In my last column I explored some of the new arguments in favor of the absolute sovereignty of kings advanced during the disputes between King Phillip of France and Pope Boniface VIII. In this article, I will explore a perhaps the most powerful of these pro-regnalist arguments, De potestate regia et papali, written and revised several times by John of Paris (Jean Quidort) between mid-1302 and early 1303. In this work, the author makes the most powerful and extreme case that the temporal powers of a king are distinct from, and superior to, those of a pope. The work also does much to further the development of corporation theory, about which I have written in earlier columns.
Arguably the most important pro-royal tract produced during the second round of conflict between Philip and Boniface was John of Paris’ De potestate regia et papali. John, a highly regarded member of the faculty at the University of Paris, was a supporter of the French crown – a fact attested to by his decision to join his fellow Dominicans in signing the June 1303 petition calling for the pope to be tried before a general council of the Church. Despite his pro-regnal proclivities, however, he did not write De potestate regia et papali as a polemical tract dealing specifically with the conflict between Philip and Boniface. Rather, he wrote it as a scholastic work meant to examine the generic or philosophical relationship between the regnum and the sacerdotium.
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As a result, the tract has the structure and tone of a calm, relatively dispassionate and scholarly treatment of the issues in question. It relentlessly marshals scriptural, canonistic, patristic, Aristotelian-Thomistic and contemporary polemical sources to challenge the hierocratic thesis. Although formally structured as a blow-by-blow refutation of the main philosophical arguments of hierocrats like Giles of Rome and James of Viterbo, John’s treatise also made a positive case for the supremacy of kings.
In some ways, De potestate regia et papali mounted a fairly typical defense of the dualist thesis; its arguments were similar in kind to the anti-hierocratic arguments developed over the preceding century or so, differing from them mainly in that, as with Quaestio in utramque partem and Rex pacificus, it focused on the question of papal power over the regnum rather than the imperium. The treatise began in a fairly conventional manner, defining both the temporal power (kingship) and the spiritual power (priesthood). With respect to kingship, John developed an essentially Aristotelian argument that political society is natural in the sense that man is, by nature, a social and political animal. Humans need to live in communities, he continued, because they cannot supply themselves with all the necessities of life (food, clothing, protection) required for the “good life” and because they have the capacity for speech, the natural purpose of which is to communicate with others. Ideally, he continued, men would live in “perfect communities” – that is, communities of sufficient scale to provide all of life’s necessities and thereby establish the conditions within which its citizens could pursue lives of virtue.
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Head of a King, from 13th century France – image courtesy The Metropolitan Museum of Art
John then drew the essentially Thomistic conclusion that, as they lacked sufficient scale to provide these necessities, neither the household nor the village could be considered a “perfect community”. Nor, however, could a universal empire, which by its very nature was of a scale that rendered it ungovernable. Only the kingdom, he concluded, had the scale necessary to provide the food, clothing and protection “for a man’s whole life”; and only the kingdom, therefore, could be considered a perfect community. Having established the kingdom as the perfect community, John then argued that such communities required governance to assure that they were properly ordered toward the common good. Departing from Aristotle, who ultimately preferred a mixed constitution, John insisted that the best form of governance for the perfect community of the kingdom was “kingship” – that is, “rule over a community perfectly ordered by one person to the common good”.
Shifting his attention to the priesthood, John then argued that humans are not solely ordered toward the kind of good that can be acquired through nature – the Aristotelian “good life” – but also have a supernatural end, eternal life. This supernatural end, however, cannot be realized solely through human virtue; it requires grace or divine virtue. When Christ walked the earth, He was the source and dispenser of this grace and thus the supreme authority with respect to supernatural ends. In preparation for his eventual Ascension, however, Christ instituted ministers or priests who would act in his stead, dispensing the grace necessary for eternal life through the sacraments. The sole function of ministers or priests, John therefore concluded, was to exercise “the spiritual power given by Christ… for dispensing the sacraments to the faithful.” Priesthood was thus understood by John to be an entirely spiritual institution, different in kind from kingship.
