that his work is a complement to what Aristotle has forgotten[13]. Marsillius was also affected by Stoic philosophers and by Cicero as he clearly stated in his work. On another side, he was influenced by the Apostle Paul and the Old and New Testament.

The concept of law:

The law in Marsillius opinion has many meanings. Firstly, it means that the law is a physiological motive for a movement or will[14], according to the letter to the Romans: “But I see another law in my body, working against the law of my mind, and making me the servant of the law of sin which is in my flesh’[15]. Secondly, the law means something that defines and constrains everything in a certain way[16], according to the Old Testament: This is the law of the house: On the top of the mountain all the space round it on every side will be most holy. See, this is the law of the house. And these are the measures of the altar in cubits: (the cubit being a cubit and a hand’s measure; its hollow base is a cubit high and a cubit wide, and it has an overhanging edge as wide as a hand-stretch all round it[17]. Third, the law is the advice, the instructions and the attention of the actions of the people[18], which means that the law is a guide for all the people who lead them to good and peace, it is sufficient not to exempt a person from the law, and this agrees with the letter to the Hebrews: Because if the priests are changed, it is necessary to make a change in the law[19]. Fourthly, the law is an urban power that drives the citizens of the state to the good and the peace in all civilian interests, and it shows the just and the unjust[20].

The Necessity of Law:

The necessity of the laws is to have civil justice[21]; only by law we know the good from the evil, the right from the wrong, and without the law, nothing goes well in the state[22]. From this point we can observe that Marsillius attaches a great importance to the civil law to take care of the state and not of the divine law, because Marsillius prefers and believes the positive law when it comes to the state.

The sources of law:

The only power that legislates the law is the citizens, and nothing else is considered as a source for the law. Citizens within a commission are legislating laws in accordance with citizens’ needs[23]. Marsillius says that there are people and people who are educated and have great experience. Only they have the right to legislate laws, they are the legislators. These legislators come to power with elections from all citizens[24]. Here, Marsillius takes the first steps of medieval democracy, saying that the power and law of the state come only from the citizens, not from the priests, for in this case only the people who legislate their laws in accordance with civil justice.

 

Types of law:

Marsillius separates the laws into two basic parts, first, the divine law, second, the civil law. The law of God is the commandments, orders and ordinances coming from God[25]. This divine law was sent to us through the prophets and the messengers. We human beings understand God’s law only through those who bring it to us from God[26]. God is the only one, who regulates the divine law without any help from anyone, and one cannot blame others for this law except God, as it is written in the letter, there is only one judge and law-giver, even he who has the power of salvation and of destruction; but who are you to be your neighbor’s judge?[27] , also, for these words did not ever come through the impulse of men, but the prophets had them from God, being moved by the Holy Spirit[28].

Civil law is the principles which are derived from the people, according to human actions, and also serves the human needs, the human purposes and the ends of human hopes in everyday life. This civil law has four main purposes as follows:

1- The emphasis on the actions and foundations of the tasks of the citizens.

2- Explaining these bases to the citizens.

3- Applying the principles within a coercive power that does not allow for exemption or forgiveness for those who do not obey the law.

4- The presence of the authority that takes care of and enforces laws in the state[29]. With these bases Marsillius defines the civil law.

 

The above results are as follows:

1-No one can legislate the divine law.

2-No one can change, neither put it nor break the principles of the divine law.

3-Civil law is a reasonable result for the actions of the people; it is enacted by the human legislator with the help of the citizens who vote for it.

4 – None of the priests, archbishops and religious people in any position, has the right to change or legislate on civil law, for only the legislator has this right which he has received from the governor according to the interests of the citizens[30].

5-The Romans in the opinion of Marsillius is subject to the Roman ruler, and not the Pope, but all those who have a religious position in the church, all are nationals under the ruler’s authority, because Marsillius believes only a political power over all citizens and there is no intention of having two powers, because if there are two powers this will surely destroy the state[31].

