Vous êtes sur la page 1sur 70

The University of Queensland, TC Beirne School of Law Legal Studies Research Paper Series

Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire

Dr Nicholas Aroney

TC Beirne School of Law

Research Paper No. 07-06 2007

This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=890811

Electronic copy available at: http://ssrn.com/abstract=890811

Electronic copy available at: http://ssrn.com/abstract=890811

Law and Philosophy (2007) 26: 161228 DOI 10.1007/s10982-006-0005-9

Springer 2007

NICHOLAS ARONEY*

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION: THOMAS AQUINAS ON CITY, PROVINCE AND EMPIRE
(Accepted 8 February 2006)
I. INTRODUCTION

This article looks closely at the way in which Thomas Aquinas understood the relationship between the various forms of human community. A major focus of the article is with Aquinass theory of law and politics and thus with the specically political categories of city, province and empire, together with the associated concepts of kingdom and nation. But since Aquinass legal and political ideas cannot adequately be understood without appreciating his wider social and ecclesiastical thought, the inquiry is also concerned with what he had to say about the various social forms of community, such as household, clan and village, and with the distinctly ecclesiastical categories of parish, diocese and universal church, as well as the great diversity of religious orders, confraternities, guilds and other associations which were characteristic of late medieval society. Why do we need an article that closely examines Aquinass account of these various forms of human community and their relationships? A number of reasons converge to make such an inquiry both interesting and relevant to contemporary concerns and debates. First, there is the question of subsidiarity, simultaneously a notion of great consequence in the constitutional law of the
* Senior Lecturer in Law, T.C. Beirne School of Law and Fellow, Centre for Public, International and Comparative Law, The University of Queensland. I particularly wish to thank John Finnis, Jay Budziszewski, James Blythe, Charles Rickett and Jim Allan for commenting on earlier versions of this article.

An electronic Electronic copy of copy thisavailable paper is available at: http://ssrn.com/abstract=890811 at: http://ssrn.com/abstract=890811

162

NICHOLAS ARONEY

European Union and a major theme in contemporary Roman Catholic social theory.1 Within the European Union, subsidiarity is oered as a mechanism by which the competences of European institutions are kept in balance with the continuing powers of the Member States.2 However, here the concept is notoriously ambiguous, not least because the relevant provisions dene the principle in dierent ways.3 Is subsidiarity to be understood essentially as a political principle which calls for decisions to be taken as closely as possible to the citizen?4 Alternatively, is it a more narrowly dened legal principle that, where competence is shared as between the Community and the Member States, the Community should take action only where the objectives of the proposed action cannot be suciently achieved by the Member States and better achieved by the Community?5 Or does it boil down simply to a mandated decision-making process involving a whole series of complicated procedural steps and controversial substantive judgments concerning both closeness to the citizen and the comparative eciency of either Community or Member State action?6 Given this ambiguity, as well as the fact that many commentators interpret the evolving constitution of Europe as something of a return to a pre-Westphalian past, Aquinass late medieval account of the relationship between empire, province and city

Andreas Fllesdal, Survey Article: Subsidiarity, Journal of Political Philosophy 6(2) (1998): 190. 2 Neil MacCormick, Democracy, Subsidiarity, and Citizenship in the European Commonwealth, Law and Philosophy 16(4) (1997): 331. 3 inne de Bu Gra rca, The Principle of Subsidiarity and the Court of Justice as an Institutional Actor, Journal of Common Market Studies 36(2) (1998): 217; Derrick Wyatt, Subsidiarity: Is It Too Vague to be Eective As A Legal Principle?, in Kalypso Nicolaidis and Stephen Weatherill (eds.), Whose Europe? National Models and the Constitution of the European Union (European Studies, Oxford University, 2003). 4 Treaty on European Union (Consolidated Version), Preamble. 5 Treaty establishing the European Community (Consolidated Version), Art. 5; Treaty on European Union (Consolidated Version), Preamble, Art. 2. See also Treaty establishing a Constitution for Europe (2004), Art. 9. 6 Protocol on the Application of the Principles of Subsidiarity and Proportionality (1997).

