Chap 2 - Medieval Natural Law.pdf

Chapter 2. Medieval Natural Law 1. Introduction a) The general context In 476, after the overthrow of the Western Roman Empire by the Germanic peoples, Europe witnessed great population movements for five centuries, following invasions by Germans, Slavs, Arabs, Vikings and Hungarians. For a thousand years after the fall of the Western Roman Empire, the intellectual world was essentially dominated by the Christian Church, which helped natural law to survive the Middle Ages, but above all ensured that the Bible became the main legal text. The importance of this phenomenon should not be underestimated. After having been placed at the service of Roman political imperialism, Christian monotheism became the ultimate spiritual and legal reference. The primary provider of certainty is no longer, as it was for the Greeks, nature, immutable, immanent, objective and determined, but God, a subjective entity, endowed with intention and transcendent, who has granted freedom to men while imposing his divine commandments on them. It is no coincidence that the authors who will mainly hold our attention during this period are Christian thinkers: Augustine (4th century), Thomas Aquinas (13th century), William of Occam (14th century) and the Spanish scholastics (16th century). According to Marcel Gauchet, the passage of the year 1000 constitutes a decisive break that will determine the continuation of Western history. At that time, what had been in the making since the monotheistic invention, particularly the Christian one, was realised, namely the division of the orders of reality between the visible and invisible worlds, which would allow men to inscribe their action in this world in a different way. For the first time in history, according to him, our world becomes a horizon in itself, marking the beginning of man's autonomy from the heavens and the birth of the notion of material growth. As one might expect, such a development implies political-religious and philosophical-legal changes. On the politico-religious level, there was a permanent tension between the temporal and spiritual powers, illustrated by the famous Investiture Controversy, which essentially aimed to determine whether the Emperor or the Pope was in charge of the investiture of bishops. At the end of the 11th century, the monk Manegold of Lautenbach (1030-1103) took a position on the conflict between Pope Gregory VII and the German Emperor Henry IV, considering that the latter owed his power only to the pact concluded with his subjects and that in the event of a breach of this pact, the latter were relieved of their duty of allegiance. In 1324, the physician and philosopher Marsilio of Padua, in his Defensor Pacis, defended the idea of completely different spheres of temporal government and spiritual authority, and even the subordination of the Church to the State in temporal matters, for which he was forced to flee to Paris and condemned as a heretic by two popes. If the empowerment of the earthly world justified the Church's mediating position, it also limited its political claims and prepared the way for the kingdoms to come to the fore, entities more territorially limited than empires but aspiring to complete power within 38 this limited sphere. Kings ceased to be the direct agents of spiritual government and the Papacy admitted the autonomous jurisdiction of temporal powers, heralding the demise of the feudal system and the creation, a few centuries later, of modern states. Finally, the 10th and 11th centuries mark the rediscovery, thanks to the Arab occupation of the Iberian Peninsula, of a large part of the Greek heritage. The work of Aristotle especially will fascinate authors such as Thomas Aquinas after having made a clockwise loop around the Mediterranean from the 6th century 21. Both the stronger and better organised governments and the more disciplined and autonomous Church developed a close relationship with the birth of the European university and encouraged the renewal of Roman law teaching. At the beginning of the 12th century, a Bologna professor by the name of Irnerius taught, instead of Germanic laws, the Digest of Justinian, which seemed to have disappeared since the 7th century, and which forms the Corpus Iuris Civilis with the Institutes, inspired by the work of Gaius, the Codex and the Novellae. While Augustine's medieval Christian law may have been sufficient for rural communities and small feudal groups, it was too vague to regulate the economic revival, and could not compete with the structure, logic and, above all, the method of Roman law codified by Justinian. Furthermore, secular rulers were inspired by the division within the papacy into different sections dealing with legislation, jurisdictional decisions and administration. From then on, legal innovation became the core of sovereign authority and no longer had to be disguised as a rediscovery of neglected custom. The legal fragmentation of the Middle Ages, which had succeeded the Roman centralisation and was functioning in a very limited way, was replaced by the unifying forces of Roman law, and of canon law, whose impact remained limited ratione personae et materiae. In the shadow of normative authority, individuals, initially disarmed, would nevertheless acquire a status which, several centuries later, would make them the source of political power thanks to the theories of the social contract. b) Natural law through the Middle Ages We have seen that the conception of Greek philosophers such as Aristotle was fundamentally inegalitarian. The Christian message, under the influence of Paul of Tarsus in particular, replaced the postulate of natural inequality with that of moral equality, associated with the idea of individual freedom, by combining Stoic speculations22 about a universal human nature with Judaism's concern for conformity to a divine will. This will, however, is no longer purely external but is internalised, with Paul linking divine will and human action and suggesting that the two can be merged in every human. These elements taken together will contribute to a shift of focus from the social group (the city) to the individual. Indeed, in the long run, and in a nutshell, a completely new conception of the world will gradually replace the ancient conception: in addition to the passage from natural inequality to moral equality and the emergence of the notion of will 21 After the closure of the Lyceum of Aristotle, the Greek scholars left for Syria, then Persia, taking with them the works of the Stagirite, which were recovered by the Muslim world, which translated them into Arabic and commented on them extensively. 22 Tarsus was an important centre of Stoicism and Chrysippus (mentioned above) may have been born there. 39 alongside that of reason (logos)23 , the mainly collective dimension (the city, the common good) will gradually give way to the individual dimension (the notion of natural right progressively acquiring a subjective meaning in English) - A first Christian version of natural law? “(…) when the Gentiles, who have not the law, do by nature those things that are of the law, these having not the law, are a law to themselves; who shew the work of the law written in their hearts, their conscience bearing witness to them” (Paul of Tarsus, Letter to the Romans, 2:14-15). In this text we see two important aspects for natural law: the connection of the law to nature ('by nature') and the immediate access to this law by the human conscience ('written in their hearts'). While there is some controversy as to whether Paul is referring to natural law, it is clear that this text was seen as such by early Christian thinkers and the founding fathers of the Church, including St Augustine and St Isidore of Seville. We shall return to Saint Augustine in more detail later on. As for Isidore of Seville (570- 636), he played an important role in the transmission between the Roman jurists of the 2d century AD and the medieval authors, whether canonists or civilists. In his Book of Etymologies, he takes up Ulpian's tripartite distinction between jus naturale, jus gentium and jus civile. However, he alters its meaning by defining natural law as referring to what 'is common to all nations: what everywhere results from a natural inspiration and not from any institution'24. According to him, this applies to the union of man and woman, the education of children, the common possession of all things, the obligation to return entrusted property or the "right to repel violence by force". If it is clear that Isidore rejected Ulpian's conception insofar as it was also aimed at animals, he nevertheless preserves the reference to a "natural inspiration" which does not necessarily seem to go hand in hand with, for example, the obligation to return a good to his/her owner. As for the ius gentium, it is more akin to a positive law common to (almost) all nations and seems to be mainly concerned with the law of war (already foreshadowing its evolution into public international law). Isidore also distinguished between laws, according to whether they were divine (fas, by nature) or human (jus, by mores). The interaction between this latter distinction and the tripartite one is not very clear. In any case, there is no doubt that Isidore's distinctions were to inspire Gratian, who himself would significantly influence the theologians who followed him. Little is known about Gratian, except that he was probably a monk. Around 1140 he published a book entitled Concordentia discordantium canonum, which became known as the Decree of 23 The transition from Greek rationalism to Christian voluntarism was confirmed in the 14th century with the nominalist movement. We will come back to this. 24 For Ulpian, natural law is what is common to humans and animals, whereas ius gentium refers to the common law of nations. 