The distinction between the divine law and the civil law:

As Marsillius says, civil law is applicable to the state, and there is no other law to be enacted except by the civil law. This means that the divine law does not apply to citizens in political life, because the law of the Holy Scripture contains the orders and commandments along with the decrees that lead people to salvation in another life, not to punish the citizens in our own life now. But civil law is the one that can punish people because this law was created by the will of the people. Marsillius does not definitively separate the two laws, because there are common aspects among them, there are orders in the two laws that are the same, for example the two jurisdictions do not allow stealing somebody else, neither to lie, nor to kill the others, not to tease others, generally the moral teachings supported by both jurisdictions[32].

The Judicial authority and Legislation:

Each law of the two laws has its own legislator, because there are two types of legislation, the divine law and the civil law. So the source of the divine law is the God who sends us the prophets and the missions as applied to the disciples of Christ, and from the other side, the civil law is the governor who has the power of the citizens and gives it to the lawmaker, who gives authority to the judge to apply the law and punishes those who do not respect the law[33], as the Gospel of God says to you. For he is the servant of God to you for good, But if you do evil, have fear; for the sword is not in his hand for nothing: he is God’s servant, making God’s punishment come on the evil-doer[34].

And as for the divine law, there is also a judge, who has the power to punish those who do not obey the divine law. This judge is Christ, as the Bible says to us, there is only one judge and law-giver, even he who has the power of salvation and of destruction; but who are you to be your neighbor’s judge? [35]. Since it appears, Christ is the judge in the divine law, and punishes the aggressors, not in this world, but in the other life as Christ himself said, “And Jesus said to them, Truly I say to you that in the time when all things are made new, and the Son of man is seated in his glory, you who have come after me will be seated on twelve seats, judging the twelve tribes of Israel[36].The power of the priests and fathers of the church are not applied to civil life, because their role is to lead citizens to good and peace, not to punish them, as Christ told them[37], also, Go then, and make disciples of all the nations, giving them baptism in the name of the Father and of the Son and of the Holy Spirit:         Teaching them to keep all the rules which I have given you: and see, I am ever with you, even to the end of the world’[38]. As Marsillius says, they have no power in civil life, as Christ has no civil power, and this is apparent from his words when Jesus said “Jesus said in answer, My kingdom is not of this world: if my kingdom was of this world, my disciples would have made a good fight to keep me out of the hands of the Jews: but my kingdom is not here[39].

In the end, Marsillius says that everyone must obey the civil law, the priests, the fathers of the church, and the citizens, because the Gospel says[40], “Let everyone put himself under the authority of the higher powers, because there is no power which is not of God, and all powers are ordered by God. For which reason everyone who puts himself against the authority puts himself against the order of God: and those who are against it will get punishment for themselves. For rulers, are not causes of fear to the good work but to the evil, if you would have no fear of the authority, do well and you will have praise; for he is the servant of God to you for good? But if you do evil, have fear; for the sword is not in his hand for nothing: he is God’s servant, making God’s punishment come on the evil-doer. So put yourselves under the authority, not for fear of wrath, but because you have the knowledge of what is right. For the same reason, make payment of taxes; because the authority is God’s servant, to take care of such things at all times. Give to all what is their right: taxes to him whose they are, payment to him whose right it is, fear to whom fear, honor to whom honor is to be given[41].

The conclusion drawn by Marsillius of this text is that all religious powers must obey civil power, because the Bible tells us to obey the political civil power, as the Evangel says[42].” Keep all the laws of men because of the Lord; those of the king, who is over all[43]. Here we have to contend with Marsillius that the divine law and its lawmakers are not subject to the governor, because the legislator of the civil law has nothing to do with the legislator of the divine law, but has the power to punish everyone when they do not obey the civil law[44]. The task and duty of the priests is therefore to preach and teach their citizens the ways to the savior[45].