An electronic copy of this paper is available at: http://ssrn.com/abstract=890811

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

163

might not be without its relevance to a post-Westphalian future.7 Within the European Union, the doctrine of subsidiarity is generally understood as an essentially political or legal principle which regulates the relationship between the Community and its Member States. Within Roman Catholic social teaching, however, subsidiarity theory offers an account of the proper relationship between a great variety of forms and expressions of human community in addition to the state, such as families, schools, churches, clubs, corporations and labour organisations.8 The basic idea is that each community should be allowed to make its own distinctive contribution to the common good without improper interference from the governing institutions of other communities, yet at the same time with appropriate help or aid (subsidium) from other institutions where assistance is warranted.9 Notably, the principle of subsidiarity within Roman Catholic thought is generally traced to Aquinas and, before him, to Aristotle.10 A close inquiry into Aquinass discussion of city, province and empire, as well as the many other forms of human community of his time, has the potential, therefore, to shed a great deal of light on the concept of subsidiarity within Catholic social teaching, particularly in terms of its political implications, but always understood within the context of a wider social theory.
Compare Marlene Wind, Sovereignty and European Integration: Towards a Post-Hobbesian Order (London, 2001) and Thomas Hueglin, Early Modern Concepts for a Late Modern World: Althusius on Community and Federalism (Waterloo: Wilfrid Laurier University Press, 1999). 8 John Paul II, Centesimus Annus (May 1, 1991), paras 13, 48. See, in particular, Russell Hittinger, Social Pluralism and Subsidiarity in Catholic Social Doctrine, Annales Theologici 16 (2002): 385; Kenneth Grasso, The Subsidiary State: Society, the State and the Principle of Subsidiarity in Catholic Social Thought, in Jeanne Heernan (ed.), Christianity and Civil Society: Catholic and Neo-Calvinist Perspectives (Lanham: Lexington Books, forthcoming). 9 Leo XIII, Rerum Novarum (May 15, 1891), paras 1214; Pius XI, Quadragesimo Anno (May 15, 1931), paras 7880; Centesimus Annus, para 48. 10 Chantal Millon-Delsol, LEtat Subsidiaire (Paris: Presses Universtaires de France, 1992), chapters 1, 3.
7

An electronic copy of this paper is available at: http://ssrn.com/abstract=890811

164

NICHOLAS ARONEY

A second reason for the contemporary relevance of an inquiry into Aquinass account of city, province and empire has to do with the question of federalism, itself a question of great currency in the debate over the constitutional future of Europe,11 not to mention its continuing importance to the many federal states of the modern world. Notably, however, among scholars who have sought to understand the origin and development of the federal idea, most, if not all, have accorded Aquinas an essentially negative role.12 According to Samuel Beer, for example, Aquinass thought was dominated by the idea of hierarchy, not federalism.13 Aquinas, he says, armed an ontology of inequality in which every individual kind was organised into a hierarchy of being, ranging from the most inclusive and perfect at the apex, down to the least inclusive and most imperfect at the base of the pyramid.14 This entailed, Beer argues, the idea that all parts of the whole ought to be directed to the perfection of the whole, and that within human society it is necessary that a governing power direct the various parts of the society to their
Federalism, long an underlying theme, has recently re-emerged very prominently in the debate over the nature and future of the European Union. See Joschka Fischer, From Confederacy to Federation: Thoughts on the Finality of European Integration, Speech at Humboldt University, ny, and J.H.H. Berlin, 12 May 2000 and the discussion in C. Joerges, Y. Me Weiler (eds.), What Kind of Constitution for What Kind of Polity?: Responses to Joschka Fischer (Florence, 2000). 12 See, e.g., Daniel J. Elazar, Covenant and Commonwealth (New Brunswick: Transaction Publishers, 1996), 35. Elazar considered the principle of subsidiarity to be an attempt to moderate the pronounced hierarchical tendencies of Catholic social theory: see Daniel J. Elazar, The United States and the European Union: Models for Their Epochs in Kalypso Nicolaidis and Robert Howse (eds.), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford University Press, 2001), pp. 42, 45. See also Paul J. Weithman, Complementarity and Equality in the Political Thought of Thomas Aquinas, Theological Studies 59(2) (1998): 277. 13 Samuel Beer, The Rule of the Wise and Holy: Hierarchy in the Thomistic System, Political Theory 14(3) (1986): 391, 394. See, also, Samuel Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge, MA: Belknap Press, 1993), chapter 1. 14 Beer, Rule of the Wise and Holy, 395398.
11