40 Gratian and which brought together a mass of 'rules' of ecclesiastical authority (canones), amounting to almost 4,000 texts. This decree formed the basis of the Corpus juris canonici (1582), which remained in force until the publication of the Code of Canon Law in 1917. In his Decree, Gratian gives two definitions of natural law: “Mankind is ruled by two laws : Natural law and Custom. Natural law is that which is contained in the law and the gospel, in virtue of which each is commanded to do to others as he would wish to bo done to himself (…)” “Natural law is common to all nations by reason of its universal origin in a natural instinct and not in any (positive) constitution” (Gratian Decree, 1140) At first sight, these two definitions raise doubts about the success of Gratian's enterprise, which aimed not only at compiling but also at reconciling discordant texts. The rest of the text leaves no doubt: Gratian quotes Isidore and clearly distinguishes between divine laws and human laws (or, more precisely, mores enshrined in law, which concerns both written laws and customs). Under natural law, each person is commanded to treat others as he/she would like others to treat him/her and not to treat others in ways that one would not like to be treated. This is the Golden Rule, which is found in many religious traditions (but not much in Aristotle) and plays a central role in Christian dogma. This first definition shows how far we have come since antiquity: natural law is identified with divine law, and is summed up by the golden rule. There is more: this natural law is found in the Bible! Did Gratian mean to say that everything in the Bible is natural law? Or that natural law is found only in the Bible? The first hypothesis can probably be easily excluded on the basis of the text itself: Gratian explicitly states that not everything in the Bible is natural law. Thus, eternal moral precepts such as the prohibition of murder are natural law, but not 'mystical' precepts such as sacrifice. As for the second, a positive answer would hardly combine with St. Paul's text, which implies an independence of natural law from scripture (natural law is written in our hearts). This does not seem to be what Gratian meant. In any case, this question highlights the debate that has animated much of the history of natural law, at least since its absorption by the Christian religion, namely whether natural law results solely from the divine will or whether it escapes, in whole or in part, from that will25. The second definition obviously refers to the Roman definition, as adapted by Isidore. There is a reference to the universal dimension of natural law, which can be traced back to Gaius, and to the natural instinct mentioned by Ulpian. As in Isidore of Seville, however, natural law refers to the law common to all nations and not to the rules common to humans and animals. 25In the introduction, we had already posed a question in similar terms: is law only the product of the human will, more specifically the state? 41 The relationship between these two definitions has given rise to countless controversies. It is difficult to say that (all) the moral principles contained in the Bible which, according to Gratian, are immutable, exist 'by natural instinct'. Does the prohibition of murder fall into this category? What about the Golden Rule (even if it were considered common to all nations)? The difficulty of reconciling Roman tradition and Christian dogma is understandable. Augustine and Thomas Aquinas similarly experienced the difficulty of combining Greek philosophers with Christian theology. The contradictions of the Decree do not end there: Gratian further writes that natural law is prior and superior to all things, so that everything that has been adopted as custom or imposed by law (whether ecclesiastical or secular laws) must be considered null and void if it contradicts natural law. Yet Gratian also writes that slavery is not an institution of natural law and that it is permitted by positive law, which is not a problem for him, any more than it was for the Roman jurists. A few years later, in 1160, the canonist Rufinus wrote, in 1160, that “natural ius is a certain force instilled in every human creature by nature to do good and avoid the opposite”. We note the similarity with Cicero's text. However, it is worth noting the difference between Rufinus' (and other canonists of the time) and the Stoics' conception. Whereas the latter spoke of a force that allows us to identify the right reason presiding over the pre-ordained and external order of things, the canonists saw it as a subjective force or faculty inherent in humans: the former thought in terms of cosmic determinism, the latter in terms of free human choice. This is undoubtedly the birth of subjective natural law, which was to have a lasting influence on the very concept of natural law until it was enshrined in the great American and French declarations of the 18th century (to which we shall return). Rufinus will also propose a distinction that will flourish: that between commands, prohibitions and demonstrations. The third category refers to things authorised by natural law without being, like the first, imposed or, like the second, prohibited. The first two categories concern the invariable core of natural law, whereas authorisations cover the evolving dimension of natural law, which can develop (but not diminish). This is the case with property and slavery, which are authorised by natural law, whereas originally possession is common and man is free. Finally, Rufinus, while adopting Ulpian's definition, gives it a nuanced interpretation: natural law is human but in a way that human beings share with animals. Thus, the union between the sexes has a particularity among humans: it is marriage and it is not compatible with fornication, which is proper to animals and is qualified as a sin (which could seem complicated starting from Ulpian's definition). Decretists, i.e. commentators on Gratian's Decree, have taken the confusion and complexity further, some going so far as to distinguish seven meanings of natural law, ranging from Ulpian's definition to the Golden Rule through the human capacity to discern good from evil26. 2. Augustine (354-430) As for the civil lawyers, they are less influenced by Cicero than by Ulpian: natural law is first and foremost 26 what nature has taught to all animals. 42 - A few words about Augustine Born in 354 AD in Thagaste (today Souq Ahras in Algeria), Augustine studied rhetoric in Carthage, which was at the time one of the most important cities of the Roman Empire and whose site is in present-day Tunisia. In his Confessions, he explains that it was reading a certain Cicero at the age of 20 that changed his feelings, made him desire "immortal wisdom with incredible ardour" and urged him to take up philosophy. At the same time, he confessed that reading the Bible seemed to him unworthy of being compared to the “majesty of Cicero" and that he had been seduced for several years by the Manichean doctrine (founded by the Persian prophet Mani, this syncretic current distinguished between light and darkness). Augustine went on to teach first in Carthage and then in Rome, where he arrived in 383. Although Roman students were more disciplined than Carthaginians, they did not pay for their lessons. Therefore, a year later, Augustine went to Milan where he discovered the philosophy of Plotinus and met Bishop Ambrose, which led to his conversion in 386. In 396, he became bishop of Hippo (Annaba, north-east Algeria). In 410, Alaric's Visigoths sacked Rome, arousing suspicion in some quarters that the new official religion27 was the cause of the decline of the Roman Empire. In the same year, and presumably in reaction to these accusations, Augustine began writing his greatest work: The City of God. He spent the last 20 years of his life writing it! Augustine died in Hippo in 430, while the city was being taken by the Vandals. He was the transition between two worlds, both the last of the ancient philosophers and the first great medieval Christian thinker. His literary production is considerable and has come down to us almost intact: more than a hundred titles, written over 43 years, that is, between 386 (the year of his conversion) and his death. At the heart of his philosophy is the idea that reason leads to faith. For him, the Scriptures which do require faith before understanding, are of no use if one does not understand them. In other words, faith is a movement of rational adherence to the truth. Although he had initially emphasised the human will as the means to salvation, Augustine wrote, three years before his death, a text called 'Retractations' in which he announced that he was going to revise everything he had written and subject it to severe criticism. He regretted having allowed himself to be guided more by philosophy than by Christianity and having placed too much emphasis on human will. The natural order, created by God, is good, but since man is created free, he alone can deviate from it to do evil. This freedom, however, suffers from a basic handicap: original sin, which is passed on to everyone. In other words, man being born a sinner, he needs divine grace to be saved. This grace will not be enough, however, because man's freedom will always allow him to choose evil and to stray from salvation. Augustine makes a famous distinction between the city of God and the city of men: the former is perfect, the latter very imperfect. It is difficult not to think of Plato's no less 27As a reminder, it was in 380 that Emperor Theodosius I decreed Christianity the official religion of the Empire. When he died in 395, the Empire was divided between his two sons Honorius (West) and Arcadius (East). 43 famous distinction between the world of ideas and the real world, the latter being only an imperfect version of the former which the philosopher must try to reach by leaving the cave. - Justice and the City of God “For I mean in its own place to show that—according to the definitions in which Cicero himself, using Scipio as his mouthpiece, briefly propounded what a republic is, and what a people is (…) —Rome never was a republic, because true justice had never a place in it. But accepting the more feasible definitions of a republic, I grant there was a republic of a certain kind, and certainly much better administered by the more ancient Romans than by their modern representatives. But the fact is, true justice has no existence save in that republic whose founder and ruler is Christ, if at least any choose to call this a republic; and indeed we cannot deny that it is the people’s weal. But if perchance this name, which has become familiar in other connections, be considered alien to our common parlance, we may at all events say that in this city is true justice; the city of which Holy Scripture says, “Glorious things are said of thee, O city of God.” (…) This, then, is the place where I should (…) explain, as briefly and clearly as possible, that if we are to accept the definitions laid down by Scipio in Cicero’s De Republica, there never was a Roman republic; for he briefly defines a republic as the weal of the people. And if this definition be true, there never was a Roman republic, for the people’s weal was never attained among the Romans. For the people, according to his definition, is an assemblage associated by a common acknowledgment of law and by a community of interests. And what he means by a common acknowledgment of law he explains at large, showing that a republic cannot be administered without justice. Where, therefore, there is no true justice there can be no law. For that which is done by law is justly done, and what is unjustly done cannot be done by law. For the unjust inventions of men are neither to be considered nor spoken of as rights; for even they themselves say that law is that which flows from the fountain of justice, and deny the definition which is commonly given by those who misconceive the matter, that law is that which is useful to the stronger party. Thus, where there is not true justice there can be no assemblage of men associated by a common acknowledgment of law, and therefore there can be no people, as defined by Scipio or Cicero; and if no people, then no weal of the people, but only of some promiscuous multitude unworthy of the name of people. (…) Further, justice is that virtue which gives every one his due. Where, then, is the justice of man, when he deserts the true God and yields himself to impure demons? Is this to give every one his due?” (St. AUGUSTINE, City of God) In this text, Augustine gives the impression of ensuring continuity with the ancient tradition, and more precisely with Cicero (the city is a republic if it is the “thing” (res) of the people), but this is to better emphasise the radical break in his thinking and the fundamentally new conception of natural law which is intimately associated with divine justice. 