The difference between the two jurisdictions:

Laws as says Marsillius agree and differ, agree on the good and the peace of man, but differ in the nature of every law, one is civil and the other is divine. The legislator in the divine law is God, while in civil law the legislator is a citizen[46]. The purpose of the divine law is the salvation and the kingdom of the heavens, but the purpose of the civil law is the peace and stability of the state. Punishment in the divine law comes only from God in another life, but in the civil law it is from the governor to the civilian life. The divine law is stable and does not change, but civil law can be changed according to the needs of the citizens[47].

Conclusion:

Marsillius has not created all these political sayings from nothing, because in addition to religious affairs, we can say that Marsillius influenced by Plato and by Aristotle. Plato inspired Marsillius the need of people for laws to be well prepared and take care of their lives, because people according to Plato are required to gather and to legislate laws and obey them in an effort to reach the best recipes, and when they do, then the need to obey it is necessarily in accordance with what is legislated by the state and the legislators[48]. A law says Plato must convince people not to compel them by force, and he who governs the state is the law that agrees with the mind, and obedience to the law is the purpose of justice[49]. Marsillius was influenced by Aristotle when he speaks of the meaning of the law, and the need for laws, and also when he talks about the value of laws shows us the good from evil and the right from wrong[50]. Generally, Marsillius has a lot of courage to talk about such matters in the thirteenth and fourteenth century, because the medieval mind began to understand the changes in Europe and the need was mandatory to rid the world from the religious power that ruled then for many years. Marsillius was a man who did not accept the power of the priests and believed much the political civil power to rule the state, and this effort was very important step in the middle Ages and was a true light, which paved the way for the age of reform.

 

Bibliography:

The works of Marsillius:

  1. Marsillius of Padua: De Translatione Imperii translated by: Fiona Watson and Cary J. Nederman, Cambridge University Press, London, 1993.
  2. Marsillius of Padua: Defensor Minor, Cary J. Nederman, Cambridge University Press, London, 1993.
  3. Marsillius of Padua: Defensor Pacis translated by: Alan Gewirth, Culombia University Press, New York, 1956.

General Bibliography:

  1. Blythe, James: Ideal Government and the Mixed Constitution in the middle Ages. Princeton: Princeton University Press, 1992.
  2. Brett, Annabel. Liberty, Right and Nature: Individual Rights in Later Scholastic Thought. Cambridge: Cambridge University Press, 1997.
  3. Burns, J.H. (ed.): The Cambridge History of Medieval Political Thought c. 350-c. 1450. Cambridge: Cambridge University Press, 1988.
  4. Canning, Joseph: A History of Medieval Political Thought 300-1450. London: Rutledge, 1996.
  5. Carlyle, R.W. and A.J.: A History of Medieval Political Theory. Edinburgh: Blackwood, 6 vols. 1930.
  6. Coleman, Janet: “Medieval Discussions of Property: Ratio and Dominium according to John of Paris and Marsillius of Padua”, History of Political Thought, 4: 209-228, 1983.
  7. Garnett, George: Marsillius of Padua and ‘The Truth of History’. Oxford: Oxford University Press, 2006.
  8. Gewirth, Ala: Marsillius of Padua, the Defender of Peace. New York: Columbia University Press, 1951, 1956.
  9. Gierke, Otto Friedrich von: Political Theories of the Middle Age, trans. F.W. Maitland. Cambridge: Cambridge University Press. Luscombe, D.E. [1988] “Introduction: The Formation of Political Thought in the West”, in Burns [1988], pp. 157-73, 195.
  10. Nederman, Cary: Community and Consent: The Secular Political Theory of Marsillius of Padua’s Defensor Pacis. Lanham: Rowman & Littlefield, 1995.

[1] – A. Vacant ET E. Mangenot: Dictionnaire de théologie catholique, première partie, librairie Letauzey ET Ane, Paris, 1928, p.153.

