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Papauté, monachisme et théories politiques. Volume I

 | 
Pierre Guichard
, 
Marie-Thérèse Lorcin
, 
Jean-Michel Poisson
, 
et al.

La papauté : L'institution et les relations avec l'État

Legislator divinus-humanus: The medieval pope as sovereign

Michael Wilks

Texte intégral

  • 1 Conrad of Megenburg, Œconomica, iii.6, éd. & tr. L. Thorndike, University Life and Records in the (...)
  • 2 For a further account see S. Kuttner, «Gratian and Plato», Church and Government in the Middle Age (...)
  • 3 Wilks, «The Problem of Private Ownership in Patristic Thought», Studia Patristica, vi, Texte und Un (...)
  • 4 J. Le Goff, Medieval Civilization, tr. Oxford, 1988, p. 255f.; The Birth of Purgatory, tr. Chicago (...)
  • 5 296e-7b: for the subsequent history of the lex animata theme see the references in E.H. Kantorowic (...)
  • 6 MGH, Ep., iv, no. 229, p. 373; for Bede see the discussion in J.-M. Wallace-Hadrill, Early Germani (...)
  • 7 Otto of Freising, Gesta Friderici, iii. 1, tr. Mierow: New York, 1953, p. 174; Godfrev of Viterbo,(...)
  • 8 Policraticus, v.10, éd. Webb, p. 566.
  • 9 Engelbert of Admont, De ortu, progressa et fine imperii Romani, 6, éd. Goldast: Frankfort, 1614 p. (...)

1The twelfth century, a period which Marcel Pacaut has made so much his own, witnessed an important if largely unappreciated redefinition of the intrinsic nature of papal power. It became less distinctively Platonic in character. The Augustinian tradition had always recognised its indirect debt to Plato: in the words of the mid-fourteenth-century writer, Conrad of Megenburg, Plato was the greatest of the pagan philosophers because he came nearest to the teachings of Christianity1. Although the works of Plato were not known to the Middle Ages in the way that the Aristotelian texts became available in the twelfth and thirteenth centuries, the essentially Neoplatonic character of early medieval philosophy and theology produced a political system whose inspiration might have been drawn directly from the Republic. In point of fact it was the opening paragraphs of the Timaeus, put into Latin by Calcidius c. 400, which served to recapitulate the teaching of the former dialogue. This provided material for comparisons between the community of property practised by the Early Church at Jerusalem and that by the Platonic guardians2, which in turn gave support to the Augustinian view that all ownership should be vested in the Ecclesia itself to escape the Biblical condemnations of private wealth3. So too the well known division of medieval society into the three orders of prayers, fighters and producers4 was immediately analogous to the Platonic separation of functions into guardians, auxiliaries and labourers (even if Plato himself had made this into more of a simple distinction between an aristocracy of priests and warriors and a lower class of free and slave workers, which would have suited medieval conditions still more). Above all it was Plato's insistence that the best society must be governed by philosopher-kings which had a direct appeal not only to the clergy of the hierocratic system — and the popular notion of the Church as a castle, the castra Ecclesiae, was curiously reminiscent of Plato's suggestion that the guardians should live in a separate fortified camp — but also caught the imagination of the defenders of lay supremacy. Plato's requirement in the Statesman5 that there should be a supreme philosopher-king acting as a kind of living law to the rest of the polis surfaced repeatedly in the medieval Empire. In line of descent from Musonius Rufus, Lactantius, Synesius, Boethius and Bede, Alcuin had urged Charlemagne to study philosophy because Plato had declared that kingdoms would be happy if philosophers, amatores sapientiae, reigned over them6. In due course the new Charlemagne, Frederick Barbarossa, was hailed by Rahewin as a ruler possessing the gift of supreme wisdom, which brought such tranquillity to Germany that men, land and climate changed their very nature; whilst Godfrey of Viterbo lauded Henry VI in the dedication and prologue of Speculum regum as another philosopherking who realised that to govern without philosophy was to err rather than to rule7. Despite John of Salisbury's sour remarks that philosophers who resorted to the life of courts were more like hermaphrodites than men8, this continued to be a familiar theme: Engelbert of Admont explained the superior qualities of rulers in past ages from the fact they were philosophers; and Dante’s monarch was supposed to be able to turn the world into an earthly paradise by reading philosophical documents in the same way that the pope studied, or ought to study, the Bible9.

2Having transferred most of the features of imperial government to itself, it would be surprising if the medieval papacy did not also appear in the guise of a Platonic rulership. This was made easier by the fact that for most of the early Middle Ages the Roman church retained a predominantly eastern outlook and character. Christianity was of itself a religion nurtured in the Hellenic world, and for those of us brought up in the western tradition it is sometimes difficult to appreciate that for most of its formative period the papacy was less of a Roman church than a Greek church, a Byzantine church in exile during the long centuries of barbarian incursion. Although the earliest statements of the supreme authority of the apostolic see date back to the first and second centuries, it was the post-Constantinian church which saw the real development of the claims of the Roman church to monarchic status, and they were developed during a period in which the outlook of the Roman church was oriented firmly towards the Greek east. If the papacy slowly extricated itself from its legal subordination to Constantinople between the eigth and eleventh centuries, the Greek ghost was not exorcised until well into the twelfth century, if then. The conquest of Constantinople remained a prime target of papal policy until it was achieved in 1204; the growing imperialisation of the papacy itself looked like another version of Byzantine Caesaropapism; the enduring but subconscious assumptions of papal thinking remained pre-eminently Greek far longer than one would expect; and were encouraged to do so by the fact that the basis of the papal supremacy in practice, its uniquely developed system of canon law, was a law which had originated and been shaped in a Greek mould.