“Superiority and completeness of power”
Having established that the two powers were separate domains, John then proceeded to examine the nature of hierarchy within each. The spiritual sphere, he argued, is subject to divine law and is thus organized according to the logic of the celestial hierarchy. It is therefore necessarily a graded order comprising – in ascending order of “superiority and completeness of power” – priests, bishops, the pope, and God. In this hierarchy, authority flows in descending fashion from God to the pope, from the pope to the bishops, and from the bishops to the priests. John was at pains to emphasize that the Church is thus an ordered unity – a single, universal institution governed by a single supreme authority, the pope, and ordered toward the end of promoting eternal salvation.
In the temporal realm, however, John came to a radically different conclusion. Here, he argued, the governing law was not divine, but natural. The logic of the celestial hierarchy did not apply; neither, therefore, did Pseudo-Dionysian principle of unity. Men are naturally inclined not only to form political societies, John wrote, but to choose different types of ruler and different systems of rule in accordance with their particular needs and circumstances. There is nothing in natural law that compels all men to live under a single supreme temporal power. Indeed, he quoted Aristotle to the effect that the existence of multiple and diverse political societies was natural and, therefore, desirable while a universal empire governed by one man was not.
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Having compared the differing natures of hierarchy in the regnum and sacerdotium, John next compared them in terms of priority in time, dignity and causality (power). With respect to time, he argued that, if priesthood were understood to include the anticipatory or figurative priests of the Old Testament, then kingship and priesthood emerged simultaneously. If, however, one accepted that there were no true priests before Christ, then kingship was prior in time to priesthood by at least two millennia. He draws no explicitly political conclusions from this, but the argument clearly strikes a blow at hierocratic claims that priests are prior in time.
Turning next to the question of dignity, John conceded that priesthood, because it pertained to man’s supernatural ends, was in fact prior to kingship. He quickly moved on, however, to deny that this priority in dignity implied that the temporal power derived in any way from the spiritual or that the latter enjoyed superior jurisdiction. Both powers, he insisted, derived their authority directly from a single superior power, God, and neither was therefore generally or absolutely subordinate to the other. The superior divine power granted each power supreme authority in its respective domain. In this way, John maintained the important Pseudo-Dionysian principle of unity, but displaced the locus of that unity from the pope upward to God. In the process, he drained the principle of its political force by establishing that the temporal and spiritual domains enjoyed hierarchical equality rather than a relationship of sub- and super-ordination.
John’s final task was essentially to tease out the implications of the hierarchical equality of the two powers (regnal and ecclesiastical). His method of argument was to examine, first, papal dominion over property and, second, papal jurisdiction over people. With respect to dominion, which he defined as possession or property rights, John first argued that the pope had no dominion over the material goods of the Church. This is so, he reasoned, because ecclesiastical goods had originally been donated to the Church as a corporate whole, rather than to any individual cleric, and were therefore owned by the Church as a corporate whole, not by any individual cleric. Clergymen merely exercise stewardship over these goods, using them to advance the spiritual goals of the Church. The pope, therefore, does not exercise lordship over ecclesiastical goods. He is merely the “administrator”, “manager” or “steward” of those goods.
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John further argued that the pope exercises neither dominion nor stewardship over the goods of the laity. Lay property, he reasoned, was not originally donated to the community as a whole as was Church property. Rather, individual laymen acquired their property through their own art, labor and industry. Having acquired property in this way, laymen were thus vested with the natural right to use, administer, hold or alienate it as they saw fit – neither prince nor pope had any claim to lay property, except perhaps in cases of dire emergency. John drove the point home by pointing out that, as Christ Himself had not claimed dominion over the material goods of the laity, He could hardly transfer it to His successors.
Drawing a clear distinction with dominion, John defined jurisdiction as the legitimate authority to govern and rule. He then argued that there was no scriptural warrant for the hierocratic claim that Christ had vested in the papacy with such authority in both the spiritual and temporal domains. Rather, he argued, Christ instituted two discrete powers, and vested each of those powers with only those elements of His supreme authority to rule relevant to their respective ends or purposes. Kings were thus vested with the authority to rule their kingdoms; popes with the authority to rule the Church. John qualified this somewhat by arguing that each of the two authorities possessed “conditional and accidental” power over the other. The Church had the power to punish and coerce incorrigibly sinful princes; the temporal power, the authority to depose incorrigibly errant popes. But he carefully limited these indirect or incidental powers and, in the papal case, explicitly conditioned the pope’s right to act against a wayward prince on the approval of the prince’s temporal subordinates. In classical dualist fashion, John was careful to preserve the distinctiveness and hierarchical equality of the two ruling authorities.