[2] – Idem. P. 154

[3] – Cary j. Nederman: introduction of Defensor minor and de Translatione Imperii of Marsillius of Padua, op.cit.p.9.

[4] – Idem.

[5]http://www.swif.uniba.it/lei/foldop/foldoc.cgi?marsilius+of+padua.

[6]http://www.amazon.com/political-thought-william-cambridge-medieval/dp.

[7] – Cary j. Nederman: introduction of Defensor minor and de Translatione Imperii of Marsillius of Padua, op. cit. p.11.

[8] – Cary j. Nederman: introduction of Defensor minor and de Translatione Imperii of Marsillius of Padua, op. cit. p.20.

[9] – Ibid.

[10] – Marsillius of Padua: de Translatione Imperii, translated by: Fiona Watson and Cary J.Nederman, op. cit. pp.66:67.

[11] – Ibid.

[12]http://www.fordham.edu/halsall/sours/marsiglio4.html.

[13] جورج هـ. سباين: تطور الفكر السياسي، ك2، ترجمة: حسن جلال العروسى، مراجعة وتقديم: د. محمد فتح الله الخطيب، دار المعارف ، القاهرة ، 1956، ص. 406

[14] – Marsillius of Padua, D. P. p. 36.

[15] – Προς Ρωμαιους, 7:23.

[16] – Marsillius of Padua, D. P. p. 36.

[17] – Ιεζεκιήλ: 43:12-13.

[18] – Marsillius of Padua, D. P. p. 36.

[19] – Προς Εβραιους: 7:12.

[20] – Marsillius of Padua, D. P. p. 37:38.

[21] – Ibid.  pp.37:38.para.1.

[22] – Ibid.

[23] – Ibid. P.46. Para. 5.

[24] – Ibid p.44 Para 2.

[25] – Marsillius of Padua: Defensor Minor translated by: Cary J. Nederman, Cambridge university press, London, 1993, p.1, para.2.

[26] – Ibid. P.2 Para. 2.

[27] – Επιστολή Ιακώβ, 4:12.

[28] – Επιστολή Πέτρου Β, 1:21.

[29] – Ibid. P.2 Para 5

[30] – Marsillius of Padua, D. M., op.cit, p.4, Para 6.

[31] – Ibid. p.4 Para. 7.

[32] – Ibid. p.44 Para. 3.

[33] – Ibid.

[34] – Προς Ρωμαίους, 13:4.

[35] – Επιστολή του Ιακώβου, 4:12.

[36] – Κατά Ματθαίον, 19:28.

[37] – Marsillius of Padua: D. M., op. cit. p.48 Para 8.

[38] – Κατά Ματθαίον, 28:19-20

[39] – Κατα Ιωαννην, 18:36.

[40] – Marsillius of Padua: D. M., op. cit. p.50 Para 9.

[41] – Προς Ρωμαίους, 13:1-7.

[42] – Marsillius of Padua: D. M., op. cit. p.54 Para 3.

[43] – Επιστολή Πέτρου, Α, 2:13.

[44] – Marsillius of Padua: D. M., op. cit. p. 55. Para.4.

[45] – Marsilius of Padua: D. M., op. cit. p.56 para. 4.

[46] – Marsillius of Padua: D. M., op. cit. p.56 Para. 4.

[47] – Ibid. Para. 5.

[48] ألاطون: القوانين، ترجمه من اليونانية إلي الإنجليزية: إدوارد تايلور، تعريب: محمد حسن ظاظا، الهيئة المصرية العامة للكتاب، القاهرة، 1986، ك10، ص ص.483: 487.

[49] – المرجع نفسه، ك11، ص ص.492: 498.

[50] – أرسطو: السياسة، أرسطو: السياسة، ترجمه إلى الفرنسية: بارتلمى سانتهلير، ترجمه إلى العربية: أحمد لطفى السيد، الهيئة العامة للكتاب، القاهرة، 1979.ك2، ب3،4، ص ص.141: 147.

 

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