  • 10 P.G. Stein, Legal Evolution: The Study of an Idea, Cambridge, 1979.
  • 11 J.-H. Oliver, The Athenian Expounders of the Sacred and Ancestral Law, Baltimore, 1950; H. Lloyd-J (...)
  • 12 See R.K. Sprague, Plato's Philosopher-King, Columbia, S. Carolina, 1976, especially p. 31-42, 86, (...)
  • 13 Policraticus. iii.1, p. 233.
  • 14 For the papa ipse Petrus theme see the examples given by Y.M-J. Congar, L'ecclésiologie du haut Mo (...)
  • 15 The best short description of Gregory VII and iustitia is still W. Ullmann, The Growth of Papal Go (...)
  • 16 G. Schneider, Prophetisches Sacerdotium und Heilsgeschichtlichen Regnum im Dialog 1073-1077: Zur G (...)
  • 17 The fragmentary text of Humbert’s De sancta Romana ecclesia is edited by P. Schramm, Kaiser, Rom u (...)
  • 18 Adrian II, «Prima salus est rectae fidei regulam custodire» - and therefore the pope is conservato (...)
  • 19 Cf. Cod. X.xviii.1, «leges humanae sunt per ora principum divinitus promulgatae»; as used by John (...)
  • 20 Macc., v.19. For the importance of physical possession of the sedes beati Petri see Ullmann, «Roma (...)
  • 21 De ordinando pontifice, MGH, Libelli de Lite, i.13: Humbert's authorship of this fragment has been (...)

3In a study of the evolution of legal systems10 Professor Peter Stein indicated that there is usually a fairly uniform pattern of development of law in any early society, and the early law of the Christian Church showed a marked similarity to the administrative law made by the government of the polis itself, and, standing behind it, the «original» divine foundation law of the State, a sacred ancestral law guarded and expounded by the priests11. The latter, although often a haphazard jumble, was formed by two sets of accumulations: on the one hand a collection of decress and rituals; on the other hand the chresmoi, a steadily expanding collection of statements made by the the oracle to which the polis adhered and which was served by the priests. Athens adhered to Delphi, and Plato's philosopher-kings were intended to be expositors of the sacred law relayed from the Delphic oracle. For this reason they were seen as custodians or guardians, not merely as keepers of the oracle itself, but also as those who both held the law and kept it themseves. Because the guardian was a locum tenens, one who literally held the holy place, his function was to act as warden of the sacred laws and to be a purveyor of this truth to the rest of the community, which in turn qualified him to govern it12. Much of the same situation applied during the first millenium of the Christian Church. The iustitia Christi replaced the justice ot Zeus, but the faith and the rules of right living to be extracted from it were seen, so to speak, as a solid body of righteousness which had to be maintained before it could be expounded. This gave the early law of the Church a quasi-oracular quality, something which was already there and had only to be guarded and brought forth. It was (to quote John of Salisbury) a corpus iustitiae13, proclaimed by a priestly exegete who was himself a living expression of the spirit of the oracle, an audible voice of the genius loci, or more appropriately in this context a Petrus vivus14. It is something which can be seen very clearly in Gregory VII's famous definition of the sacred canons of the lex Christiana as iustitia15, a body of right, an almost tangible lump of righteousness, which it was the duty of the vicar of saint Peter to express and against which all things were to be judged. If Gregory was himself more attracted to a view of his own position as a Jewish prophet on the Old Testament model16, he nevertheless followed Humbert in regarding himself as the guardian of a most holy place, the sancta Romana ecclesia. The Roman church was the summit of the priesthood, and the function of the sacerdotium in general was to exercise a guardianship of righteousness so that the rest of the community could live and act in harmony with the divine will and therefore itself17. But the special preeminence of the papal position is that the pope occupies the actual see of Peter, and this is portrayed with all the undertones of an oracle: it is a rock on which the pope sits, a place which gives utterance through the lips of its custodian, the custos fidei18. The faith and laws of the Christian religion, the teaching of the sacred canons, issue from the mouth, the ora, of the ruler19. The emphasis is very much on the place. The rock is somewhere to be visited — the limina sanati Petri — one stands on the threshold of the shrine to receive the faith from the keeper of the place. It is the Maccabean «place which God elects»20, and it is the possession of the place, contact with the oracle in a virtually physical sense, which is the supreme qualification for government. Who, asked Humbert, could «obtenire locum Christi»? or again, «Quo loco, quo ordine21?». Amongst all the ordained members of the Christian society who have a care for the faith, it is the pope who is head because he sits on the sedes apostolica so that its wisdom, the knowledge of the truth, the sacred canons of right, flow through him.

  • 22 B. Tierney, Foundations of the Conciliar Theory, Cambridge, 1955; «Pope and Council: Some New Decr (...)
  • 23 Origins of Papal Infallibility, 1150-1350, Leiden, 1972, espec. p. 93-130.
  • 24 H. Zimmermann, Papstabsetzungen des Mittelalters, Graz-Vienna-Cologne, 1968, p. 175-
  • 25 Dictatus papae 19, «Quod a nemine ipse iudicari debeat»; 22, «Quod Romana ecclesia numquam erravit (...)
  • 26 De sancta Romana ecclesia, quoting Job, ii.7 also Isa., i. 5-6.