Finally, John addressed the key question of whether the Donation of Constantine had conferred papal jurisdiction over the kingdom of France. His conclusion was that it did not. First, John argued, the Donation affected only a limited portion of the Empire, Italy. France was not included in the grant. Second, the Donation was invalid. Here John cited Accursius’ Gloss on the Civil Law to the effect that the emperor was not authorized to diminish and despoil the Empire by alienating its western half.
Third, even granting the validity of the Donation, it was never within the competence of a Roman emperor to donate the Frankish lands to anyone since they were not his to donate. John supported this claim by arguing that while the earlier inhabitants of France, the Gauls, may have been subject to the Romans, the later inhabitants, the Franks, never were. Never having been subjugated by Rome, France could not therefore be alienated by it.
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Fourth, even if the Donation were valid, and further conceding that the original donation had lawfully included France, the pope would still have no temporal dominion or jurisdiction over the French king because the Donation would have been abolished by customary right. France had ruled itself as an independent kingdom for over a century, John argued, and customary law dictated that after such a lengthy period of self-rule dominion and jurisdiction must be considered transferred from the pope to the king of France. He concluded his argument by citing scripture and scriptural commentary to the effect that, as the Roman Empire had been founded on force, its jurisdiction could be similarly thrown off by force.
The Significance of John’s Work
In writing De potestate regia et papali, John had provided Philip and his supporters with a powerful dualist rejoinder to the increasingly strident hierocratic claims of Giles of Rome, James of Viterbo and Henry of Cremona. In the course of mounting this defense of the dualist thesis, however, he made a number of assumptions, assertions and arguments that were ultimately more regnalist than dualist in nature. This was perhaps most evident in connection with his treatment of the locus of supreme authority to command, legislate and judge. In this connection, John’s most significant innovation was to naturalize the regnum as the locus of supreme authority. Like James of Viterbo, John grounded his entire argument on the Aristotelian premise that both society and government were natural.
But whereas James had insisted that the temporal power must be sanctified by the spiritual if it were to be truly just and perfect, John insisted that “the Regnum, as the highest form of natural society, can be fully perfect in a strictly natural sense without the necessity of sanctification by the Church.” If the regnum was the highest form of natural society, however, it was always only potentially so. In order to ensure that it remained ordered toward the common good, understood in terms of the Aristotelian-Thomistic idea of the good life, each regnum required a governor – that is, a single person, a king, charged with steering the kingdom in the right direction. And, if these kings were to carry out their essential function, they required certain powers. These powers were those of temporal jurisdiction – the powers to command, legislate, and judge in temporal affairs. John concluded that the source all these powers was God and that kings, therefore, were subject to no higher power save God Himself.
John also recognized that, in locating supreme authority in the hands of the various kings of Latin Christendom, he was painting a picture of what in later times would be called the “international system” of his day. In his view, the world was naturally divided into separate kingdoms, like France and England, all of which claimed supreme authority within their borders. Even the Empire, despite its universalistic aspirations and pretensions, was to John just another kingdom among the many that populated the respublica Christiana. Having swept aside ideas of celestial hierarchy, hierocratic claims that kings held the material sword from the pope (as God’s vicar on earth), and imperialist pretensions to universal jurisdiction, John was able to sketch a (still incomplete) picture of “international system” comprising sovereign kingdoms interacting in the absence of any superior temporal or spiritual authority (i.e. anarchy).
