 Hi, I'm Peter Adamson and you're listening to the History of Philosophy podcast, brought to you with the support of the Philosophy Department at King's College London and the LMU in Munich, online at www.historyoffilosophy.net. Today's episode, What Pleases the Prince, the Rule of Law. The most famous 13th century political document was not written by any philosopher. It is, of course, the Magna Carta, forced upon King John by the English barons in the year 1215. Its influence has been far-reaching, its symbolic importance hard to overestimate. To give just one example, the American state of Massachusetts, where I grew up, adopted a seal in 1775 showing a man holding a sword in one hand and a copy of Magna Carta in the other. Though many of its provisions are so dated as to be irrelevant to us today, people still point to its 39th chapter, which guarantees due process of law for all freemen. This is a hint at its philosophical significance, which lies above all in its attempt to constrain the king himself by requiring him to submit to the law. Nowadays, we take it for granted that our leaders are subject to the law, even if we can't take it for granted that they will always follow the law. In the medieval period, though, this was not so obvious. Kings naturally promoted an ideal of absolute sovereignty and saw themselves as the source of the law rather than as being subject to it. Yet, they were rarely in the position to wield unfettered military and political power with no concern for the consent of other political players within their kingdoms. Their supremacy was challenged on battlefields in the drawing up of documents like the Magna Carta and in the writings of intellectuals. As we know from our earlier look at Gratian and other legal theorists, medieval ideas of law were inspired by the Roman tradition. When it came to the question of how law relates to political authority, the medieval's turned to Ulpian's digest of the law code gathered under the Emperor Justinian. There, they could read that what pleases the prince has the force of law, and also that the prince is not bound by the law. These passages seem abundantly clear. A ruler's authority is expressed not just with the sword, but through the authorship of legislation, and as the author of the law, the ruler stands above it. But there are two kinds of people who can be trusted to find surprising interpretations of abundantly clear texts, medieval commentators, and lawyers. So just imagine what was possible for medieval's who wrote legal commentaries. One such author, active in the 13th century, went by the rather splendid name, Acursius. He ingeniously suggested that when the digest says, the prince is not bound by the law, this means simply that the prince has the freedom to revise old laws and make new ones. In his actions though, he is bound by the laws that are currently on the books. This is not to say that legal theorists always sought to constrain the sovereignty of the ruler. Something else we know from our previous discussions is that medieval legal ideas developed within two parallel spheres, church law and secular law. It was in the area of church law that we see the first dramatic moves in the direction of absolute sovereignty. This may seem surprising, but remember that the church had its own power hierarchy, its own laws, and vast material wealth. At the top of that hierarchy, there was a single figure, the pope. Using terms first applied to Roman rulers, the pope was said to be a living law, or the one who holds all laws within his breast. The early 13th century canon lawyer, Laurentius Hispanus, waxed enthusiastic about the pope's right to reconstitute law with his will, the sole source of legal legitimacy. In principle, a bad pope could be put on trial and deposed by other officeholders of the church. Obviously, some remedy would be required if the papacy were held by someone with heretical views, for instance, but in practice the popes were relatively unchallenged to an extent that could only be envied by their secular counterparts. Attitudes towards medieval kings and emperors were shaped not just by the Roman legal tradition, but also by the legacy of Germanic political affairs, where the monarch was sometimes actually appointed by the most powerful lords, and the feudal arrangements that arose in the earlier medieval period. This gave rise to the expectation that a king should consult with his nobles and represent their interests. To some extent, this was a matter of sheer practicality. The king could not wage war, or keep the peace, without the cooperation of the men who could deliver the soldiers, and his coffers would only be full if wealth flowed up the feudal chain. Unpopular kings could find their freedom to rule curtailed, as John found out. There were intellectual justifications at play too. If the king was subject to the law, this was because the law is laid down for the sake of ensuring the common good of the community, and the ruler should always be pursuing that good. The point was put nicely by another 13th century legal author, an Englishman known as Braxton, who wrote, The law makes the king. There is no king, where will rules rather than law. It sounds better in Latin, without lex there is no rex. The underlying idea here is that the king's legitimacy depends in