4This attitude goes a long way to explain why the question of papal infallibility did not appear as a serious problem before the thirteenth century. As is well known22, the canonists began to pursue the matter of papal heresy at some length after the middle of the twelfth century, a discussion largely inspired by Humbert’s own contribution to Gratian's Decretum at d.40 c.6, and one need not doubt that the vigour of this debate, even if not continued by the Decretalists afterwards, reflects growing concern about the development of papal supremacy in this period. The use of the idea of papal infallibility itself as a limiting concept — that once a pope had decreed something to be right, subsequent popes could not declare it to be wrong —was initially elaborated by Peter Olivi in the 1270s and, as Brian Tierney has indicated so well, represents an essentially conservative reaction against papal claims to sovereignty which reached a crescendo with Boniface VIII23. But in previous centuries the oracular quality attributed to the papal office made such concerns largely irrelevant. Of course popes could always be accused, and were, of being wrong: but if this was to have any practical effect it had to be done (as Henry IV accused Gregory VII) on the grounds that he was a false pope, an intrusor apostolicae sedis, who should never have been there in the first place, which was technically a separate issue. Deposition was simply a physical removal of somebody who had no right to the Roman church, so that the question of deposing a pope was never involved24. But a genuinely elected pope immediately obtained all the capacities of inerrancy stipulated in the Dictatus papae25: a keeper of the faith was by definition one who adhered to it and, like any oracle, was to be listened to because he had to be believed to be right. Acceptance of the automatic rightness of papal judgements had become an article of faith, and belief therefore preceded all understanding. The pope had to be accepted as the fons iustitiae, even if God knew that he was nothing of the sort. «Quis custodiet ipsos custodes?» might be asked, but it hardly needed to be answered. Humbert, himself «un pape manqué», appreciated the position better than most. Whilst he allowed that a pope might perhaps (Gratian would omit the «perhaps») be judged to have deviated badly from the faith — the implication was that this was something that happened afterwards — Humbert's real concern was to make the point that during his pontificate what the pope did or did not do had a direct bearing on the chances of salvation for everybody else, because he carries the whole community with him. The soundness of members was in immediate relationship to the soundness of the head, so in the words of Job, where the head is sick, there is no soundness in the rest of the body from the top of the head to the sole of the foot26. If the pope is negligent or lazy, or if he keeps silent when he should speak, he will lead countless multitudes to hell — and will himself be sentenced like Satan to eternal flogging instead of ruling in heaven like a good pope. But what matters is that one should accept papal decisions in the same way that one has to observe the omnipotence of God:

  • 27 Job, xii. 14-15. For Gregory VII’s use of Jer., xlviii. 10 and Prov., xi. 26 to show that a pope w (...)

If he pulls down, no one can build;... if he binds, no one can loose; if he withholds water, all things shall shrivel; if he sends too much, all the world drowns27.

  • 28 B. Tierney, «Infallibility and the Medevial Canonists», Catholic Historical Review, lxi, 1975, p. (...)
  • 29 Or as Humbert put it, the whole body of the faithful earnestly prays for his ever enduring steadfa (...)
  • 30 DA 2, «A nemine papa iudicari potest, etiamsi fidem negaverit»: Ullmann, «Cardinal Humbert», p. 12 (...)

5Even making allowance for the fact that his contemporaries believed that the number of the saved would be very small, Humbert's equanimity in contemplating the damnation of most Christians is remarkable. There was no sense of compassion, no suggestion that the divine mercy might operate to save those who were misled by their obedience, which involved accepting that the pope was right however much he might be thought to be wrong. He always was right for practical purposes, because only he was in contact with the truth, and if he carried you down to hell with him, that was his responsibility, not yours. There was nothing to be done about it, so it was beter not to think about it. Even Huguccio of Pisa, whose views on papal heresy were to prove so influential with conciliar theorists, allowed that a pope who denied introducing a new heresy should enjoy judicial immunity and proofs against him should not be permitted28. This rather grudging admission does not however catch the flavour of Humbert's more positive attitude. For him the proper mode of approach to the pope is one of enthusiats, even if misplaced: «he makes almost the whole world enthusiastic and eager with him» — oracles are to be accepted and believed in, not questioned. Like football teams, they should inspire intense local loyalties, even if they fail to win. The whole point about a guardian of the truth is that he is the only one in contact with the right — he is, you are not — and so the most that anybody else can do is to pray that he is conveying that right to you. Luke, xxii, 32 became one of the most overworked texts in papal use: like Christ, the Christian could only pray that the faith of St. Peter and his heirs would not fail29. But no decisions were to be made: the apostolic see can be judged by nobody, or, as the Dictatus of Avranches succinctly summarised the position, the pope cannot be judged even if he should deny the faith30. Infallibility was not a practical problem.

  • 31 Register, i.53, p. 80, ii.44, p. 180, iv.26, p. 341, iv.28, p. 344, vi.13, p. 416; for this expres (...)

6In this way the early medieval pope as guardian of the faith appeared as both an absolute and a limited ruler. He was absolute in the sense that his authority was to be obeyed, not questioned: there was no one who could ask; at the same time he was, as Gregory VII put it, a debitor iustitiae31: however unenforceable, indeed unknowable, the vicarius Petri was under an obligation to something greater than himself. He could not determine what was right for himself: he could only convey to others what God had already determined. The whole body of right stood behind him for him to keep and express, but he had no freedom of action of his own as regards substance and content. All he could do was to put the divine will into his own words, but it remained the divine will more than the pope's. Just as the Platonic guardian was both philosopher and priest, who had first to learn and understand the sacred and ancestral law which he safeguarded, and then to give it to his people in a form in which they too could grasp it and use it, so Humbert describes the pope as one whose function is to be a mouthpiece of the ancient truths, the holy scriptures and patristic teachings, by transmuting them into sacred canons which will provide a more usable version of the right way of life for Christians to live:

  • 32 This largely follows Ryan, p. 215, but I take sacrae paginae to mean «scriptum» (not laws, as he w (...)

Indeed all look up with such reverence to the summit occupied by the aforesaid apostolic see that they look more readily for a large measure of the teaching of the sacred canons coming out of the mouth of the one presiding in the see, providing in the see, providing the ancient use and custom of the Christian religion more easily than the sacred pages (of scripture) and the traditions handed on by the fathers of the Church. This determines the manner of Christian living32.

  • 33 For Decretist texts on this point see H.G. Walther, Impériales Königtum, Konziliarismus und Volkss (...)
  • 34 Policraticus, iv.2, p. 237. All this fully supports Kern's notion that there was a «good old law» (...)
  • 35 Gregory VII, Dictatus papas, 7, «Quod illi soli licet pro temporis necessitate novas leges condere (...)
  • 36 The point is well made by Placidus of Nonantula, De honore ecclesiae, 70, MGH, Libelli de Lite, ii (...)
  • 37 Decretum, C. 26 q.2 post c.l: for further discussion I. Buisson, Potestas und Caritas: Die papstli (...)
  • 38 Verbum abbreviatimi, 44, (PL., ccv.139). R. Bacon, Moralis philosopha, i.l, éd. Massa, p. 8, said (...)