44 Augustine starts from Cicero's definition of a republic, which we have already studied. It is “an assemblage of a multitude united in agreement about law (iuris consensu) and in the sharing of interests” and an “assemblage associated by a common acknowledgment of law and by a community of interests” in Augustine's version. However, for the latter, Cicero was wrong to consider that the Roman republic met these conditions. Indeed, 'consensual law' (derived from a consensus on law) necessarily implies justice. The two go hand in hand: if there is no justice, there can be no law, as Cicero admitted. The Romans, he adds, referring to Ulpian, do they not say that law derives from justice? Do they not reject the position of the sophists who, like Thrasymachus, asserted that law corresponds to the interest of the strongest? So, Augustine continues, without true justice there can be no association of men under an agreed law, hence no people and hence no 'thing of the people' or republic. Now, and this is where the sleight of hand comes in, the justice of the Romans is not true justice. Borrowing again from the ancient tradition, Augustine asserts that justice is that virtue which renders to each person what belongs to him/her (unicuique suum dare). But, he argues, taking man away from the true God (and thus from the God of Christianity) and enslaving him to unclean spirits is not the same as giving back to each person his/her due, and thus the Roman republic (and, more broadly, all human societies) does not deserve to be called a republic as defined by Cicero. According to Augustine, it is clear that the iniquitous institutions of men should not be called law. Absolute values like goodness and justice come from God and are known by illumination. But, for Augustine, one could choose another definition of the people, namely the association of a reasonable multitude united in the peaceful and common possession of what they love. Apart from the fact that the notion of love replaces that of interest (which is not quite a detail), the essential difference with Cicero's definition consists in the absence of any reference to law. This new definition makes it possible to encompass any society and postpones the question of justice. So Rome is indeed a people, just like the Greek cities... but these godless cities do not possess the virtue of justice. As for the people, they will be more or less good depending on whether the things they love in common are more or less noble. In a certain way, the two cities are the image of the struggle that takes place in every Christian between love of God and love of self: "Let each one question his heart and he will know of which city he is a citizen". The city of God, linked to the love of God, is presented rather as a mystical community constituted by all believers and integrates the universalist conception inherited from the Stoics. It recruits its citizens whatever their language, without taking into account what differs in customs, laws or institutions. What about human rules? Martin Luther King wrote that he agreed with St Augustine that 'an unjust law is no law at all' ('mihi lex esse non videtur quae iusta non fuerit'). This phrase comes from an early work of St. Augustine: De libero arbitrio (On Free Will) in which he defended the idea that God conferred on his creature, with free will, the capacity to act badly, and thereby the responsibility for sin. What is the meaning of the statement that an unjust law is not a law? Was it the first time in the history of natural law that a philosopher explicitly suggested that an unjust human law should not be obeyed because it contradicted a higher, non-human law? Again, this is 45 a phrase that has given rise to considerable controversy, and it is difficult to offer an unequivocal interpretation. Let us try to clarify it. Augustine is not short of criticism of the earthly city: it pursues false and contemptible happinesses, far from what is required by the eternal law, which has as its end the love of God and promotes the golden rule. In spite of this, or rather precisely because of this imperfection, human laws are necessary to ensure peace and order so that, even if they can be considered unjust from the point of view of divine justice, they must be obeyed. Indeed, order is central to St Augustine's thinking. In his book on the City of God, he writes that 'the peace of the city is the well-ordered concord of the citizens in command and obedience; the peace of the heavenly city is the perfectly ordered and harmonious community in the enjoyment of God and in mutual enjoyment in God; the peace of all things is the tranquillity of order', and concludes: 'Order is the arrangement of equal and unequal beings, designating to each its proper place'. It is therefore to guarantee this order that he writes that the Christian does not hesitate to obey the laws of the earthly city which ensure its proper administration, in all that the sustenance of mortal life requires. Since man is weak, he needs rules to guide his behaviour. In his Confessions, Augustine writes: “For if it be lawful for a king, in the state over which he reigns, to command that which neither he himself nor any one before him had commanded, and to obey him cannot be held to be inimical to the public interest (...)”. In other words, and unlike Aristotle, the possibility of a conflict between natural and positive law is, as in Cicero, envisaged but, no more than in Cicero, does it lead to legal or even practical consequences: if the unjust law cannot be qualified as law, it does not follow that it must be disobeyed. This is what Thomas Aquinas will say when he examines the question of whether a judgement must always be made in accordance with written laws: “Augustine says (…): ‘In these earthly laws, though men judge about them when they are making them, when once they are established and passed, the judges may judge no longer of them, but according to them’"28. Before concluding, it should be noted that there is an ambiguity in St. Augustine's thought on a question that will persist throughout our study: whether or not natural law is independent of the divine will. Augustine has often been presented as a 'voluntarist': the eternal law corresponds only to the will of God. However, he writes elsewhere that adultery is not evil because it is forbidden by the eternal law, but it is forbidden by the law because it is (intrinsically, and therefore independently of any will) evil. We shall return to this question with Grotius. 3. Thomas Aquinas (1225-1274) - A few words about Thomas Aquinas Here we are forced to take a leap in time of several centuries. In the 13th century, two phenomena, unrelated to each other, shook up the intellectual world: on the one hand, the appearance of the mendicant orders (Franciscans and Dominicans), which seemed to challenge the established order by promoting evangelical poverty, and on the other, the rehabilitation of Aristotle's work, which proposed a global explanation of nature 28 Summa Theologica, IIA-IIAE, question n°60, art. 5. 46 constructed outside of Christian revelation. Aristotle shocked and fascinated at the same time, which explains why the University of Paris forbade the public teaching of the Stagirite's thought (with an exception for a few masters). Drawn to the Dominican order, Thomas Aquinas never stopped trying to reconcile the Christian faith and the work of Aristotle. Born in 1225 in the castle of Roccasecca, between Rome and Naples, Thomas came from a noble family. At the age of 5, he was sent to the abbey of Monte Cassino where he entered as an aspiring monk. At the age of 18, he asked to join the Dominican order without consulting his family, whom he knew would not approve of his decision. The Aquinas family did not want a mendicant friar because of the quasi-revolutionary nature of the movement. To escape this troublesome family, he left Naples for Rome and then Paris, but his brothers managed to intercept him on the road to Paris and locked him up in the castle of Monte San Giovanni. Rumour has it that his brothers even went so far as to bring a prostitute where he was held prisoner in order to divert him from his vocation... without success. After a year, he managed to escape by climbing down from a window and took refuge in Naples. Years later he commented on his decision to join the Dominican Order: "One must keep away from such a decision blood relatives above all, who in this respect are enemies rather than friends". In 1245, Thomas was sent to Paris, which was to become the intellectual centre of the Western world. There he met Albert the Great, passionate by Aristotle, who helped him to be appointed professor of theology at the University of Paris. From 1259 onwards, Thomas taught in several Italian cities, notably Naples and Orvieto. It was during this period that he worked on his most famous work: the Summa Theologica, a monumental theological and philosophical treatise (more than 3,400 pages) which he never managed to complete. He then returned to Paris for a few years before moving back to Italy where he died in 1274. Three years later, the Bishop of Paris condemned 219 propositions, some of which were associated with Thomistic doctrine (and its artistotelian influence). This doctrine was however cleared of all suspicion in 1323, when Thomas was canonised by Pope John XXII. Following Augustine, Thomas tries to reconcile reason and faith. According to him, reason must serve faith. For him, since grace does not destroy nature, but rather perfects it, it is the duty of natural reason to serve faith. However, he preferred Aristotle to Plato, whom he criticised for privileging the world of ideas over the real world. Adopting the Aristotelian concepts of power and act, form and matter, but also notions borrowed from the Arab philosopher Avicenna, such as that of essence and existence, Thomas considers that being is to substance what act is to power: the world is created, but it could not have existed, it is a gift from God. - About society “To be sure, the light of reason is placed by nature in every man, to guide him in his acts towards his end. Wherefore, if man were intended to live alone, as many animals do, he would require no other guide to his end. Each man would be a king unto himself, under God, the highest King, inasmuch as he would direct himself in his acts by the light of reason 47 given him from on high. Yet it is natural for man, more than for any other animal, to be a social and political animal, to live in a group”. (Thomas AQUINAS, On the Kingdom, written to the King of Cyprus) If only one text were needed to confirm Aristotle's influence on Thomas Aquinas, this one would do the trick: reason (logos) guides man towards his end, which is not to live alone but in society, for the animal is a political man. Life in society is thus revalued if we remember the Augustinian conception of the city of men. The same text, however, shows that Thomas was not content to copy Aristotle: we must not forget that his project was to reconcile Aristotelian doctrine with Christian dogma. Thus, the light of reason is indeed a gift from God! Interestingly, but perhaps unintentionally, Thomas, in choosing Aristotle, in a way takes the opposite view of the Church's position in the Investiture Controversy: he does not argue in favour of the role that the Church should play in the way temporal things (the world here below) should be governed. It is natural, Thomas seems to say, that man will be led to live in society, which will give rise to a state. Certainly, the light of reason, which indicates the end to be followed, is given to us by God, but, on the one hand, it is in man's nature to be a political animal and, on the other hand, divine intervention is limited to this intervention, so that the birth of a secular power does not require any mediation by ecclesiastical authority. Again, there is no indication that this was Thomas' intention. - Princeps legibus solutus est ? “The sovereign is said to be "exempt from the law," as to its coercive power; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence on him, if he acts against the law. (…) But as to the directive force of law, the sovereign is subject to the law by his own will, according to the statement (…) that "whatever law a man makes for another, he should keep himself. (…) Hence, in the judgment of God, the sovereign is not exempt from the law, as to its directive force; but he should fulfil it to his own free-will and not of constraint. Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place”. (AQUINAS, Summa Theologica) “If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power. It must not be thought that such a multitude is acting unfaithfully in deposing the tyrant, even though it had previously subjected itself to him in perpetuity, because he himself has deserved that the covenant with his subjects should not be kept, since, in ruling the multitude, he did not act faithfully as the office of a king demands” 48 (AQUINAS, On Kingship. To the King of Cyprus) In the first extract, Thomas Aquinas asks whether the prince is bound by the laws or not. The question is therefore how he stands in relation to the adage "Princeps legibus solutus est", which we have already discussed. Thomas' answer is clear: the prince is well above the laws as far as their "directive" force is concerned, that is to say, as far as they are adopted by him and it is because of his authority that they are binding. However, "no man is coerced by himself ". However Thomas also says that there is a principle of canon law that one must respect oneself the rule one has imposed on others. This principle is reminiscent of the Roman adage "patere legem quam ipse fecisti", which means "suffer the law you have made yourself" or "suffer the consequences of your own law". This adage does exist in our legal system, even though the Cour de cassation, in a judgment of 25 February 1991, and unlike the Conseil d’Etat29 , considered it to be only a maxim and not a general principle of law30. In our system, this adage means that an administrative authority cannot derogate from a regulation that it has previously issued by an individual decision. The administration is therefore bound by its previous regular decisions of a general nature, unless a possibility of derogation is provided for. Let us return to Thomas: insofar as canon law imposes adherence to the rules that one has adopted, the prince is subject to the directive force of law through his own will. In terms of divine judgment, therefore, the prince is not free from the law and must follow it, but he remains above the law since he can modify it and even dispense with it according to time and place. It is therefore a moral rather than a legal constraint. In the second extract, Thomas writes to the King of Cyprus: the absolutist dimension of the sovereign is strongly nuanced. In terms reminiscent of Manegold of Lautenbach, he writes that there is a contract between the king and his subjects, which gives the former some leeway but not the right to behave like a tyrant. If he did so, he would not respect his commitments, so that, according to a principle that we would call today the “exception d’inexécution” ("exceptio non adimpleti contractus") 31 , the people can refuse their allegiance and depose him, even if he had promised fidelity forever. Note that Thomas states that "against the cruelty of tyrants it is better to act by public authority than by the private initiative of a few". He therefore does not encourage civil disobedience, or even the resistance of a few, but admits a right of resistance of the whole people and only in case of tyrannical abuse of royal power. This is still a long way from the position Locke would take four centuries later, even if, as we shall see, Thomas considers that one cannot render a judgement on a law contrary to natural law. 29 E.C., 27 May 1988, A.S.B.L. Fed. belge Chambre syndicale médecins v. Belgian State, No. 30.165. 30 Cass. 25 February 1991, Pas I, 1991, p. 614 "Attendu que la formule patere legem quam ipse fecisti est une maxime de droit et non un principe général du droit; que la violation d'une telle maxime ne donne ouverture à cassation que si elle constitue la violation d'une disposition légale ou réglementaire qui la consacre, ce qui n'est pas le cas en l'espèce". 31 Which has been qualified as a general principle of law (Cass., 24 September 2009, Pas., I, n°1979). It is now enshrined in art. 5.98 of our Civil code. 49 - Eternal law, natural law, human law and divine law “(…) A law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community. Now it is evident, granted that the world is ruled by Divine Providence, (…) that the whole community of the universe is governed by Divine Reason. Wherefore the very Idea of the government of things in God the Ruler of the universe, has the nature of a law. And since the Divine Reason's conception of things is not subject to time but is eternal, (…) therefore it is that this kind of law must be called eternal. (…) Now among all others, the rational creature is subject to Divine providence in the most excellent way, in so far as it partakes of a share of providence, by being provident both for itself and for others. (…) the light of natural reason, whereby we discern what is good and what is evil, which is the function of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident that the natural law is nothing else than the rational creature's participation of the eternal law. (…) For it has been stated that to the natural law belongs everything to which a man is inclined according to his nature. Now each thing is inclined naturally to an operation that is suitable to it according to its form: thus fire is inclined to give heat. Wherefore, since the rational soul is the proper form of man, there is in every man a natural inclination to act according to reason: and this is to act according to virtue. (…) Accordingly we conclude that just as, in the speculative reason, from naturally known indemonstrable principles, we draw the conclusions of the various sciences, the knowledge of which is not imparted to us by nature, but acquired by the efforts of reason, so too it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to the more particular determination of certain matters. These particular determinations, devised by human reason, are called human laws, provided the other essential conditions of law be observed (…)” (AQUINAS, Summa Theologica) Thomas begins by defining a law as a "dictate of practical reason emanating from the ruler who governs a perfect community". Earlier in the text, he defined it as an ordinance of reason for the common good, promulgated by who is in charge of the community. As a result, law is first and foremost the product of 'practical reason'. He distinguishes practical reason from speculative reason, which deals for example with mathematics, with things that cannot be otherwise than what they are, as Aristotle would say. Indeed, one cannot help but think of the distinction made by the Stagirite between the two rational parts of the soul, the scientific part and the deliberative part. Secondly, the law aims at the common good, which shows again that Thomas ensures continuity with the ideas of previous thinkers (and notably Cicero). Third element, which will be decisive in legal positivism: the rule of law must be adopted by a competent authority (the prince, the one in charge of the community). 50 The fourth element, which is essential to legal certainty, is that the law must be promulgated in order to enable those to whom it is addressed to know it. For Thomas, the promulgation of natural law exists by the very fact that God has introduced it into the minds of men in such a way that it is naturally knowable. No need, then, for a Moniteur belge... If one assumes that the world is governed by divine providence (which Thomas does not question), it follows that the world is governed by God's reason, which has the nature of law and which, since divine reason is an eternal concept, must be qualified as eternal law. Eternal law is thus identified with divine reason, it is the governing reason of the supreme master of the universe: God. Thomas tells us little more about the possible content of the eternal law: we do not know it as such, but we can, through our reason, have access to its manifestations in a more or less precise way. This is the object of natural law. Indeed, everything necessary in creation is identical with the eternal law, everything contingent is subject to it: man, like every creature, has a natural inclination towards what is in conformity with the eternal law, but, as a rational creature, he participates in divine providence. The light of natural reason, which enables us to distinguish good from evil, is "nothing else than an imprint on us of the Divine light" so that natural law "is nothing else than the rational creature's participation of the eternal law". The natural law does not allow us to apprehend the eternal law in itself but allows us to know it to a greater or lesser extent through its effects, the eternal law leaving an imprint in us in the same way as a stamp in wax. The human being does not receive the precepts of the eternal law as something imposed externally: he discovers them in his inner self, and they are in harmony with his natural disposition. Thomas is the first to make such a clear distinction between eternal law and natural law. Thomas’ understanding of content of natural law is complex and deserves some further explanation. First of all, its first major precept is: do good, avoid evil. Strictly speaking, this principle does not tell us what to do in every situation, but it is the general orientation to follow, like a mould into which all our actions must fit. Secondly, man is naturally inclined towards those things that are good, worthy of being achieved. The order of the precepts of natural law thus follows that of the natural inclinations of the human being in its various components. From the nature he shares with all substances, he derives the obligation to ensure his own preservation, from that which he shares with other animals, namely the union of male and female and the care of children. It is obviously Ulpian who is called upon here. Finally, Thomas goes on to say that man has an attraction to the good in accordance with his nature as a reasonable being, which is proper to him: he therefore has a natural tendency to know the truth about God and to live in society, from which derive the obligation to avoid ignorance and to do no harm to his neighbour. What to do with concupiscence? If we consider the sensual inclination, as it exists in other animals, its end is the general good, namely the preservation of nature in the species or individual. The same is true of man as long as he remains subject to reason, so that concupiscence is that which goes beyond the bounds of reason. 