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

165

proper ends.15 Furthermore, Aquinas is said to have believed that only particular individuals will possess the requisite wisdom and virtue necessary to perform this governing function, and thus the proper order of society is one in which the ruled defer to the natural authority of the ruler.16 The result, according to Beer, is, at best, a kind of federalism from the top, in which the rulers authority is subject to certain limitations, including a sphere of autonomy for those subject to his rule yet these limitations, says Beer, are imposed upon the ruler from on high; they are not the result of popular restraint enforced from below.17 Such a top-down federalism, Beer argues, is a far-cry from the bottom-up kind of federalism, founded upon the doctrine of popular sovereignty, which later emerged in the United States, Beers paradigm of federations.18 Whether Beer is correct in this analysis of Aquinas turns on a close investigation into what Aquinas actually had to say about the relationship between city, province and empire, understood in the context of his wider social and ecclesiastical thought. When the legal and political thought of Aquinas is compared to that of the founders of the United States Constitution, for example, the medieval theory is certainly going to appear to be more hierarchical than federal in character. But if Aquinas is compared to his mentor, Aristotle, a rather different picture emerges. Aristotles political theory was almost exclusively concerned with the individual city-state (polis). Aquinas, however, wrote about a vast array of political and other forms of human community hamlets, villages, neighbourhoods, cities, kingdoms and provinces adapting Aristotles political thought to the very dierent social context and intellectual

Beer, Rule of the Wise and Holy, 398402. Beer, Rule of the Wise and Holy, 400, 402406. 17 Beer, Rule of the Wise and Holy, 407411. 18 Beer, Rule of the Wise and Holy, 417418. For a brief but trenchant criticism of Beers arguments, see Brian Tierney, Hierarchy, Consent, and the Western Tradition, Political Theory 15(4) (1987): 646.
16

15

166

NICHOLAS ARONEY

milieu in which Aquinas lived and worked.19 And it was this great plurality of communities that later jurists, such as Johannes Althusius (15571638),20 took for granted when constructing the rst recognisably modern theories of federalism.21 Accordingly, as will be argued, the basic conceptual apparatus for a theory of federalism was at least latent within Aquinass legal and political thought, even if its more natural progeny was the relatively more hierarchical principle of subsidiarity. Recovering what Aquinas had to say about city, province and empire is thus a necessary prerequisite to an accurate understanding of the origin and development of federal ideas, as well as the distinctively Roman Catholic doctrine of subsidiarity. A third reason for the enduring signicance of the present inquiry has to do with the question of the ideal constitution, a topic that Aquinas addressed at some length in terms of the traditional categories of monarchy, aristocracy, democracy and the mixed constitution.22 Aquinass treatment of this issue has raised the question whether he favoured a form of absolute monarchy or preferred a system of limited government.23 An examination of the way in which Aquinas adapted
For a wide-ranging account of the theological, legal, social and philosophical context in which Aquinas worked, see Thomas Gilby, The Political Thought of Thomas Aquinas (Chicago: University of Chicago Press, 1958), chapters IIV. For the argument that Aquinas was considerably motivated by contemporary practical politics, see Jeremy Catto, Ideas and Experience in the Political Thought of Thomas Aquinas, Past and Present 71 (1976): 3. For a contrary view, see John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford University Press, 1998), pp. 13. 20 Johannes Althusius, Politica methodice digesta atque exemplis sacris & profanes illustrata (3rd edn. Herborn, 1614). For a translation, see Frederick Carney (trans.), Politica: An Abridged Translation (Indianapolis: Liberty Fund, 1995). 21 According to Carl Friedrich, it was when Althusius transformed the medieval idea of a feudal hierarchy of successive levels of lords and vassals into a thoroughly covenantal and federal model, that a truly modern, federal theory of politics emerged. See Carl J. Friedrich, Trends of Federalism in Theory and Practice (New York: Praeger, 1968), p. 12. 22 See Part IV below. 23 See text at notes 153154 below.
19