But what, specifically, was the character of this supreme authority to rule or govern. For John, the answer to that question was to be found in the concept of “jurisdiction”. John began his examination of jurisdiction by first differentiating it from dominion, with which it had often been confused or conflated. Jurisdiction, he argued, was the power to govern or rule through the law, while dominion referred to possession or property rights. Having thus disentangled these two phenomena, John then set about specifying jurisdiction’s various entailments. Jurisdiction qua jurisdiction, he argued, was always the same phenomenon: whether wielded by the temporal or spiritual power, it always referred to the power to govern or rule in the interests of the common good. To the extent that the jurisdiction of kings differed from that of popes, it did so not in terms of the nature of the power itself, but rather the object of that power.
Popes had supreme jurisdiction over the institutional Church – that is, they had the power to command the clergy and to determine what was just and unjust in disputes among the clergy. They also exercised stewardship over the Church’s corporately owned property. Popes did not, however, exercise either dominion or jurisdiction over the goods of the laity. Nor did they exercise any jurisdiction in the temporal affairs of the regnum. Nor, finally, did they possess any coercive power to enforce their will beyond the institutional Church. Kingdoms were simply not the proper object of papal jurisdiction. On the other hand, John argued, kings did possess supreme jurisdiction over the kingdom. They could command their subjects, and make and enforce laws. And, unlike the popes, kings had the power to punish and coerce wrongdoers – indeed, although he doesn’t say it explicitly, John clearly implied that kings enjoyed an ultimate monopoly of coercive power within their kingdoms.
Significantly, John saw this supreme temporal jurisdiction not only as natural, but as a positive good. Within the previously regnant Augustinian tradition, governance and kingship had been understood as an unfortunate, if necessary, byproduct of original sin. As Augustine himself had argued, pre-lapsarian humans were by nature social animals, but not political ones; before the Fall, people socialized naturally and had no need for coercive institutions that impinged on human liberty. After humanity’s Fall, however, coercive power and authority became necessary as both a punishment and remedy for sin. Kingship, therefore, was a necessary evil.
Within the Aristotelian tradition John drew on, however, human beings were understood to be “political animals” whose very nature – even before the Fall – required them to live within a political community (polis). For thinkers like John, the political community was necessary and good because only within such a community was the cultivation of virtue (toward which humanity was naturally inclined) fully possible. Similarly, governance and authority was also good, for without it the community could not be steered toward its appointed end. On this view, supreme political authority – provided it was exercised in the common good, and not for private benefit – was seen as a positive good rather than a necessary evil.
Although John argued that the king held supreme temporal jurisdiction, he did not claim that the jurisdiction was absolute. John understood supreme authority to be limited primarily by the principle of what has subsequently been called “popular consent”. His argument in this connection was that each kingdom was in effect a “corporation” (universitas) and that the head of the corporation, the king, derived his powers from the body of the corporation. Originally developed in classical times to refer to “associations of persons in both public and private law,” by the twelfth century the concept had been taken up by jurists to define the structure of small groups within the Church (a cathedral chapter, for example) as well as the universal Church itself. By the end of the thirteenth century, jurists had begun to apply the logic of corporation theory to kingdoms as well. In both cases, they defined the corporation as a community
(a) possessing a distinctive legal personality,
(b) shaped by its own unique customs, purpose and composition, and
(c) simultaneously “composed of a plurality of human beings and an abstract unitary entity perceptible only to the intellect.”
The jurists also fashioned a doctrine of the proper relationship between the corporation, its members and its “head”. Basically, the head of the corporation was the embodiment of the legal person of the corporation and enjoyed considerable authority to act autonomously on its behalf. Significantly, however, corporation theory also placed strict limits on this authority. Above all, the head of the corporation was required to honor the customs and constitution of the corporation, to seek the counsel and consent of its members, and to act in its best interests. Breach of this contract between the head of a corporation and its members constituted grounds for the removal of the head. Supreme jurisdiction then, John implied, was not without “halter and bridle” as Giles of Rome had claimed in connection with the pope. The nature of the royal office, divine law, the ius gentium, customary law, and even the “constitution” of the realm all imposed constraints on kings – constraints that were ultimately enforceable by “the people electing” (the barons and peers) taking steps to depose the king, either on their own initiative or at the instigation of the pope.