51 Furthermore, Thomas asks whether natural law is the same for everyone. It is worth recalling here the distinction between speculative and practical reason: while the former deals with things 'where it is impossible for it to be otherwise' so that truth is found 'without any failure in particular conclusions as well as in general principles', practical reason deals instead 'with contingent realities which include human actions'. Thus, if the law of nature is identical for all in its first general principles (first precepts), it can have exceptions in its applications (second precepts). And even, says Thomas, "the more we go down to the details, the more the exceptions multiply". He gives the example of the deposit. The natural law requires us in principle to return what has been given to us in deposit. However, there may be a situation in which the property does not have to be returned, "for example, if a madman or an enemy of the state claimed the weapons he had deposited". Finally, Thomas raises the famous question, already asked by Aristotle, of whether natural law can be subject to change, while some say it is immutable. In addition to what has been said about the second precepts, which may be subject to change in particular applications, Thomas insists that the first precepts are absolutely immutable. For him, a rule can be said to be part of natural law either because it imposes or forbids (e.g., "One must not harm another"), or because "nature does not suggest otherwise" (Rufinus' "demonstrationes", the permissive law). In this sense, he continues, it can be said that common possession of all goods and freedom for all belong to natural law, since private property and slavery are not suggested by nature but 'by the reason of men for the sake of human life'. In this, he concludes, "the law of nature is not modified, except by addition"32. In other words, natural law is enriched by institutions suggested by human reason for the good of humanity. The third category of law is human law. In its first aspect, taken up in the above- mentioned text, human law merely transposes (or particularises) natural law to make it more practicable. In its second aspect, to which we shall return in the following text, the law is purely conventional (for example, the right of way). Finally, Thomas refers to the divine law, the fourth category which includes the old and the new law, namely the Old and the New Testaments. The divine law is, as it were, the divine positive law, which is contained in the Bible. To explain why there is an old and a new law, he will say that the Old Testament is a somewhat imperfect version of the divine law for men who were themselves imperfect and immature, using the analogy of child and adult. The divine law will, in a way, be refined in the New Testament so that there is no contradiction between the two. Through natural law, man participates in the eternal law as far as the powers of his nature permit but he must be directed in a higher way towards his final supernatural end. For this reason "the divine law is added to him, by which he participates in the eternal law more eminently". And he concludes: "As we say that the child and the mature man form the same individual, so we say that the old law and the new law form one and the same divine law which is distinguished, like the imperfect from 32 On slavery, he writes: "There is no natural reason why one individual should be a slave rather than another, if we consider it in itself, but only if we look at it from the point of view of the utility that derives from it, for example, for this individual to be directed by a wiser man, and for the latter to be helped by him, according to Aristotle. This is why slavery, which is a matter of the law of nations, is natural in the second sense and not in the first. 52 the perfect". Divine law contains prescriptions enacted by God either because they are themselves imposed by natural law or because it is his will. As Thomas writes, there are in the law of God some things which are prescribed because they are good, and some which are forbidden because they are evil ; others, on the other hand, which are good because they are prescribed, and evil because they are forbidden ("Sunt enim in lege divina quaedam praecepta quia bona, et prohibita quia mala”). God can impose fasting on such and such a day but, just as he cannot make 2 + 2 = 5, he cannot decide that a right action is wrong or the other way around. We will see that it is this limitation to the divine will, which has already been briefly mentioned with Augustine and which will be reiterated by Grotius, that will provoke the reaction of the Franciscans. - Natural law and written law “Now a thing becomes just in two ways: first by the very nature of the case, and this is called "natural law," secondly by some agreement between men, and this is called "positive law," as stated above (II-II:57:2). Now laws are written for the purpose of manifesting both these laws, but in different ways. For the written law does indeed contain natural law, but it does not establish it, for the latter derives its force, not from the law but from nature: whereas the written law both contains positive law, and establishes it by giving it force of authority. Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive law. (…) Even as unjust laws by their very nature are, either always or for the most part, contrary to the natural law, so too laws that are rightly established, fail in some cases, when if they were observed they would be contrary to the natural law. Wherefore in such cases judgment should be delivered, not according to the letter of the law, but according to equity which the lawgiver has in view. (…)” (Thomas AQUINAS, Summa Theologica) This text is a continuation of what we have already seen, while taking up elements of Aristotle's theory, whose legacy is largely assumed by Thomas: "the Philosopher affirms 'In political law the one is natural, and the other legal', in other words, established by law”. Human laws are written to manifest these two types of "just" but in a different way. Indeed, the human law that transposes natural law does not establish it since the latter draws its force from nature. On the other hand, positive law does derive its force from its adoption in the form of a law by the authority that is competent to do so. It follows that the judgment must always be in conformity with the written laws, otherwise it will deviate from natural justice or positive justice. The first observation, already mentioned above, is that the source of natural law seems to escape the omnipotent will of God. It is true that he created man, but once he endowed him with a certain nature, he has no choice but to impose on him those actions that are good according to that nature and to prohibit those that are bad. It is in the nature of certain things to be good or bad, in themselves (independently, therefore, of the divine will), and reason can identify them. This does not mean, of course, that God has no 53 discretionary power, but that this power extends only to things that are not, by nature, good or evil. Purely conventional laws might have been different, but once adopted, they bind the subjects of law. It appears that Thomas, like Aristotle before him, shows great respect for positive laws. Unlike the Stagirite, however, he envisages the hypothesis of a conflict between positive laws and natural law: if human law contradicts the latter, 'it is unjust and cannot oblige'. In terms reminiscent of Cicero, Thomas makes it clear that such a law does not in fact deserve the name of law at all: it is rather a 'corruption' of the law on which a judgment cannot be based. While unjust laws are always (or almost always) contrary to natural law, it may also happen that positive laws which are in principle just may deviate from equity in certain circumstances, in that “if they were observed they would be contrary to the natural law”. In such a case, one should not “judge according to the letter of the law”, but “according to equity which the lawgiver has in view”. And Thomas gives the example of a besieged city in which it is required to keep the gates closed. This is obviously useful for the public good, as a general rule, but if it happens that the enemies pursue citizens on whom the salvation of the city depends, it would be very harmful to that city not to open its gates to them. And therefore in such an instance the gates should be opened, in spite of the terms of the law, in order to safeguard the general interest which the legislator had in view. Here again, Thomas rehabilitates Aristotle's notion of equity, which imposes to avoid solutions that are contrary to the letter of the law in certain particular cases, by returning to the intention of the legislator. There is, however, a slight shift because the inequity that Thomas has in mind results from a contradiction with natural law. As we have seen, this was not the Artistotelian meaning. It is necessary to underline the evolution that takes place between Augustine and Aquinas. The former had a very vertical vision (city of God and city of men; positive law, which is certainly not ideal, must be obeyed for security reasons). Aquinas, under the influence of Aristotle, puts reason back at the center of reflection and revalues the city of men. Like the Stagirite, he is aware of the limits of human rationality: the legislator cannot foresee everything, so in certain cases it is necessary to resort to equity. 