part upon the goodness of his rule. When we think of medieval political affairs, the phrase divine right of kings frequently springs to mind. Indeed, kings did claim that they were selected to rule by God himself, but there is a flip side to this coin. If the earthly king rules at the pleasure of God, then perhaps it is really what pleases the divine king that has the force of law. The idea that the cosmos is providentially governed or ruled by God goes back to antiquity of course. We may detect some survival of this idea in our modern talk of natural laws, which hints at a legislator behind the regularities of the universe. And that may in turn put us in mind of one of the most famous political ideas of the 13th century, the natural law. In a work written jointly by the Parisian thinkers gathered around Alexander of Hales, one of the authors, probably Jean de la Rochelle, actually compares the natural law to the law of nature. A law of nature applies to all created things, to use an anachronistic example this would be something like the law of gravity. By contrast, the natural law is relevant only to rational creatures. This natural law could be seen as a test of political legitimacy. The ruler who governs in accordance with it is a true king, the one who does not is nothing but a despot who deserves to be deposed. But what exactly does it mean to speak of natural law? By far the most famous medieval treatment is that of Thomas Aquinas. Indeed, his name is so indelibly linked to natural law theory that you could be forgiven for thinking he invented it. But he didn't. It has ancient roots and as I mentioned in episode 219, it's already invoked by the 12th century legal writer Gratian. He gave the example of the golden rule, do unto others as you would have them do unto you, as a precept of the natural law, and 13th century thinkers regularly give the same example. Authors like William of Auxerre gave the natural law a central role in ethics. All virtue stems from it because it disposes us to choose what is good. It underlies basic ethical rules, such as that one should not kill or steal, to evident implications of the golden rule. In William, we find a more controversial application of the natural law, one that will become increasingly resonant as debates unfold over the mendicant's vow of poverty. He asks whether the private ownership of property is in accordance with the natural law or not. On the one hand, it would seem not. Humans naturally look to that common or shared good, which is also the goal of the good ruler. On the other hand, if we take seriously the idea that the natural law tells us not to steal, we must conclude that natural law recognizes right of ownership, since you can't steal what doesn't belong to anyone. His solution is that the natural law, just like humanly legislated or positive law, must adapt to circumstance. In a state of innocence, there would indeed be common ownership, but one consequence of sin is the need to allow and defend private ownership. For fallen humans are so greedy and competitive that without this measure, society would collapse into violence. If you cast your mind back to another earlier episode where I talked about early 13th century ethics, you may notice that the natural law seems to have a close connection to what the medieval's called sinderesis. This is our inborn urge to want what is good, comparable to our modern-day notion of moral conscience. Neither this nor the concept of natural law can be found in Aristotle, but here's something else that should never be underestimated, the ability of Albert the Great and Thomas Aquinas to weave un-Aristotelian ideas together with ideas from Aristotle. So in this case, Albert already proposed that sinderesis can be seen as providing not so much an urge for what is good as principles for practical reasoning. This is the background for Aquinas' celebrated treatment of law in his Summa Theologiae. Like Albert, he appeals to the traditional idea of sinderesis and gives it a rather intellectualist spin. It is simply our inborn tendency to accept the precepts of the natural law. For Aquinas, the most fundamental precept of all is simply that one should do good and avoid evil. This is the underlying principle at work whenever we deliberate about practical affairs, whether in our own individual actions, in a family setting, or at the political level. Of course, we face difficult choices and challenges in all these spheres. How far can such a general injunction take us? Suppose you're wondering whether your child is ready to be given an allowance, or how heavily to tax cigarettes, or whether to legalize euthanasia. In such situations, being told to pursue the good and avoid the bad, or for that matter to do unto others as you'd have them do unto you, isn't particularly useful advice. And in fact, even though Aquinas suggests that we reason from the principles of natural law to specific practical decisions, he almost never spells out how that would work in practice. It may therefore be better to think of sinderesis and the natural law as the source of our ability to reason about practical matters and our tendency to go for whatever seems best, rather than as providing a set of rules to follow when we are deliberating. But why does Aquinas describe all this in terms of law? Why not