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

167

Aristotelian political philosophy to the many and varied forms of community of his own day has the potential to shed additional light on this question. In this article it will be argued that far from endorsing a system of absolute monarchy, Aquinass political thought supported a particular kind of mixed constitution in which monarchy is tempered by a variety of constitutional constraints founded upon a conception of the body politic as itself constructed out of a plurality of smaller, intermediate corporations and communities of a political, ecclesiastical and social character. In this respect, Aquinass treatment of city, province and empire in other words, his treatment of issues relating the problem of subsidiarity and federalism was foundational to and culminated in his account of the best constitution. In order to explain Aquinass contribution to the development of ideas such as subsidiarity, federalism and limited government, it is rst necessary in this article to show how he went about adapting Aristotelian political philosophy to the theological beliefs and institutional conditions of his own time. I begin in Part II, therefore, with Aquinass understanding of the human good and politics, approached, rst, through his treatment of theology and political science and, second, through his account of the relationship between church and state. In Part III, I next address Aquinass social and political thought, in particular examining his conception of the constituent components of political society, such as families, villages and neighbourhoods, as well as his treatment of the scale upon which political community can be organised, such as cities, provinces, kingdoms and empires. I then turn in Part IV to Aquinass theory of the best constitution, and offer an interpretation that seeks to integrate his discussion of the mixed regime with his account of societal, ecclesiastical and political pluralism. Finally, in Part V, I conclude with a brief comparison between Aquinas and those who followed him, using this comparison as a means of reecting on his signicance for the later development of subsidiarity theory, federalism and limited government.

168

NICHOLAS ARONEY

II. THE HUMAN GOOD AND POLITICS

It is a common-place observation that Aquinas endeavoured to synthesise the deliverances of natural human reason with the propositions of Christian revelation, and that he sought to do this in a manner that admitted the ndings of reason as regards those matters falling within the proper scope of each of its sciences, but which preserved the ultimate unity of the truths known by both reason and faith, and insisted that revealed truths exceed those truths that can be known by reason.24 Thus, against the double truth theory attributed to Averroe s (1126 1198) and the Latin Averroists,25 we nd Aquinas clearly arming what he calls the unity of the truth, namely God, who is one simple Truth.26 As regards our cognitive faculty,
Compare Etienne Gilson, The Elements of Christian Philosophy (New York: Doubleday, 1960), pp. 1122; Frederick Copleston, A History of Philosophy: Volume II: Augustine to Scotus (Garden City, NY: Image Books, 1985), pp. 306, 322323; Jacques Maritain, An Introduction to Philosophy, E.I. Watkin (trans.), (New York: Sheed & Ward, n.d.), pp. 9899; Thomas Gilby, Between Community and Society: A Philosophy and Theology of the State (London: Longmans, Green and Co., 1953), pp. 2233; Finnis, Aquinas, pp. 1014, 294298, 320331. See also Leo XIII, terni Patris (August 4, 1879), para. 18; Paul VI, Lumen Ecclesiae (November 20, 1974), para. 8; John Paul II, Fides et ratio (September 14, 1998), para. 43. On the noetic eects of sin, however, see Russell Hittinger, The First Grace: Rediscovering The Natural Law in a Post-Christian World (Wilmington: ISI Books, 2003), pp. 1011. 25 Among them, Siger of Brabant (c 1240-1281/4), against whose views Aquinas wrote De unitate intellectus contra Averroistas (1270). On Averroe s actual teaching, however, see Richard C. Taylor, Truth Does Not Contradict Truth: Averroe s and the Unity of Truth, Topoi 19 (2000): 3. 26 Summa contra Gentiles (12591265) [ScG], 1.9.1: This truth of things divine I do not call twofold on the part of God, who is one simple Truth, but on the part of our knowledge, as our cognitive faculty has dierent aptitudes for the knowledge of divine things. I have here used Joseph Rickaby (ed.), Of God and His Creatures: An Annotated Translation (with Some Abridgement) of the Summa contra Gentiles of Saint Thomas Aquinas (London: Burns and Oates, 1905) and consulted P. Marc, C. Pera, and P. Caramello (eds.), Liber de Veritate Catholicae Fidei contra Errores Indelium seu Summa contra Gentiles, in the Leonine Edition of Aquinass works: Opera Omnia Sancti Thomae Aquinatis Doctoris Angelici [Opera], t. 23 (TauriniRomae: Marietti, 1961).
24

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

169

however, he also holds that there are two modes in which we know various truths, one of them accessible to human reason, the other transcending it and accessible only by faith.27 Yet because all truth is given to us by God, he maintains, the truth of reason cannot be contrary to the truth of faith.28 There are differences, Aquinas continues, between the objects of human philosophy and the objects of Christian faith.29 Philosophy, he says, considers things as they are in themselves and in their proper nature, whereas Christian faith considers them in relation to God.30 Two consequences follow from this. First, he says, because theology begins with God and understands all things in relation to Him, theology is the highest wisdom and human philosophy is subordinate to it. Second, since human philosophy considers creatures as they are in themselves, there are dierent divisions of philosophy according to the dierent classes of things.31 Within such a scheme, natural reason is capable of discovering the truth about things, so long as it is recalled that such insights concern the knowledge that can be derived from the study of things in themselves, rather the knowledge of things as they are in relation to God.