4. The Franciscan rupture The Franciscan Order was founded in 1210 by Francis of Assisi (1181-1226), whose precepts were based on the ideals of poverty and fraternity. After a very fast development, it became one of the main orders of the Middle Ages and, paradoxically, extremely rich. The difficulty was therefore to reconcile the ideal of poverty at the heart of the Franciscan creed with the possessions of this order. We will come back to this. For our purposes, it is important to study the thought of two of its most important representatives of this order since it constitutes, through its voluntarist (which insists on the will) dimension, an important break with the so-called "intellectualist" conception which is summarised by Thomas' "Sunt enim in lege divina quaedam praecepta quia bona, et prohibita quia mala', namely that there are certain things in the divine law that are 54 prescribed because they are good in themselves and certain things that are forbidden because they are bad in themselves (and therefore independently of the divine will). In general, for the Franciscans of the 14th century, the idea of a harmonious conception of nature as an immutable order constitutes an unacceptable limit to divine omnipotence, (which is limited only by the principle of non-contradiction). Duns Scotus' voluntarism is therefore traditionally presented as a reaction against the intellectualism or rationalism of his predecessors of the 13th century (God, like men, can only will reasonable acts). It should be noted, however, that both the intellectualists of the 13th and the voluntarists of the 14th century agreed that God could have not created man. The divergence results from the fact that, for the former, God having created man, he is bound by human nature and therefore cannot impose any law he wants (e.g. it is good to do evil), or even decide that no law should be imposed on human beings, whereas, for the latter, the divine will being absolute, it cannot be limited by human nature (God could theoretically force me to hate him). As we can see, the second conception amounts to identifying divine law and natural law by limiting the latter to the divine will. It is thus possible to see in the positions of Duns Scotus and Occam, even more than in Augustine, the roots of legal positivism. Indeed, once rid of divine authority remains the idea that positive law is only the fruit of human will, idea that will have a great success several centuries later. a) Duns Scotus (1266 -1308) Duns Scotus taught in the aftermath of the condemnations of 1277, both in Paris and in Oxford. The context was that of a 13th century turned upside down by the rediscovery of Aristotle: the Augustinian conception of free will33 was being challenged by a philosophy that gave precedence to the intellect over the will. The condemnations of 1277 were aimed in particular at reacting against the Greek determinism relayed by the interpretations of the Arab philosopher Averroes. Duns Scotus refused to integrate pagan philosophy and considered that the solutions to such important questions as God, nature and man could only be found in Holy Scripture, and must preserve the notion of human freedom. He therefore rejected the idea that the will depends on reason, as this implied the limitation of the divine will and freedom. For him, the law is essentially an act of the will, whereas Thomas made it an act of reason combined with an act of the will. To the Thomistic conception of the world, inspired by the Greek philosophers (especially Aristotle) and made up of generalities that can be apprehended by reason, Duns Scotus opposes a world of individuals, subject to the absolute and unfathomable will of God, in which law is reduced to the law, which is only a set of individual commands. It should not be concluded that Duns Scotus denied all objectivity to natural law: he admits its existence but considerably restricts its scope by limiting it to what God cannot but impose on man on pain of contradicting himself. This is true of the first commandments, such as the one prohibiting the existence of other gods. Some passages in his work also cast doubt on the fact that he is totally voluntaristic, notably when he writes that it is right reason that allows us to distinguish between good and evil. 33 At least until Augustine wrote his Retractations. See the section on him above. 55 b) William of Occam (1287 - 1347) An English monk, philosopher and theologian, William of Occam was born and raised in the village of Occam before becoming a professor at Oxford. In order to understand his thought, it is necessary on the one hand to situate him as a nominalist thinker and, on the other hand, to summarise his position in the famous debate between the Franciscans and Pope John XXII concerning the right of property. William of Occam followed in the footsteps of Duns Scotus and, at the heart of the dispute over universals, defended the position of nominalism against that of realism. In short, realists consider universals to be real entities, whereas nominalists believe that only individuals exist and that general notions are simply labels created by men (names) to understand the world. In reality, the issue is more complex and one must distinguish between radical nominalists, for whom universals are empty words, they have no meaning ('Brussels' means something but 'city' means nothing) and moderate nominalists like Occam, for whom universals are conventional terms: they name individuals who share characteristics and, while they are not real, they possess the meaning that is arbitrarily given to them. Similarly, radical realists (such as John Scotus Erigena) consider universals to have an independent reality of their own, whereas moderates, such as Thomas Aquinas, believe that they are real but have no independent existence: they exist only in the concrete individual and in the mind that conceptualizes them. Although the term 'nominalism' did not appear until two centuries later, the nominalist conception influenced thinkers such as Thomas Hobbes, John Locke and David Hume (all of which we will study later). It was also likely to encourage the development of individualist thinking, since the emphasis was not on what was common to men (the city, justice) but on what was specific to them (their singularity). The relevance of William of Occam's thought for our purposes becomes clearer when we examine the argument he puts forward in defense of the Franciscans' position regarding their wealth, which as said earlier, was hard to reconcile with Francis' ideal of poverty. At first, the papacy was understanding. As early as 1231, a few years after the death of Francis, Pope Gregory IX considered that the Franciscans could be content to have the use of the things they needed. In 1245, Pope Innocent IV made it easier by incorporating all the goods of the Franciscan order into the property of the Roman Church (in a mechanism reminiscent of the English "trust"). In 1279, Pope Nicholas III formalized the situation on a legal level by promulgating the bull Exiit: it clearly stated that the Franciscans had given up everything except the simple factual use of things. This text, which had become the Magna Carta of the order, was however, for reasons that remain obscure, called into question by Pope John XXII. As early as 1321, John XXII stated that, since the use of consumable goods destroys the substance, the use of such goods by Franciscans necessarily implies a right of property on their part which, being a natural right, cannot be renounced. While it is true that Adam and Eve had a common property, Adam was originally the sole owner of the world. In Genesis (1:28), God enjoined Adam to have "dominion" (dominamini) over the fish of the sea, the birds of 56 the air and every animal that moves on the earth. Since only Adam existed at the time, there was no common property but an individual property established by divine law, which cannot be renounced. This papal attack provoked reactions from several Franciscans, including William of Occam. - The birth of the notion of individual right (droit subjectif)34? “The right of use (jus utendi) is a legal power to use an external object; a power of which no one can be deprived against his will unless he has committed a fault or there is some other reasonable cause; a power such that, if someone is deprived of it, he can take legal action against the person who deprived him of it” (William OF OCCAM, Opus nonaginta dierum) For Occam, the term 'dominamini' was addressed to Adam and Eve, so that one cannot speak of individual property. Moreover, the word should be understood as referring to a power to govern and not to a concept of property. Therefore, one cannot speak of a natural right of property. Occam admitted that God had also conferred on them a lawful power of use (jus utendi), which is certainly a natural right that cannot be renounced, but considered it necessary to distinguish the situation before and after original sin. Before the fall, men had this natural power to use things, but there was no such thing as property. The power of appropriation came only later, as a result of both nature and human reason in the sinful condition. All things were then divided by the accumulation of laws, conventions and customs giving property rights their status as a right of human origin but authorised and even, once adopted, protected by natural law. According to Occam, it is therefore 'lawful to renounce ownership and the power of appropriation but no one can renounce the natural right of use'. There is a discrete but unmistakable shift from a discourse of natural law to one of natural rights, leading the philosopher and legal historian Michel Villey to associate the birth of the notion of “droit subjectif” with the philosophy of William of Occam. However, more recently, the American historian Brian Tierney has shown that the doctrine of individual rights can be traced back to the work of canonists in the 12th and 13th centuries, who used the language of reason and free will for legal purposes to explain the different occurrences of the term ius naturale that they encountered in the Decree of Gratian (1140). Thus, as we have seen, the canonist Rufinis wrote in 1160 that ““natural ius is a certain force instilled in every human creature by nature to do good and avoid the opposite”. Later, Marsilio of Padua, in his Defensor Pacis (1324) wrote in the same vein: 'in one sense law (ius) means the same thing as law (lex), divine or human (...) in a second sense, law (ius) refers to any act, power or human habit (...) which is in conformity with law taken in the first sense”. 34While the notion of “right” is the closest translation of the notion “droit subjectif”, one should note that is understood in our legal systems in much stricter way. To emphasize this, we will often mention the expression “individual right” which is probably not fully satisfactory. 57 What is clear is that no one before Occam had distinguished so carefully between 'ius positivum' and 'ius naturale' when this word was taken in its subjective sense to mean an individual right. While Occam did not invent the category of “droit subjectif”, it is clear that he placed this concept at the heart of his theory of law and, more broadly, of legal debate. This subjectivist conception is, moreover, also the product of his time, a context in which Christian morality reserves a place of choice for human freedom. Humans, made absolutely free in the image of God, must be able to be judged responsible for the evil the commit. They must also be able to choose to be part of society, which can then not be conceived as an original status. This opens the way to the figure of the social contract that will emerge a few centuries later. It is partly through Occam's work that the subjectivist language of the canonists has endured in later writings. Among the debates that animated these authors were reflections on the right to self-preservation. For example, does a condemned person have the right to escape at all costs from the punishment that has been inflicted? Some will consider that this is the case, because of the natural right to survival. Others deduce from this right that the poor have the right to benefit from the things they need to survive. The obligation of the rich to give alms would then be not only an obligation of charity but an actual legal duty to which would correspond a right of the poor to take what is necessary for their survival35. Occam's work will be preserved thanks to the encyclopaedic writings of 'late' medieval jurists such as Gerson or Summenhart, who will be well known to the Spanish scholastics of the 16th century. As we shall see, it is to the latter that we owe the revival and deepening of the discourse on individual rights... One can then trace a more or less direct line between the canonists of the 12-13th centuries and our modern human rights. 