By Andrew Latham
In my last column I explored some of the new arguments in favor of the absolute sovereignty of kings advanced during the disputes between King Phillip of France and Pope Boniface VIII. In this article, I will explore a perhaps the most powerful of these pro-regnalist arguments, De potestate regia et papali, written and revised several times by John of Paris (Jean Quidort) between mid-1302 and early 1303. In this work, the author makes the most powerful and extreme case that the temporal powers of a king are distinct from, and superior to, those of a pope. The work also does much to further the development of corporation theory, about which I have written in earlier columns.
Arguably the most important pro-royal tract produced during the second round of conflict between Philip and Boniface was John of Paris’ De potestate regia et papali. John, a highly regarded member of the faculty at the University of Paris, was a supporter of the French crown – a fact attested to by his decision to join his fellow Dominicans in signing the June 1303 petition calling for the pope to be tried before a general council of the Church. Despite his pro-regnal proclivities, however, he did not write De potestate regia et papali as a polemical tract dealing specifically with the conflict between Philip and Boniface. Rather, he wrote it as a scholastic work meant to examine the generic or philosophical relationship between the regnum and the sacerdotium.
As a result, the tract has the structure and tone of a calm, relatively dispassionate and scholarly treatment of the issues in question. It relentlessly marshals scriptural, canonistic, patristic, Aristotelian-Thomistic and contemporary polemical sources to challenge the hierocratic thesis. Although formally structured as a blow-by-blow refutation of the main philosophical arguments of hierocrats like Giles of Rome and James of Viterbo, John’s treatise also made a positive case for the supremacy of kings.
In some ways, De potestate regia et papali mounted a fairly typical defense of the dualist thesis; its arguments were similar in kind to the anti-hierocratic arguments developed over the preceding century or so, differing from them mainly in that, as with Quaestio in utramque partem and Rex pacificus, it focused on the question of papal power over the regnum rather than the imperium. The treatise began in a fairly conventional manner, defining both the temporal power (kingship) and the spiritual power (priesthood). With respect to kingship, John developed an essentially Aristotelian argument that political society is natural in the sense that man is, by nature, a social and political animal. Humans need to live in communities, he continued, because they cannot supply themselves with all the necessities of life (food, clothing, protection) required for the “good life” and because they have the capacity for speech, the natural purpose of which is to communicate with others. Ideally, he continued, men would live in “perfect communities” – that is, communities of sufficient scale to provide all of life’s necessities and thereby establish the conditions within which its citizens could pursue lives of virtue.
John then drew the essentially Thomistic conclusion that, as they lacked sufficient scale to provide these necessities, neither the household nor the village could be considered a “perfect community”. Nor, however, could a universal empire, which by its very nature was of a scale that rendered it ungovernable. Only the kingdom, he concluded, had the scale necessary to provide the food, clothing and protection “for a man’s whole life”; and only the kingdom, therefore, could be considered a perfect community. Having established the kingdom as the perfect community, John then argued that such communities required governance to assure that they were properly ordered toward the common good. Departing from Aristotle, who ultimately preferred a mixed constitution, John insisted that the best form of governance for the perfect community of the kingdom was “kingship” – that is, “rule over a community perfectly ordered by one person to the common good”.
Shifting his attention to the priesthood, John then argued that humans are not solely ordered toward the kind of good that can be acquired through nature – the Aristotelian “good life” – but also have a supernatural end, eternal life. This supernatural end, however, cannot be realized solely through human virtue; it requires grace or divine virtue. When Christ walked the earth, He was the source and dispenser of this grace and thus the supreme authority with respect to supernatural ends. In preparation for his eventual Ascension, however, Christ instituted ministers or priests who would act in his stead, dispensing the grace necessary for eternal life through the sacraments. The sole function of ministers or priests, John therefore concluded, was to exercise “the spiritual power given by Christ… for dispensing the sacraments to the faithful.” Priesthood was thus understood by John to be an entirely spiritual institution, different in kind from kingship.