7Technically therefore the pope was a finder and translator of justice rather than a maker of law, and was accordingly restricted to what he and his predecessors had found to be already there33. All law, as John of Salisbury put it, is a discovery34. The limitation did not prevent the formulation of new laws35: it simply meant that there was more law to be found, to repair holes in the network of righteousness, to deal with areas and items not properly covered and needing expansion, or to meet changing situations which created new needs36. All this could be classified as a process of enabling an imperfect human system to catch up with and match divine justice, and even allowing for the propensity of rulers to introduce changes whilst firmly maintaining that there is no novelty involved, there was no breach of principle — even if, as Gratian would point out, it would make possible a distinction between binding rules of right which could not be changed as opposed to mutable human practices, as for instance some of the features of the Old Testament37. But one was not trying to alter the principles of right itself, and so when introducing new laws the pope was covered by the same immunity and enjoyed the same unquestioned status and entitlement to obedience as before. In the words of Peter the Chanter, he could be asked why he was doing this, but it was purely a request for information about a revelation made available by God to him alone, and one which had to be accepted in the same belief that God would not allow him to err38.

  • 39 Buisson, Potestas und Caritas, p. 54-73, 77-79,108-124; see also A.M. Stickler, «Der Kaiserbegriff (...)
  • 40 «The Roman pontiffs and councils of the Church make new decrees every day or relax others through (...)
  • 41 K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries, Phila (...)
  • 42 Dig., IV. viii.4 XXXVI. i.13,4; used by Innocent III, Decretates, I.vi.20; also the Summa Eleganti (...)

8By the same token the papal right to dispense with the application of the law to a particular case in a special circumstance as a matter of necessity39 was not seriously questioned, despite Abelard's complaint that frequent dispensations had the effect of making lawful what was previously unlawful, and vice versa, so that good and bad became interchangeable40, and contemporary attempts to restrict the power of dispensation to certain matters41. Far more serious was the question of whether oracles could change their minds and contradict what they had already said (as Greek oracles were prone to do). For the papacy that difficulty could be surmounted by invoking the Roman law principle that «par in parem non habet imperium»42, so that total obedience was only required towards a pope in office, in other words during his lifetime, but that it was quite possible for a subsequent pontiff to decide that his predecessor had after all been a notorious heretic. Popes could be guilty of heresy, as Humbert had admitted, but one had to wait until they were dead to find out — and it is probable that his famous qualification that the Church might judge a pope to have been a fide devius was meant to refer to a pope who was already deceased. There were apparent precedents. Honorius I was condemned some forty years after his death by Agatho in 680; there was the macabre case of Formosus, whose body was dug up in 897 so that the corpse could be put on trial by Stephen VI; and during the twelfth century great play was made of the case of Anastasius II who, according to the Liber Pontificalis and Gratian, was struck down by God in 498 because «he acted against the decree of his predecessors and successors» in dealing with the Monophysite heresy. But none of this affected the supremacy and immunity from judgement of a living pope, nor caused real damage to the principle of the Roman Church as the purveyor of a fixed divine iustitia even if the doctrine occasionally seemed to be fraying at the edges.

  • 43 Cf. Bonaventure, De perfectione evangelica, IV.iii.8, éd. Quaracchi, v.196, «Lex enim evangelica s (...)
  • 44 M. Maccarrone, Vicarius Christi, Rome, 1952. For the change of usage in twelfthcentury chronicles (...)
  • 45 See my Problem of Sovereignty, Cambridge, 1963, p. 331f, especially, p. 370.
  • 46 For the history of this Roman legal maxim see Kantorowicz, King's Two Bodies, p. 28.
  • 47 Ulpian had already made the point that to renew (renovare) law was another way of saying that new (...)

9Humbert's analysis was an excellent statement of what had been obtained in past centuries, but in retrospect his statement comes to look more like a dividing line. During the twelfth century the basis of papal power was changing, and the legislative supremacy and self-regulating conception of papal authority changed with it — not as any sudden or dramatic alteration, but as a slow almost imperceptible process which as note complete until the early fourteenth century. The pope now began to appear as a legislator not in the old sense of a «law-bearer»43 or conveyor of right from its source to its recipients, but as a legislator in the modem sense of a sovereign who defines right and wrong by act of will, by self-determination in his who right, a ruler whose decrees contain an automatic repeal of previous enactments contrary to present requirements. Perhaps one might possibly make a case for Gregory VII as the first pope of the new type, since Gregory was unequalled in his insistance that the papacy was the sole source of righteousness. But Gregory deliberately sought to invest his claims with an aura of conservatism, to emphasise that he was only an apostolicus, a vicar of saints, simply an agent of an independently existing righteousness, and to stress that the papal reformatio was nothing new, but essentially a return to neglected previous doctrines and pratices. He did not depict himself as a new Christ, a vicarius Christi, one who was by definition divine right actually existing in human form. This would emerge gradually a century later44, blossoming with Innocent III (although Innocent was in many ways more cautious and conservative than might be expected), and needing Innocent IV's outright assertion that Christ would not have deserted his Church without leaving it with a successor to complete the change45. If one had to explain this, one might point perhaps to the revival of Roman law as the single most potent factor. The Church itself now came to be seen as a Roman law corporation with its own true personality in which righteousness resided and which held the overeignty of the ecclesiastical body — and the pope was persona Ecclesiae, a physical expression of the corpus Christi, who carried iustitia within himself, and who brought the law out, so to speak from within: omnia iura in scrinio pectoris sui46. One obvious indication of the change was to be seen in the nature of canon law itself, no longer just a collection of earlier canonical declarations of right to which special authority was attached, the type of collection which ranged form Gregory VII's small volume of precedents, indexed by the so-called Dictatus papae, to Gratian's massive and majestic compilation of the «old law» of the Church: canon law now became legislation in something like the modem sense of statute law, enclosed in official lawbooks of up to date decrees which replaced the haphazard gatherings of useful past decisions, although the contents did not make the nature of the change immediately apparent. But he acid test was the power to abrogate47, to change the definition of right itself, not merely in the sense of getting rid of what was no longer necessary, but of turning — to quote the stylised phrase — black into white, thereby demonstrating that one sovereign pontiff could not bind another. As Professor Pennington has shown, the first, or at least one of the first, to recognize that the papal claim to embody the will of God, so that his will is the determination of what is right and cannot be questioned, and implied a capability of making good into bad or evil into right, was Laurentius Hispanus. Commenting on Innocent Ill's declaration in Quanto personam, which had been put into the CQmpilatio tertia, that the pope could change things by right of his divine power of dissolution which he possessed because he ruled on earth in place of God and not of a mere man (Romanus pontifex, qui non puri hominis sed veri Dei vicem gerit in terris), Laurentius elaborated the point still further:

  • 48 Ad I. v. 3, sv. puri hominis, citing Juvenal., Satires, vi. xxii. 3. For full details see Penningt (...)

Therefore he is said to have a divine will... and O, how great is the power of the prince because he can even change the nature of things by applying the substance of one thing to another... and he can make iniquity out of righteousness (iustitia) by correcting any canon or law, indeed in those things that he wishes his will is to be taken for right (in his quae vult est pro ratione voluntas)... nor is there anyone in the world who can say to him, Why do you do this?48

  • 49 Pennington, p. 33, 42.
  • 50 «Hanc tamen potestatem tenetur ipse utilitati publicae conformare». For a later example (one among (...)
  • 51 Dig., I. iv. 1, Inst., I. ii. 6. As is well known, some writers argued that the initial word «et» (...)
  • 52 M-T. D'Alverny, «Noms regnat Salomon in diebus malis: Une satire contre Innocent III», Festschrift (...)
  • 53 Monologium, 16 (PL., civili. 165); cf. Saint Bernard, Sermones, Ixxx. 7-8.
  • 54 S. Kutner, «Quelques observations sur l'autorité des collections canoniques dans le droit classiqu (...)
  • 55 Extravagantes Ioannis XXII, xiv. 2, «Quia nonnumquam, quod conjectura profuturum credidit, subsequ (...)

10Similar statements, which quickly made Juvenal’s quotation about will being taken for right into a hackneyed expression, soon followed with Bemardus Parmensis, Vincentius Hispanus, (surprisingly) Johannes Teutonicus, Geofrey of Trani and others. As Pennington points out49, some of the canonists were alarmed by their own temerity, and tried to reduce the force of this by suggesting that it was a power of repeal restricted to certain cases and did not extend to the basic principles of either the faith or ecclesiastical organisation, so that the Church retained its «unwritten ancient constitution» unchanged. Even Laurentius had tried to mitigate the strenght of what he was saying by adding the traditional principle that the pope was bound (tenetur) to will only what was good, in other words to argue that sovereignty was a power for right only50. But it did not need much ambiguity to convert this to a claim that the pope could do anything because his will was law, quod principi placuit legis vigorem habet51, and he was therefore absolute without restriction. Innocent III was to be attacked for trying to be a new Solomon who produced law to suit his own purposes and used it as an instrument of government without regard for its inherent rightness, but it was Innocent II in 1138 who had already established that the pope acted by will because he was the will of God52, and (as Anselm had explained53,) God does not possess justice, which implies that justice is something else besides, but is justice, because whatever God binds or looses becomes bad or good by the fact of him doing so. It would need an Aquinas to put a stop to this by defining the will of god as an eternal law, which in effect meant that God could not change his mind and that therefore there was a great deal his omnipotence could not do. Although the Decretales had formally recognised the principle of abrogation by acknowledging that a law which was made could be unmade, the papacy was immensely circumspect about mutting this into practice. As Stephen Kuttner indicated54, a point which has not really enjoyed the prominence it deserves, the popes who effectively began the practice of abolishing law as opposed to making it were Innocent III, Honorius III and Gregory IX, but the awful consequences for the hierocratic system of allowing right to be dependent on the mutable and unregulated will of a single sovereign were very slow to be appreciated. Gregory VII, by defining Christian faith as obedience to the Roman Church, and Innocent III by making heresy opposition to it, had paved the way, but it was not until 1322 that John XXII flatly asserted the doctrinal flexibility of the papacy on the grounds that the creator of canons could always change them, and so stirred up the hornets' nest of Franciscan indignation that anyone should think that dogma was something that could be altered at and by will55.

  • 56 Politics, i.5 1254b; iii.13 1281a-b; iii.17 1288a; iv.2 1289b. Aeschylus, Prometheus Bound denounc (...)
  • 57 Anticlaudianus, viii, 196-197, tr. J.-J. Sheridan, Toronto, 1973, p. 178.

11The pope who emerged from this process was a rather different being, in theory if not in practice. In simple terms he was no longer an expression of righteousness, but a divine being, righteousness itself personified. In terms of our analogy here he was no longer the philosopher-priest guarding an ancestral law, but more akin to the later Platonic ruler, the oikist, who founded the state and gave it its basic laws of right himself. As has been said, the revival of roman law principles played a crucial role in the transformation. But we might also point to the influence of Aristotelian political thought as the relevant texts became better known during the course of the thirteenth century. Whilst it was Plato who envisaged a ruler who would be absolute but limited within the constraints of his own definition as a keeper of justice, it was Aristotle who had squarely faced the question of what to do when a political community was faced with a God-like prince (as a supporter of Alexander of Macedon, a very real issue for Aristotle himself). Although he expressed his preference amongst human systems for the «polity» with a mixed constitution, Aristotle’s advice was that if a divine ruler existed there was no other logical choice but total submission to him. Subjects cannot share power with a man like Zeus, but should recognise him as king and lord of all, not only most holy as the soul of the body politic, but a living law itself56. In short, between 1100 and 1300 the medieval pope ceased to be a Platonic ruler and became an Aristotelian one, one of unsung and no doubt unwelcome achievements of the «Twelfth-Century Renaissance». For the defenders of lay supremacy the position was very much worse, since they were now faced with an opponent truly sovereign in the modem sense of the word. At the same time however they could benefit even more by adapting the opposing classical tradition that the making of new laws was a hallmark of tyranny. As Alan of Lille had put it, one could always tell who was a tyrant because he makes his own right and enforces it instead of enforcing the right itself57.