5. Towards modern natural law: (subjective) natural law and reason Although it emerged in Italy in the 15th , or even the 14th century, the Renaissance did not really reach France until the 16th century. It should be remembered that both France and England remained entangled in the Hundred Years' War until 1475... The other major event of the early 16th century was the reforming work of Luther and Calvin. According to Luther, the believer does not need tradition or the church to understand the Bible. In case of doubt, one must resort to systemic interpretation, because the whole of Scripture guides the understanding of its individual parts. The Christian is bound only by the law of Christ. If the world were populated only by true and genuine Christians, "there would be no need or use for princes, kings, lords, swords and laws"36. However, given the large number of sinners, Luther defends the necessity of positive laws in a purely instrumental sense. As an Augustinian, he blames human reason, promotes a cult of authority and advocates absolute obedience to temporal authority of divine origin, regardless of the behaviour of rulers. The Renaissance and the Reformation were therefore the main events that led to the secularisation of public life and the emancipation of the individual from spiritual authority, being the key factors from which the modern world emerged. It is not absurd to argue that the notion of the modern state arose from the need to find another religious 35One can imagine the success of such an argument in a criminal trial today... 36LUTHER, 'De l'autorité temporelle et dans quelle mesure on doit obéissance lui', in Luther et l'autorité temporelle, 1521-1525, trans. by J. Lefebvre, Paris, Aubier-Montaigne, 1973, p. 81. 58 legitimation. The 16th century was indeed a new cultural world, in which the clergy no longer had a monopoly on studies, given the emergence of a new social class of wealthy bourgeois and nobles. Freed from their military duties, they were available to flesh out the thought often monopolised until then by ecclesiastical academics. Associated more and more closely with reason and the individual, natural law was to enjoy a certain success among legal scholars. We will limit our study to the Spanish scholastics and English jurists. a. The Spanish Scholastics (the School of Salamanca) In reaction to the reformist doctrine, the School of Salamanca, which included the Dominican De Vitoria and the Jesuit Suarez, defended a Thomistic revival. The Spanish scholastics preferred the theory of 'sufficient grace' given by God to all men, which allowed them to rediscover the natural sources of law and the rules of justice, rather than the Calvinist doctrine of predestination. However, they were not satisfied to just take up the doctrine of Thomas. If the latter had restored positive laws, he nevertheless derived them from the eternal law. In the meantime, Gregory of Rimini had declared in the 14th century that an offence against reason would be a sin, 'even if God did not exist'. This seemingly innocuous statement, later taken up by Grotius, would nevertheless open the door to the secularisation of law. Thus, De Vitoria and Suarez in particular, there is an evolution from natural law to a more rational law, which is no longer presented as an activity aimed at a transcendent end (like with Aquinas), but as a set of laws conferring individual rights. Deductive reasoning is preponderant and the conclusions are linked together to form a system. In addition, the humanism of the Spanish jurists and theologians, horrified by the treatment of the native Americans, would encourage the development of the idea of natural rights. The status of the American Indians led to the famous Valladolid controversy (1550-1551), which mainly opposed the Dominican friar Bartolomé de Las Casas and the priest and theologian Gines de Sepulveda. In order to defend the thesis of slavery, Sépulveda invoked Aristotle and Thomas Aquinas. Quoting the former, he thinks that it is natural to have slaves and masters, the former needing to be directed just as the body needs the mind to guide it. For Sepulveda, there is no doubt that the American Indians are an inferior race, so their enslavement is justified. Bartolomé de Las Casas, who had been to America and witnessed the horrors of colonisation, replied in a Stoic-inspired 'Christian' logic that there is equality between all human beings: neither slavery nor the dispossession of these Indians from their land can therefore be justified. - Francisco De Vitoria (1492-1546) De Vitoria became a Dominican in 1504. In Paris, where he studied for 16 years, he was taught by the Scotsman John Major, an occamist who was also influenced by Renaissance humanism. He then returned to Spain where he taught in Valladolid and then in Salamanca where he founded the so-called Salamanca School (1526-1546). His main achievement was to rethink Thomistic principles of natural law in the light of 16th century conditions. He is also considered one of the fathers of public international law: starting from the notion of ius gentium as meaning the law common to all nations, he presents it 59 as a law that applies to states. In the absence of supranational institutions and positive law adopted by such bodies, natural law seems to be the best source of inspiration. It will thus lay down the principles according to which States must respect each other's sovereignty, freedom of movement, freedom of the seas, but above all the rule of "pacta sunt servanda", which is the basis of conventional international law. However, it is becoming more difficult to claim that nature is indeed at the origin of these rules, and not human reason, or even... human will. Indeed, according to De Vitoria, there is an implicit consent of States to the rules of the law of nations from the very beginning. It is also on the basis of a study of the law of states that he concludes that there is nothing, either in natural law or in the ius gentium, to justify the enslavement of the American Indians or to consider that they could not be holders of a right of property. This is permitted by natural law, even if originally the regime of collective dominium applied. We find the idea of a "permissive" natural law, already put forward by Thomas and before him by Rufinus, but sifted through Franciscan subjectivation: property is the power of a subject in relation to an object. In order to support his theses, De Vitoria draws on the authority of Aristotle and Aquinas, but allows himself a rather free interpretation of their words: “As Aristotle elegantly and accurately observed, some are slaves by nature, namely those who are better fitted to serve than to rule. (…) To this I answer that Aristotle certaintly did not understand that such people belong by nature to others and no dominion over themselves and over other things” “He (Aquinas) says therefore that right is that which is licit in accordance with the laws. And so we use the word when we speak. For we say, « I have not the right of doing this », that is, it is not licit for me ; or again, « I use my right », that is, it is licit”. (De Vitoria, De justitia) As regards the first extract, one will indeed recognise Aristotle in the first sentence, but it is not certain that he would have recognised himself in the interpretation given in the second sentence: on the contrary, the Greek philosopher did mean that some people belonged by nature to others and did not possess self-control... Thomas would probably have been no less surprised to see the shift between what he wrote about law (as being what is in conformity with the laws) and the Spanish jurist's amalgamation with what appears to be a concept of individual right: I have the right to do something, I use my right. In fact, against Aristotle (with regard to equality between humans) and far from Thomas Aquinas (with regard to the importance of rights), De Vitoria will develop a conception in which all humans have natural rights that are proper to them and are rooted in human nature (notably the right to exist and the right to self-preservation, but also the right to property). Property is certainly a human creation, but once it exists, it is protected by natural law: "Certainly, as far as the Indians are concerned, no one can take their lands from them" (De Justitia). However, the Indians did not agree with being deprived of their 60 possessions, let alone their freedom. Anxious not to alienate the Spanish authorities entirely, De Vitoria nevertheless added that there was also a natural right to self-defence. Thus, if the Spanish conquistadors are attacked by the Indians, they have the right to defend themselves and, if necessary, to keep what they have confiscated from their attackers. One could dispute the fact that this last part is encompassed by self-defence… - Francisco Suarez (1548-1617) Suarez was born in 1548 in Granada. He enrolled in the Faculty of Law in Salamanca, but preferred the religious path and joined the Society of Jesus at the age of sixteen. He became a Jesuit priest in 1572. Considered one of the greatest scholastic authors after Thomas Aquinas, and author of important treatises on law, metaphysics and theology, he was nicknamed the "Doctor eximius" (Extraordinary Doctor) and taught philosophy in Valladolid, Rome, Salamanca and finally Coimbra, where he died in 1617, not without having published his famous De legibus ac de Deo legislatore five years earlier. His work combines as much as possible the intellectualism of Thomas and the voluntarism of Duns Scotus and, as we shall see, offers a true synthesis of these currents when he addresses natural law. Suarez distinguishes between those who, like Gregory of Rimini, say that natural law is an indicative law in the sense that it is not the expression of a will but "indicates" what is naturally good and what is naturally bad, and those who consider that natural law consists entirely of a divine command or prohibition, deriving from the will of God as author of nature, such as "Occam, who says that no act is bad except insofar as it is forbidden by God and vice versa (...)". Here we find again the distinction between those who consider natural law to be the product of the divine will and those who disagree. To the intellectualists, Suarez replies that the concept of law implies a will, a legislator who imposes: natural law cannot therefore be identified with human nature, with a faculty of rational