“Superiority and completeness of power”
Having established that the two powers were separate domains, John then proceeded to examine the nature of hierarchy within each. The spiritual sphere, he argued, is subject to divine law and is thus organized according to the logic of the celestial hierarchy. It is therefore necessarily a graded order comprising – in ascending order of “superiority and completeness of power” – priests, bishops, the pope, and God. In this hierarchy, authority flows in descending fashion from God to the pope, from the pope to the bishops, and from the bishops to the priests. John was at pains to emphasize that the Church is thus an ordered unity – a single, universal institution governed by a single supreme authority, the pope, and ordered toward the end of promoting eternal salvation.
In the temporal realm, however, John came to a radically different conclusion. Here, he argued, the governing law was not divine, but natural. The logic of the celestial hierarchy did not apply; neither, therefore, did Pseudo-Dionysian principle of unity. Men are naturally inclined not only to form political societies, John wrote, but to choose different types of ruler and different systems of rule in accordance with their particular needs and circumstances. There is nothing in natural law that compels all men to live under a single supreme temporal power. Indeed, he quoted Aristotle to the effect that the existence of multiple and diverse political societies was natural and, therefore, desirable while a universal empire governed by one man was not.
Having compared the differing natures of hierarchy in the regnum and sacerdotium, John next compared them in terms of priority in time, dignity and causality (power). With respect to time, he argued that, if priesthood were understood to include the anticipatory or figurative priests of the Old Testament, then kingship and priesthood emerged simultaneously. If, however, one accepted that there were no true priests before Christ, then kingship was prior in time to priesthood by at least two millennia. He draws no explicitly political conclusions from this, but the argument clearly strikes a blow at hierocratic claims that priests are prior in time.
Turning next to the question of dignity, John conceded that priesthood, because it pertained to man’s supernatural ends, was in fact prior to kingship. He quickly moved on, however, to deny that this priority in dignity implied that the temporal power derived in any way from the spiritual or that the latter enjoyed superior jurisdiction. Both powers, he insisted, derived their authority directly from a single superior power, God, and neither was therefore generally or absolutely subordinate to the other. The superior divine power granted each power supreme authority in its respective domain. In this way, John maintained the important Pseudo-Dionysian principle of unity, but displaced the locus of that unity from the pope upward to God. In the process, he drained the principle of its political force by establishing that the temporal and spiritual domains enjoyed hierarchical equality rather than a relationship of sub- and super-ordination.
John’s final task was essentially to tease out the implications of the hierarchical equality of the two powers (regnal and ecclesiastical). His method of argument was to examine, first, papal dominion over property and, second, papal jurisdiction over people. With respect to dominion, which he defined as possession or property rights, John first argued that the pope had no dominion over the material goods of the Church. This is so, he reasoned, because ecclesiastical goods had originally been donated to the Church as a corporate whole, rather than to any individual cleric, and were therefore owned by the Church as a corporate whole, not by any individual cleric. Clergymen merely exercise stewardship over these goods, using them to advance the spiritual goals of the Church. The pope, therefore, does not exercise lordship over ecclesiastical goods. He is merely the “administrator”, “manager” or “steward” of those goods.
John further argued that the pope exercises neither dominion nor stewardship over the goods of the laity. Lay property, he reasoned, was not originally donated to the community as a whole as was Church property. Rather, individual laymen acquired their property through their own art, labor and industry. Having acquired property in this way, laymen were thus vested with the natural right to use, administer, hold or alienate it as they saw fit – neither prince nor pope had any claim to lay property, except perhaps in cases of dire emergency. John drove the point home by pointing out that, as Christ Himself had not claimed dominion over the material goods of the laity, He could hardly transfer it to His successors.
Drawing a clear distinction with dominion, John defined jurisdiction as the legitimate authority to govern and rule. He then argued that there was no scriptural warrant for the hierocratic claim that Christ had vested in the papacy with such authority in both the spiritual and temporal domains. Rather, he argued, Christ instituted two discrete powers, and vested each of those powers with only those elements of His supreme authority to rule relevant to their respective ends or purposes. Kings were thus vested with the authority to rule their kingdoms; popes with the authority to rule the Church. John qualified this somewhat by arguing that each of the two authorities possessed “conditional and accidental” power over the other. The Church had the power to punish and coerce incorrigibly sinful princes; the temporal power, the authority to depose incorrigibly errant popes. But he carefully limited these indirect or incidental powers and, in the papal case, explicitly conditioned the pope’s right to act against a wayward prince on the approval of the prince’s temporal subordinates. In classical dualist fashion, John was careful to preserve the distinctiveness and hierarchical equality of the two ruling authorities.