Notes

1 Conrad of Megenburg, Œconomica, iii.6, éd. & tr. L. Thorndike, University Life and Records in the Middle Ages, New York, 1944, p. 222.

2 For a further account see S. Kuttner, «Gratian and Plato», Church and Government in the Middle Ages: Essays for C.R. Cheney, Cambridge, 1976, p. 93-118.

3 Wilks, «The Problem of Private Ownership in Patristic Thought», Studia Patristica, vi, Texte und Untersuchungen zur Geschichte der altchristlichen Literatur, lxxxi, 1962, p. 533-542; Thésaurus Ecclesiae, Studies in Church History, xxiv, 1987, p. xv-xlv.

4 J. Le Goff, Medieval Civilization, tr. Oxford, 1988, p. 255f.; The Birth of Purgatory, tr. Chicago-Aldershot, 1984, p. 131, 389 and here further literature. For a good example from 1036 by Gerard, bishop of Cambrai, Gesta, iii.52 = MGH, SS, vii. 485-6, see I.S. Robinson «Gregory VII and the Soldiers of Christ», History, lviii, 1973, p. 189.

5 296e-7b: for the subsequent history of the lex animata theme see the references in E.H. Kantorowicz, The King’s Two Bodies, Princeton, 1957, p. 127f.

6 MGH, Ep., iv, no. 229, p. 373; for Bede see the discussion in J.-M. Wallace-Hadrill, Early Germanic Kingship in England and on the Continent, Oxford, 1971, p. 94-95; the immediate source was probably Boethius, De consolatione, i.4, PL, lxiii. 615-616. The pseudo-Aristotelian work De mundo of c. 50BC, allegedly addressed to Alexander, had defined the emperor as a philosopher-king standing midway between God and his subjects; E. Voegelin, Order and History, iv. 199-200.

7 Otto of Freising, Gesta Friderici, iii. 1, tr. Mierow: New York, 1953, p. 174; Godfrev of Viterbo, MGH, SS, xxii.21f., 103.

8 Policraticus, v.10, éd. Webb, p. 566.

9 Engelbert of Admont, De ortu, progressa et fine imperii Romani, 6, éd. Goldast: Frankfort, 1614 p. 756; Dante, Monarchia, iii.16; cf. Epp.v. 1, vii; and for further texts and discussion see M-L. Colish, The Mirror of Language: A Study in the Medieval Theory of Knowledge, New Haven, London, 1968, p. 273-281; W. Kölmel, Regimen Christianum, Berlin, 1970, p. 504 f.; G. Holmes, Dante, Oxford, 1980, p. 32-39.

10 P.G. Stein, Legal Evolution: The Study of an Idea, Cambridge, 1979.

11 J.-H. Oliver, The Athenian Expounders of the Sacred and Ancestral Law, Baltimore, 1950; H. Lloyd-Jones, The justice of Zeus, Berkeley-Los Angeles, 1971.

12 See R.K. Sprague, Plato's Philosopher-King, Columbia, S. Carolina, 1976, especially p. 31-42, 86, 102-103, 112-113, on the relevance of the Charmides to Plato's description of guardianship (phylakike) as care-taking. The statesman seeks to rule throught others rather than to act in all things himself, although there is a suggestion that is understanding of the work of others makes him omniscient and infallible, 171c-4a.

13 Policraticus. iii.1, p. 233.

14 For the papa ipse Petrus theme see the examples given by Y.M-J. Congar, L'ecclésiologie du haut Moyen Age, Paris, 1968, p. 187-190, 367-370. Thus for Gregory VII it is usually Saint Peter who acts rather than the pope himself, e.g. Register, éd. Caspar, i.7, p. 11, i.8, p. 13, i.10, p. 16, i.13, p. 22, i.21a, p. 35-36, i.22, p. 39, iii.6, p. 252, iii.15, p. 276, iv.28, p. 345, vii,14.a, p. 484, etc.

15 The best short description of Gregory VII and iustitia is still W. Ullmann, The Growth of Papal Government in the Middle Ages, 3rd ed., London, 1970, p. 273-277.

16 G. Schneider, Prophetisches Sacerdotium und Heilsgeschichtlichen Regnum im Dialog 1073-1077: Zur Geschichte Gregors VII. und Heinrichs IV., Munich, 1972.

17 The fragmentary text of Humbert’s De sancta Romana ecclesia is edited by P. Schramm, Kaiser, Rom und Renovatio, Leipzig-Berlin, 1929, i.238-250, and translated by J.-J. Ryan, «Cardinal Humbert De sancta Romana ecclesia: Relies of Roman-Byzantine Relation 1053-1053-1054», Mediaeval Studies, xx, 1958, p. 206-238 at p. 215-216. See also W. Ullmann, «Cardinal Humbert and the Ecclesia Romana», Studi Gregoriani, iv, 1952, p. 111-123 = The Papacy and Political Ideas in the Middle Ages, London, 1976,1.

18 Adrian II, «Prima salus est rectae fidei regulam custodire» - and therefore the pope is conservator and executor of the traditiones handed down by the fathers: Congar, p. 135-136. To oppose the pope is to attack the «immobilem sanctae Romanae ecclesiae petram», Gregory Vu, Register, i.11, p. 18.

19 Cf. Cod. X.xviii.1, «leges humanae sunt per ora principum divinitus promulgatae»; as used by John Vili, MGH, Epp., vii.281, it appears in Gratian, C.16, q.3, c.17. Note also Prov., xvi.10.