talk of moral conscience instead, as did other 13th century authors? The answer lies with Aquinas' ambitious undertaking to integrate the natural law within a whole legal theory. For him, law is defined as, "...a certain dictate of reason for the common good, made by him who has the care of the community, and promulgated." That's a bit of a mouthful, but each part of the definition seems reasonable enough. Laws have to do with rationality, since they serve as principles and reasons for action. Laws have the goal of securing the good for the whole group or community subject to them. Laws derive from a legislator, the one who oversees that community, and a law must be made known to those subject to it or promulgated. In the case of the natural law, the legislator is God himself, and it is promulgated when its precepts are implanted in each human mind. As the phrase natural law suggests, we have it from our very nature, getting it for free, so to speak. This doesn't mean that people always adhere to the natural law, sadly, because humans do not always follow practical reasoning, as when they are overwhelmed by their irrational desires. So, that's why natural law qualifies as a type of law. But, it is only one of four kinds of law recognized by Aquinas. The supreme law is what he calls eternal law, which is nothing but the principles by which God governs the whole universe. Eternal law touches all things, even if they are inanimate or irrational. Not because things like stones or giraffes consciously try to put God's law into practice, but because they fall within his providential oversight over his creation. The natural law exists only within us as rational beings, as our way of participating in this most general, eternal law. Natural law is thus the impression of the divine light in us. Fundamental though it is for our ability to reason about the good and bad, the natural law is not enough. For one thing, it is merely natural, and cannot suffice to help us find our way to our ultimate end, which is supernatural. For this reason, God also gave us the divine law in the form of revelation. In some cases, this may even seem to trump or overturn the natural law, as when God commanded Abraham to kill his own son, an action that seems to fly in the face of all the dictates of practical reasoning. Then finally, there is the kind of law that normally springs to mind when we think of legal affairs, the laws passed by kings and other legislators. Aquinas calls this human law. Again, we might wonder why it is needed. Can't we just apply our inborn ability to reason, using our tendency to follow the natural law? Unfortunately not. For one thing, human laws are laid down with a view to securing the benefit of a whole community, not just an individual. Again, law secures the common good of that community. Human laws will differ from one community to another, because their circumstances are different. Though every community is working from the same ultimate starting points, they naturally reach different conclusions depending on their situation. If you are ruling a nation of gluttons, you might pass laws against fast food, which would be unnecessary in a community made up of more moderate eaters. Given that all humans have the lamentable tendency to sin, as well as the tendency to seek out and choose the good, every community is going to need some laws that are compulsory. That's part of what makes a law a law, and not just a suggestion for best practice. With all this, Aquinas is doing as Aristotle had done before him, by forging close links between ethics and politics. Political legislation is guided by the same principles that ground ethical deliberation, with human laws being simply a determination of the natural law as applied to the circumstances and needs of a given community. Good human laws aim to bring all members of the community along towards virtue, by preventing them from sinning and, more positively, by offering them enforced training in virtuous behaviour. The reason we outlaw murder isn't simply to prevent people from getting killed, though that is surely part of the point. It's also to ensure that our community is full of people who would not even consider committing murder. Law accomplishes its objectives especially through the threat of punishment, but if all goes well, those who are subject to the law will internalize its values, and cheerfully act in accordance with those values. When you go through life without murdering people, it's hopefully not because you're afraid you'll get caught, but because that's just not how you were brought up. One might wonder how Aquinas can apply this analysis of human law to cases of unjust legislation. For once, the answer is simple, he doesn't. An unjust law is, strictly speaking, no law at all, but simply a form of coercion. Since it lacks a grounding in the natural law, and fails to promote the common good, such a law lacks legitimacy. In one of the more inspiring cases of the perennial relevance of medieval philosophy, Martin Luther King Jr. appealed to this idea in his Letter from a Birmingham Jail. Speaking of segregation laws, he wrote, An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just, any law that degrades human personality is unjust. Of course Aquinas was not trying to incite his readers to civil