Finally, John addressed the key question of whether the Donation of Constantine had conferred papal jurisdiction over the kingdom of France. His conclusion was that it did not. First, John argued, the Donation affected only a limited portion of the Empire, Italy. France was not included in the grant. Second, the Donation was invalid. Here John cited Accursius’ Gloss on the Civil Law to the effect that the emperor was not authorized to diminish and despoil the Empire by alienating its western half.
Third, even granting the validity of the Donation, it was never within the competence of a Roman emperor to donate the Frankish lands to anyone since they were not his to donate. John supported this claim by arguing that while the earlier inhabitants of France, the Gauls, may have been subject to the Romans, the later inhabitants, the Franks, never were. Never having been subjugated by Rome, France could not therefore be alienated by it.
Fourth, even if the Donation were valid, and further conceding that the original donation had lawfully included France, the pope would still have no temporal dominion or jurisdiction over the French king because the Donation would have been abolished by customary right. France had ruled itself as an independent kingdom for over a century, John argued, and customary law dictated that after such a lengthy period of self-rule dominion and jurisdiction must be considered transferred from the pope to the king of France. He concluded his argument by citing scripture and scriptural commentary to the effect that, as the Roman Empire had been founded on force, its jurisdiction could be similarly thrown off by force.
The Significance of John’s Work
In writing De potestate regia et papali, John had provided Philip and his supporters with a powerful dualist rejoinder to the increasingly strident hierocratic claims of Giles of Rome, James of Viterbo and Henry of Cremona. In the course of mounting this defense of the dualist thesis, however, he made a number of assumptions, assertions and arguments that were ultimately more regnalist than dualist in nature. This was perhaps most evident in connection with his treatment of the locus of supreme authority to command, legislate and judge. In this connection, John’s most significant innovation was to naturalize the regnum as the locus of supreme authority. Like James of Viterbo, John grounded his entire argument on the Aristotelian premise that both society and government were natural.
But whereas James had insisted that the temporal power must be sanctified by the spiritual if it were to be truly just and perfect, John insisted that “the Regnum, as the highest form of natural society, can be fully perfect in a strictly natural sense without the necessity of sanctification by the Church.” If the regnum was the highest form of natural society, however, it was always only potentially so. In order to ensure that it remained ordered toward the common good, understood in terms of the Aristotelian-Thomistic idea of the good life, each regnum required a governor – that is, a single person, a king, charged with steering the kingdom in the right direction. And, if these kings were to carry out their essential function, they required certain powers. These powers were those of temporal jurisdiction – the powers to command, legislate, and judge in temporal affairs. John concluded that the source all these powers was God and that kings, therefore, were subject to no higher power save God Himself.
John also recognized that, in locating supreme authority in the hands of the various kings of Latin Christendom, he was painting a picture of what in later times would be called the “international system” of his day. In his view, the world was naturally divided into separate kingdoms, like France and England, all of which claimed supreme authority within their borders. Even the Empire, despite its universalistic aspirations and pretensions, was to John just another kingdom among the many that populated the respublica Christiana. Having swept aside ideas of celestial hierarchy, hierocratic claims that kings held the material sword from the pope (as God’s vicar on earth), and imperialist pretensions to universal jurisdiction, John was able to sketch a (still incomplete) picture of “international system” comprising sovereign kingdoms interacting in the absence of any superior temporal or spiritual authority (i.e. anarchy).
But what, specifically, was the character of this supreme authority to rule or govern. For John, the answer to that question was to be found in the concept of “jurisdiction”. John began his examination of jurisdiction by first differentiating it from dominion, with which it had often been confused or conflated. Jurisdiction, he argued, was the power to govern or rule through the law, while dominion referred to possession or property rights. Having thus disentangled these two phenomena, John then set about specifying jurisdiction’s various entailments. Jurisdiction qua jurisdiction, he argued, was always the same phenomenon: whether wielded by the temporal or spiritual power, it always referred to the power to govern or rule in the interests of the common good. To the extent that the jurisdiction of kings differed from that of popes, it did so not in terms of the nature of the power itself, but rather the object of that power.