ScG, 1.3.2, 4: Some things true of God are beyond all the competence of human reason, as that God is Three and One. Other things there are to which even human reason can attain, as the existence and unity of God, which philosophers have proved to a demonstration under the guidance of the light of natural reason. ... There are, therefore, some points of intelligibility in God, accessible to human reason, and other points that altogether transcend the power of human reason. 28 See ScG, 1.7.3, where Aquinas refers to the knowledge of principles naturally known which are put into us by God and compares them to those things divinely revealed in the books of the Old and New Testament. Implicit in Aquinass reasoning is the important distinction between what is rst in the order of being, and what is rst in the order of human cognition. 29 ScG, 2.4.1. 30 Aquinas explains that philosophy begins with creatures in themselves and from them progresses to the knowledge of God, whereas the system of faith begins with God and progresses to the knowledge of creatures in relation to God: ScG, 2.4.2. 31 ScG, 2.4.1, 5.

27

170

NICHOLAS ARONEY

Aquinass various political observations need to be understood in this context.32 Indeed, many of Aquinass most important propositions relating to questions of law, politics and the best constitution, were written in the context of specically theological enquiries and, even in those cases where the basal considerations were fundamentally philosophical in character, Aquinass conclusions were still shaped, sometimes critically, by theological considerations. For example, Aristotle had said that the city-state (polis) is the community in which human beings are enabled to secure their chief end and highest good.33 Notably, Aquinas is able to agree with this, provided that the proposition is limited to its proper domain.34 Political science regards humanity in itself and deals only with specically human ends, Aquinas insists, whereas sacred theology concerns humanitys ultimate end without qualication, and therefore transcends it. Thus, in his Commentary on the Ethics,35 Aquinas points out that political science falls within the division of the practical sciences that is concerned with human things.36 Understood strictly within this context, Aquinas arms with Aristotle that political science considers the ultimate end of human life. But Aquinas is careful to point out that
For translations of Aquinass political and legal writings generally, see A.P. DEntreves (ed.), Thomas Aquinas: Selected Political Writings, translated by J.G. Dawson (Oxford: Blackwell, 1959); R.J. Regan and W.P. Baumgarth (eds.), St. Thomas Aquinas: On Law, Morality and Politics (Indianapolis: Hackett, 1988); R.W. Dyson (ed.), Aquinas: Political Writings (Cambridge: Cambridge University Press, 2002) and Dino Bigongiari (ed.), The Political Ideas of St. Thomas Aquinas: Representative Selections (New York: Hafner, 1953). 33 Politics, I.1, 1252a. I have here used Stephen Everson (ed.), Aristotle: The Politics and The Constitution of Athens (Cambridge: Cambridge University Press, 1996) and consulted W. L. Newman, The Politics of Aristotle (Oxford: Clarendon Press, 1887, rep. 1950). 34 The fact that Aristotle referred specically to the polis, and Aquinas refers interchangeably to the civitas, regnum and provincia, is a matter taken up below. 35 Sententia Libri Ethicorum (12711272) [Eth.]. I have used C.I. Litzinger, Commentary on Aristotles Nicomachean Ethics (Notre Dame: Dumb Ox Books, 1993) and consulted Sententia Libri Ethicorum, in Opera, t. 47 (Romae: Ad Sanctae Sabinae, 1971). 36 Eth., I.2.13 [31].
32