20 Macc., v.19. For the importance of physical possession of the sedes beati Petri see Ullmann, «Romanus pontifex indubitanter efficitur sanctus: Dictatus Papae 23 in Retrospect and Prospect», Studi Gregoriani, vi, 1959-61, p. 229-264 at p. 248 = The Church and the Law in the Earlier Middle Ages, London, 1975, XI. Gregory VII, Register, i.3, p. 5, «in locum apostolici regiminis»; i.15, p. 23, «in eo luco positi sumus»; i.19, p. 32, «in fidelitate beati Petri... et ad limina eius... venire».

21 De ordinando pontifice, MGH, Libelli de Lite, i.13: Humbert's authorship of this fragment has been questioned (for details, Ullmann, Growth of Papal Government, p. 263, n.3), but seems safe enough.

22 B. Tierney, Foundations of the Conciliar Theory, Cambridge, 1955; «Pope and Council: Some New Decretist Texts», Mediaeval Studies, xix, 1957, 197-218= Church Law and Constitutional Thought in the Middle Ages, London, 1979, II.

23 Origins of Papal Infallibility, 1150-1350, Leiden, 1972, espec. p. 93-130.

24 H. Zimmermann, Papstabsetzungen des Mittelalters, Graz-Vienna-Cologne, 1968, p. 175-

25 Dictatus papae 19, «Quod a nemine ipse iudicari debeat»; 22, «Quod Romana ecclesia numquam erravit nec imperpetuum scripture testante errabit»; 26, «Quod catholicus non habeatur, qui non concordat Romanae ecclesiae»: Gregory VII, Register, ii.55a, p. 201-208.

26 De sancta Romana ecclesia, quoting Job, ii.7 also Isa., i. 5-6.

27 Job, xii. 14-15. For Gregory VII’s use of Jer., xlviii. 10 and Prov., xi. 26 to show that a pope who was negligent and failed to teach the truth to the people would be cursed by God see the texts cited by Schneider, Prophetisches Sacerdotium, p. 31, 34-35, 44, 120-121, 198.

28 B. Tierney, «Infallibility and the Medevial Canonists», Catholic Historical Review, lxi, 1975, p. 265-279 at 267-268.

29 Or as Humbert put it, the whole body of the faithful earnestly prays for his ever enduring steadfastness. For the subsequent history of the Luke text in Gratian, Innocent III and others see Tierney, «A Scriptural Text in the Decretales and in Saint Thomas: Canonistic Exegesis of Luke 22-32», Studia Gratiana, xx, 1976, p. 363-377 = Church Law and Constitutional Thought, X.

30 DA 2, «A nemine papa iudicari potest, etiamsi fidem negaverit»: Ullmann, «Cardinal Humbert», p. 126.

31 Register, i.53, p. 80, ii.44, p. 180, iv.26, p. 341, iv.28, p. 344, vi.13, p. 416; for this expression, J.-A. Watt, The Theory of Papal Monarchy in the Thirteenth Centuru: The Contribution of the Canonists, New York - London 1968, p. 42, 140. Saint Bernard also makes the point that the pope is a guardian and not an owner of the laws of Saint Peter: J. Quillet, «Saint Bernard et le pouvoir», Mediaevalia Christiana, XIe-XIIIe siècles: Hommage à Raymonde Foreville, éd. C.E. Viola, Paris, 1989, p. 246-259 at p. 252.

32 This largely follows Ryan, p. 215, but I take sacrae paginae to mean «scriptum» (not laws, as he would have it, p. 218). Wido of Osnabruck's well known complaint that Gregory VII created two traditions, the divine and his own, is a good example of how to be half right: MGH, Libelli de Lite, i.469, see K.F. Morrison, Tradition and Authority in the Western Church, 300-1140, Princeton, 1969, p. 292f. In the fifteenth century Fortescue would argue that the king was bound by the customary laws of England because they needed long years of study to understand them, and therefore legislation by royal will was impossible: J.A. Pocock, The Machiavellian Moment, Princeton, 1975, p. 13-19.

33 For Decretist texts on this point see H.G. Walther, Impériales Königtum, Konziliarismus und Volkssouveränität: Studien zu den Grenzen des mittelalterlichen Souveranitatsgedankens, Munich, 1976, p. 189f.

34 Policraticus, iv.2, p. 237. All this fully supports Kern's notion that there was a «good old law» which could only be found, not made, despite recent attempts to declare it a myth: K. Kroeschell, «Rechtsfindung: die mittelalterlichen Grundlagen ciner modernen Vorstellung», Festschrift für H. Heimpel, Gottingen, 1972, in. 498f.; cf. W. Ullmann, Law and Politics in the Middle Ages, London, 1975, p. 30; J.L. Nelson, «On the Limits of the Carolingian Renaissance», SCH, xiv, 1977, p 52-69 at p. 64.

35 Gregory VII, Dictatus papas, 7, «Quod illi soli licet pro temporis necessitate novas leges condere...»; also ii, 67: Morrison, Tradition and Authority, p. 277, and see now further discussion in I.S. Robinson, The Papacy, 1073-1198: Continuity and Innovation, Cambridge, 1990, p. 202-207, 237-238; wich follows Roman law: Novellae VII. proem. 3 and I.XXXV. The distinction between the «old law» of the classical jurists and the «new law» of the emperors was clearly recognised by the third century: P.G. STEIN, Regulae luris, Edinburgh, 1966, p. 114, 121-122.

36 The point is well made by Placidus of Nonantula, De honore ecclesiae, 70, MGH, Libelli de Lite, ii.597 and the Summa Elegantius in iure divino, i.51, 98-100, 112, éd. G. Fransen and S. Kuttner: New York, 1969, p. 15, 33-35, 39.

37 Decretum, C. 26 q.2 post c.l: for further discussion I. Buisson, Potestas und Caritas: Die papstliche Gewalt in Spatmittelalter, Cologne-Graz, 1958, p. 49-50; S. Chodorow, Christian Political Theory and Church Politics in the Mid-Twelfth Century: The Ecclesiology of Gratian's Decretum, Berkeley-Los Angeles-London, 1972, p. 102-103. For Victor II's use of Jer.i.10 to assert the papal right to root out old laws and plant new ones, PL., cxliii.835.