Popes had supreme jurisdiction over the institutional Church – that is, they had the power to command the clergy and to determine what was just and unjust in disputes among the clergy. They also exercised stewardship over the Church’s corporately owned property. Popes did not, however, exercise either dominion or jurisdiction over the goods of the laity. Nor did they exercise any jurisdiction in the temporal affairs of the regnum. Nor, finally, did they possess any coercive power to enforce their will beyond the institutional Church. Kingdoms were simply not the proper object of papal jurisdiction. On the other hand, John argued, kings did possess supreme jurisdiction over the kingdom. They could command their subjects, and make and enforce laws. And, unlike the popes, kings had the power to punish and coerce wrongdoers – indeed, although he doesn’t say it explicitly, John clearly implied that kings enjoyed an ultimate monopoly of coercive power within their kingdoms.
Significantly, John saw this supreme temporal jurisdiction not only as natural, but as a positive good. Within the previously regnant Augustinian tradition, governance and kingship had been understood as an unfortunate, if necessary, byproduct of original sin. As Augustine himself had argued, pre-lapsarian humans were by nature social animals, but not political ones; before the Fall, people socialized naturally and had no need for coercive institutions that impinged on human liberty. After humanity’s Fall, however, coercive power and authority became necessary as both a punishment and remedy for sin. Kingship, therefore, was a necessary evil.
Within the Aristotelian tradition John drew on, however, human beings were understood to be “political animals” whose very nature – even before the Fall – required them to live within a political community (polis). For thinkers like John, the political community was necessary and good because only within such a community was the cultivation of virtue (toward which humanity was naturally inclined) fully possible. Similarly, governance and authority was also good, for without it the community could not be steered toward its appointed end. On this view, supreme political authority – provided it was exercised in the common good, and not for private benefit – was seen as a positive good rather than a necessary evil.
Although John argued that the king held supreme temporal jurisdiction, he did not claim that the jurisdiction was absolute. John understood supreme authority to be limited primarily by the principle of what has subsequently been called “popular consent”. His argument in this connection was that each kingdom was in effect a “corporation” (universitas) and that the head of the corporation, the king, derived his powers from the body of the corporation. Originally developed in classical times to refer to “associations of persons in both public and private law,” by the twelfth century the concept had been taken up by jurists to define the structure of small groups within the Church (a cathedral chapter, for example) as well as the universal Church itself. By the end of the thirteenth century, jurists had begun to apply the logic of corporation theory to kingdoms as well. In both cases, they defined the corporation as a community
(a) possessing a distinctive legal personality,
(b) shaped by its own unique customs, purpose and composition, and
(c) simultaneously “composed of a plurality of human beings and an abstract unitary entity perceptible only to the intellect.”
The jurists also fashioned a doctrine of the proper relationship between the corporation, its members and its “head”. Basically, the head of the corporation was the embodiment of the legal person of the corporation and enjoyed considerable authority to act autonomously on its behalf. Significantly, however, corporation theory also placed strict limits on this authority. Above all, the head of the corporation was required to honor the customs and constitution of the corporation, to seek the counsel and consent of its members, and to act in its best interests. Breach of this contract between the head of a corporation and its members constituted grounds for the removal of the head. Supreme jurisdiction then, John implied, was not without “halter and bridle” as Giles of Rome had claimed in connection with the pope. The nature of the royal office, divine law, the ius gentium, customary law, and even the “constitution” of the realm all imposed constraints on kings – constraints that were ultimately enforceable by “the people electing” (the barons and peers) taking steps to depose the king, either on their own initiative or at the instigation of the pope.
Andrew Latham is a professor of political science at Macalester College in Saint Paul, Minnesota. He is the author, most recently, of The Idea of Sovereignty At the Turn of the 14th Century. You can visit Andrew’s website at www.aalatham.com or follow Andrew on Twitter @aalatham
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