disobedience. When he considers the question of whether one should ever break the law, he focuses on good laws rather than bad ones, and asks whether it could ever be right to break a good law. Yes, says Aquinas, but only in the case of an emergency. His example is that the gates of a city should not be open during a siege, a rule you might break to let a group of the city's defenders retreat back inside the walls. In less pressing circumstances, one should seek to change the law instead of simply defying it. Furthermore, we should be reluctant to change laws, since that always comes with the cost of undermining custom and stability, even if the intended change is for the good. Just as only just laws are truly laws, so for Aquinas the true ruler is the one who aims at the common good. This is the difference between the true king and a tyrant. At least this is what it says in a treatise on political rule which was addressed to the King of Cyprus and is ascribed to Aquinas, though it is not clear how much of it is from his pen. It does bear the hallmarks of his Aristotelian approach, justifying the state by appealing to the idea that humans are political animals and portraying democracy as a defective kind of government in which the lower class is in charge of the state. This treatise also seems to invoke something like the natural law when it tries to justify the whole concept of monarchy, as you would if you were writing to the King of Cyprus. The author argues that just as there is a single bee that rules each colony, so a single man should rule the state, as the one god governs the universe. There are some problems squaring these remarks with Aquinas' remarks about politics elsewhere. In the Summa Theologiae, he endorses Aristotle's support for a so-called mixed constitution, which he thinks can also be found in the Old Law of the Hebrew Bible. It also bears some resemblance to the limited monarchy often seen in the Middle Ages, which is presumably no coincidence. Under this arrangement, there is indeed a single ruler, but his governance is mediated through other officers, for instance judges. The ruler could be anyone, and he adopts his special role as the representative of all the people, even as his power is shared out among subordinates. Aquinas proclaims that, A government of this kind is shared by all, both because all are eligible to govern and because the rules are chosen by all. While this may sound as if Aquinas wants to constrain what could otherwise be unshackled regal authority, he does say that the prince is subject to the law not because it can compel him, but only in the sense that he should voluntarily follow it. Another difficulty with that passage about the bees is that for all his talk of natural law, Aquinas does not usually make such direct appeals to nature when he is talking about how we should arrange our practical affairs. A notorious exception is his remark that homosexuality is shown to be wrong by the fact that even non-human animals mate with the opposite sex. But normally, Aquinas doesn't seem to think you can simply read off moral precepts from observations about the natural world. This has led to a controversy about how exactly he thinks the natural law works. Is the idea that humans have certain natural and essential functions, from reproduction to contemplation, and that the natural law declares to be good anything that will promote these functions? Or is it simply that reasoning about the good is a natural inborn tendency, and that Aquinas thinks that this establishes the universality and inevitability of such reasoning? Many are opposed to the whole notion of natural law, because it seems to imply that certain actions are good to us because they are natural. This idea may seem sinister, given that it could be used, and indeed has been used, to forbid such things as homosexuality and contraception. It may also seem downright silly. Is it wrong for me to travel by plane since it is unnatural for humans to fly? On the alternative interpretation of Aquinas, none of these problems arise. The natural part of the natural law is just supposed to mean that part of being human is having a tendency to prefer and use reason to pursue the good. It's hard to tell which interpretation is correct, in part because Aquinas is rather sparing in his examples of what does and does not immediately conflict with the natural law. The medievals did not invoke the natural law to solve tricky moral problems, but to explain deeply held and fairly basic attitudes that nearly all of us share. But it's easy to draw controversial conclusions from uncontroversial starting points. Take for instance the topic of warfare. When he was itemizing the precepts of the natural law, the jurist Gracian included on his list the idea that violence should be repelled with force. This looks like an invitation to wage war, at least in self-defense, something most of us and most medievals would find reasonable enough. But we're talking about philosophy in medieval Christendom, and didn't Christ tell us to turn the other cheek? How then could Christian intellectuals give a rationale for the state's use of violence? We'll find out next time, when we'll be seeing Aquinas and other medievals declaring their views on the justice of war. Here on The History of Philosophy Without Any Gaps.