38 Verbum abbreviatimi, 44, (PL., ccv.139). R. Bacon, Moralis philosopha, i.l, éd. Massa, p. 8, said that the pope received special revelation to cover what men could not know by their own efforts, ana so was to be believed without contradiction like a human God.

39 Buisson, Potestas und Caritas, p. 54-73, 77-79,108-124; see also A.M. Stickler, «Der Kaiserbegriff des Bernardus Compostellanus Antiquus», Studia Gratiana, xv, 1972, p. 103-124 at p. 116-117.

40 «The Roman pontiffs and councils of the Church make new decrees every day or relax others through dispensation, by which you think that what was previously lawful was now unlawful and vice versa, as if God had put it into their power to make things, which were previously not so, good or bad by their commands or dispensations...» I am grateful to Dr. J.A. Marenbon of Trinity College, Cambridge for this passage from the Collationes, which raises again the question of the relationship between Abelard's «sic et non» practice and contemporary canonisties.

41 K. Pennington, Pope and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries, Philadelphia, 1984, p. 33, 42.

42 Dig., IV. viii.4 XXXVI. i.13,4; used by Innocent III, Decretates, I.vi.20; also the Summa Elegantius, iii.33, p. 129.

43 Cf. Bonaventure, De perfectione evangelica, IV.iii.8, éd. Quaracchi, v.196, «Lex enim evangelica spritualis est, unde et Christus lator illius legis...».

44 M. Maccarrone, Vicarius Christi, Rome, 1952. For the change of usage in twelfthcentury chronicles see H. Schmidinger, «Der erste Papst in den Chroniken des Mittelaters», Römische Quartalschrift, Iviii, 1963, p. 162-182; and for the influence of the crusades J.S.C. Riley-Smith, «Crusading as an Act of Love», History, Ixv, 1980, p. 177-192.

45 See my Problem of Sovereignty, Cambridge, 1963, p. 331f, especially, p. 370.

46 For the history of this Roman legal maxim see Kantorowicz, King's Two Bodies, p. 28.

47 Ulpian had already made the point that to renew (renovare) law was another way of saying that new law abrogates old law because it is the will of the prince. The principle is to be found in Livy and perhaps the Twelves Table: Stein, Regulae Iuris, p. 19f., 75-76.

48 Ad I. v. 3, sv. puri hominis, citing Juvenal., Satires, vi. xxii. 3. For full details see Pennington, Pope and Bishops, p. 15-36. The principle that black is the logicial opposite of white law later stated by Robert Kilwardby: see I. Thomas, «Maxims in Kilwardby», Dominican Studies, vii, 1954, p. 130.

49 Pennington, p. 33, 42.

50 «Hanc tamen potestatem tenetur ipse utilitati publicae conformare». For a later example (one amongst many), Raymond Rigaud, Quodhbet, v.34, «Dico quod pape debemus in omnibus obedire quae potest iuste praecipere... Quod si iuste sic praecipit, iure divino quantum ad illa est obediendum. Cum enim potesta data sit sibi in aedificationem, non in destructionem...»: J. Leclercq, «Questions des XIIIe et XIVe siècles sur la juridiction de l'Eglise et le pouvoir séculier», Sudia Gratiana, xii, 1967, p. 309-324 at p. 318: cf. Hervaeus Natalis, De iurisdictione, éd. L. Hödl: Munich, 1959, 1, p. 20, 2, p. 21.

51 Dig., I. iv. 1, Inst., I. ii. 6. As is well known, some writers argued that the initial word «et» in this text indicated that this was only a supplementary power enabling the ruler to add to the existing body of law, although Gregory I, who applied the text to god (Moralia in lob, xxi. xiv.32), said that to begin a sentence with et meant that it had a mystical or spiritual meaning (Homiliae in Hiezechichelem, i.11.2: G.R. Evans, The Thought of Gregory the Great, Cambridge, 1986, p. 45,138.

52 M-T. D'Alverny, «Noms regnat Salomon in diebus malis: Une satire contre Innocent III», Festschrift Bernhard Bischoff, ed. J. Autenrieth & F. Brunholzl, Stuttgart, 1971, p. 372-390 at p. 376,383-385, for Innocent II: Jaffe, Regesta, 7908, 372B.

53 Monologium, 16 (PL., civili. 165); cf. Saint Bernard, Sermones, Ixxx. 7-8.

54 S. Kutner, «Quelques observations sur l'autorité des collections canoniques dans le droit classique de l'Eglise», Actes du Congrès de droit canonique, Paris 22-26 Avril 1947, Paris, 1950, p. 305-312 = Medieval Councils, Decretals and Collections of Canon law, London, 1980, i; also J.E. Sayers, Papal Government and England during the Pontificate of Honorius III (1216-1227), Cambridge, 1984, p. 159-160. The general principle that he who creates can abolish is Decretales, v. xli. 1.

55 Extravagantes Ioannis XXII, xiv. 2, «Quia nonnumquam, quod conjectura profuturum credidit, subsequens experientia nocivum ostendit: non debet reprehensibile iudicari, si canonum conditor canones a se vel suis praedecessoribus éditas vel aliqua in eisdem contenta canonibus revocare, modicare vel suspendere studeat, si ea obesse potius viderit, quam prodesse». Cf. Tierney, Origins of Papal Infallibility, p. 173-179. The Parisian Quaestio de potestate papae, 6, éd. L. Hödl, Munich, 1962 as De confessionibus audiendis and alleged to be by John of Paris, p. 42, argued that two papal rulings could contradict cach other but remain valid, because the popes in question were tacking into account what was utilis for the needs of the time: it would therefore be sacrilege to dispute them, unless there was good evidence that such rulings were against God.

56 Politics, i.5 1254b; iii.13 1281a-b; iii.17 1288a; iv.2 1289b. Aeschylus, Prometheus Bound denounces Zeus as a new master of the gods who «holds lawless sway with new-fangled laws».

57 Anticlaudianus, viii, 196-197, tr. J.-J. Sheridan, Toronto, 1973, p. 178.

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