nature or with right reason. If natural law is independent of any will, even of the divine will, then it is not a law. To the voluntarists, he retorts that there are things intrinsically good or bad and that human nature is the foundation of natural law, which is the measure of good and evil. The synthesis he proposes is therefore to affirm that natural law is not indicative: it is prescriptive and expresses the will of God. If this will does presuppose an intrinsic goodness or evil of actions, it gives them a binding character. Natural law is really law and God is its legislator, but it is not conceivable that God would prohibit anything other than what is intrinsically evil (which does not exclude his freedom). In other words, the intrinsically good or bad nature of actions is revealed by right reason but its obligatory character can only be derived from a divine command. Suarez also takes up the notion of permissive natural law: while common property is a matter of original natural law, natural law can be modified by human action and, if private property is established, it will be protected by the natural law that prohibits theft. Following Vitoria, Suarez also derives from the work of Aquinas a notion of "ius" as referring to subjective right, namely a "kind of moral power (facultas) that every man has 61 over his property or what is due to him". For Suarez, the right of self-defense and the right of self-preservation are the most important natural rights. Suarez also tries to found a theory of the state based primarily on the human will and the consent of men. Still in the spirit of a permissive natural law, this act of will is, however, extended by a protection of natural law: once instituted by human will, public authority enjoys a power over the members of society that draws its strength from natural reason and finds its limit only in an abuse of tyrannical power. In the work of Vitoria as well as in that of Suarez, one can thus perceive an attempt to combine a solid theory of state sovereignty with a continuous affirmation of individual natural rights, the validity of positive law being based on natural law. Finally, Suarez adopts the Greek notion of 'epikeia', which consists, for those who apply the law, in correcting its application when obedience to the law is iniquitous, when the result of its application would be too painful or when it can be presumed that the legislator did not want his text to be obligatory in all circumstances. Here we can already feel the shift from the notion of equity to a conception that includes Christian compassion, aiming to avoid an overly painful application of the law. b. English lawyers A shift from natural law, as a divine emanation, to a law derived from human reason will also be witnessed amongst the English jurists of the 16th century, even if a very gradual way. - Christopher Saint-Germain (1460-1540) Born in 1460, Ch. Saint-Germain studied law at Oxford and later became a renowned lawyer in London. In 1523, he wrote a famous dialogue between a Doctor "in Divinity" and a law student on the common law. This law textbook became a classic, and was superseded only by the famous Blackstone Commentaries more than a century later. Saint- Germain died at the age of 80. - The law of nature is the law of reason “The Law of nature specially considered : which is also called the law of reason, pertains only to creatures reasonable, that is man (…) this law is always good and righteous (…) and it is written in the heart of every man, teaching him what is to be done, and what is to be fled ; and because it is written in the heart, therefore it may not be put away, or it is never changeable by no diversity of place, or time : and therefore against this law, prescription, statute nor custom may not prevail : and if any be brought in against it, they be not prescriptions, statutes nor customs, but things void and against justice. (…) As when anything is grounded upon the law of nature, they say, that reason will that such a thing be done ; and if it be prohibited by the law of nature, they say it is against reason, or that reason will not suffer that to be done”. 62 (Chr. SAINT-GERMAIN, Dialogues between a doctor and a student) Three things stand out on reading this text. First, as already indicated, the central importance of reason: the law of nature is nothing else than the law of reason. As with the Spanish scholastics, natural law thus tends to free itself from nature, to be only about man. Secondly, it now seems established that the contradiction of positive law with natural law leads to the invalidation of the former: against natural law, no rule of positive law can prevail. Finally, the text ensures continuity with Paul of Tarsus, who wrote 15 centuries earlier that the natural law is written in the heart of every man. There is also continuity with Aristotle and Aquinas through the notion of equity: “Equity is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man, and in every general rule thereof (…) it is not possible to make any general rule of the law, but that it shall fail in some case (…) in some cases it is necessary to love the words of the law, and to follow that reason and justice requireth, and to that intent equity is ordained; that is to say, to temper and mitigate the rigour of the law. And it is called also by some men epikeia ; the which is no other thing but an exception of the law of God, or the law of reason, from the general rules of the law of men, when they by reason of their generality, would in any particular case judge against the law of God or the law of reason : the which exception is secretly understood in every general rule of every positive law (…) Also if a law were made in a city, that no man under the pain of death should open the gates of the city before the sun-rising: yet if the citizens before that hour lying from their enemies, come to the gates of the city, and one for saving of the citizens openeth the gates before the hour appointed by the law, he offendeth not the law, for that case is excepted from the said general law by equity, as is said before. And so it appeareth that equity rather followeth the intent of the law, than the words of the law”. (Chr. SAINT-GERMAIN, Dialogues between a doctor and a student) Saint-Germain uses the notion of epikeia (equity), which he obviously borrows from Aristotle. From the Stagirite he takes the idea that it is not possible to state a general rule of law that does not fail in certain cases and that the intention of the law is often to be preferred to its letter. The ideas of Aristotle and the Roman orators, preserved by Thomas, the canonists and the humanists, thus became one of the foundations of the English doctrine of equity. Following Thomas, the English jurist believes that the source of inequity lies not so much in the incompatibility of a case with the will of the legislator as in the contradiction of the 63 solution envisaged with natural law, identified with the law of reason. The example given by Saint-Germain is clearly borrowed from Aquinas. Finally, as we have already seen with Suarez, the notion now includes a dimension of compassion ("sweetness of mercy") that was absent in Aristotle and tempers the rigour of the law. It is often in this sense that equity is understood today, and this is undoubtedly the cause of its discredit, giving rise to fears of arbitrariness and subjectivity of judges. Let us take the example of the parent who steals bread to feed his or her children: such an example could not fit into the Aristotelian notion of equity but rather into that which invites us to temper the rigour of the law "with the sweetness of mercy"37 - Richard Hooker (1554-1600) Born in 1554, Hooker was educated at Corpus Christi College, Oxford, where he became a professor in 1577, before being ordained a priest in 1579 and marrying a few years later38. Hooker is best known for the publication of his The Laws of Ecclesiastical Polity in 1594. In this book, he developed Anglican theological thought, against Puritan critics who demanded, in the spirit of Calvinist reformation, the pure and simple disappearance of the clergy. - The laws of nature/reason “The laws (…) of nature bind men absolutely, just as men, even if they have no settled fellowship, no solemn agreement among themselves about what to do and what not to do. What naturally leads us to seek communion and fellowship with other people is the act that on our own we haven’t the means to provide ourselves with an adequate store of things that we need for the kind of life our nature desires, a life fit for the dignity of man. It was to make up for those defects and imperfections of the solitary life that men first united themselves in politic societies”. (HOOKER, The Laws of Ecclesiastical Polity) The tendency to free oneself from the 'natural' dimension of natural law, already perceptible in Saint-Germain, appears more clearly in R. Hooker, for whom the law of nature is that which reason can discover, without the help of revelation, supranatural or divine. It is clear that, for these English legal scholars, natural law is the law of reason. For the rest, Hooker devotes a substantial part of his book to paraphrasing Aquinas. Hooker presents a kind of inconvenient state of nature, from which it is only possible to escape by submission to public government, which can provide peace, tranquillity and happy enjoyment of property. While he acknowledges that there may be a kind of natural right to govern in the noble, wise and virtuous (he is no doubt aiming at Plato), he insists that this right can only be exercised with the consent of those who are governed (which, it will be agreed, severely limits the right in question). 37 As we have seen, moreover, some canonists believed that there was a natural right for the poor to take the things they needed to survive. 38 It will be recalled that Henry VIII broke with the Pope in 1534, founding the Anglican confession. 64 The natural tendency of men to want to live in society may be reminiscent of Aristotle, but there is no mistaking the individualistic and 'contractual' dimension that lies at the foundation of civil society: it is to protect one's own interest that one seeks the company of others, and the consent of all is required, a harbinger of social contract theories. Indeed, it is likely that this work, considered as one of the means by which continental political theory reached England, did not leave indifferent Thomas Hobbes and John Locke. - The definition of law “They who are thus accustomed to speak apply the name of Law unto that only rule of working which superior authority imposeth; whereas we, somewhat more enlarging the sense thereof, term any kind of rule or canon, whereby actions are framed, a law” (HOOKER, The Laws of Ecclesiastical Polity) In this second excerpt, Hooker evokes in his first sentence the positivist position “par excellence”: one calls law only those rules that have been adopted by the higher authority. However, Hooker prefers a broader meaning of the word 'law' (which, for the record, also translates as 'right'), namely all rules that are intended to guide, or direct, or impose behaviour on man. 65

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