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

171

the ultimate end of the whole universe is considered in theology, which is the most important without qualication.37 Absolutely speaking, says Aquinas, our highest good is in God.38 Aquinass treatment of church and state parallels his treatment of theology and philosophy. In a number of places, including a difcult text in the Commentary on the Sentences of Peter Lombard,39 Aquinas distinguishes between spiritual and temporal authority, arming that in those matters which aect the salvation of the soul, spiritual power is to be obeyed to a greater extent than the temporal (ideo in his magis est obediendum potestati spirituali quam saeculari), whereas in those matters which concern the civil welfare (bonum civile), the temporal should be obeyed more than the spiritual.40
Eth., I.2.13 [31]. See, e.g., ScG, 3.17, and compare Edgar Scully, The Place of the State in Society According to Aquinas, The Thomist 45 (1981): 407, 415. On the status of religion and philosophy in Aristotle, compare Robert Bartlett, Aristotles Science of the Best Regime, American Political Science Review 88(1) (1994): 143 and Mary Nichols, Aristotles Science of the Best Regime, American Political Science Review 89(1) (1995): 152. 39 Scriptum super Sententiis (12531257) [Sent.]. I have used the translation in Michael Molloy, Civil Authority in Medieval Philosophy: Lombard, Aquinas and Bonaventura (Lanham: University Press of America, 1985), and consulted Commentum in quartum librum Sententiarum magistri Petri Lombardi, in Opera, t. 7/2 (Parmae: Typis Petri Fiaccadori, 1858). 40 Sent., II.44 ex. ad 4. Curiously, Aquinas adds that this distinction does not apply where the spiritual and temporal power are identied in one person as in the Pope, whose power is supreme in matters both temporal and spiritual. A possible interpretation is that Aquinas has in mind those territories in central Italy where the Pope was both supreme ponti and temporal lord as a matter of positive law. However, Aquinas specically relates the power of the Pope to the dispensation of Jesus Christ who is both priest and king: a priest forever according to the order of Melchisedech and King of kings in Lord of lords. Compare I. T. Eschmann, St. Thomas Aquinas on the Two Powers, Mediaeval Studies 20 (1958): 107; Leonard Boyle, The De Regno and the Two Powers in J. Reginald ODonnell (ed.), Essays in Honour of Anton Charles Pegis (Toronto: Pontical Institute of Mediaeval Studies, 1974), pp. 237247; Brian Tierney, Aristotle, Aquinas, and the Ideal Constitution, Proceedings of the PMR Conference 4 (1979): 1; Finnis, Aquinas, 324.
38 37

172

NICHOLAS ARONEY

Moreover, Aquinas also seems to suggest that temporal power is limited to matters of civil welfare. Thus, in the Summa Theologiae,41 he arms that the goal of human law is the temporal tranquillity of the state, which is to be achieved through the punishment of external acts (exteriores actus) to the extent that they may disturb the peace of the state (pacicum statum civitatis) whereas the purpose of divine law is to lead human beings to the end of eternal happiness and is thus concerned with both internal as well as external acts.42 Moreover, in De Regno,43 Aquinas appears to go further than this. He suggests that a king ought to promote the good life amongst his people in a manner that is consistent with the pursuit of heavenly blessedness (caelestem beatitudinem), thus insisting upon the performance of all that leads thereto, and forbidding, as far as is possible, whatever is inconsistent with this end.44

Summa Theologiae (12651268, 12711273) [ST ]. I have relied principally on the translation of the Fathers of the English Dominican Province (London: Burns & Oates, 19471948) and the Blackfriars translation (London: Eyre & Spottiswoode, 19641976), and have consulted Summae Theologiae, in Opera, t. 412 (Romae: Ex Typographia Polyglotta SC de Propaganda Fide, 18881906). 42 ST, I-II, 98.1. Temporal and spiritual jurisdiction is also discussed, e.g., in ST, I-II, 105.1, 108.2; II-II, 10.9, 42.1, 60.6, 99.4, 147.3, 186.3. See, generally, Finnis, Aquinas, chapter 7. 43 De Regno ad regem Cypri (c. 1265) [De Regno]. I have used James Blythe (trans.), On the Government of Rulers: De Regimine Principum: Ptolemy of Lucca With Portions Attributed to Thomas Aquinas (Philadelphia: University of Pennsylvania Press, 1997) and consulted Gerald Phelan and I. Th. Eschmann (trans.), On Kingship, to the King of Cyprus, (Toronto: Pontical Institute of Mediaeval Studies, 1949) as well as the Latin edition in Opuscula philosophica (Spiazzi, ed.) (2nd edn. Taurini-Romae: Marietti, 1954). On the problems of authorship, structure and text, see the Introductions by Blythe and Eschmann, as well as the references in Thomas Osborne, Dominium Regale et Politicum: Sir John Fortescues Response to the Problem of Tyranny as presented by Thomas Aquinas and Ptolemy of Lucca Mediaeval Studies 62 (2000): 161, 163, note 9. 44 De Regno, I.16.2 [115].

41

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

173

However these texts are to be interpreted,45 Aquinas certainly could not say that the state secures humanitys ultimate end in an unqualied sense.46 Thus while he could arm with Aristotle that the state is a perfect community in comparison with the communities of which it is composed,47 he had also to arm the nature, function and jurisdiction of the church itself a public association48 and, it seems, a perfect community.49 Aquinass primary concern with theological and philosophical questions means that he does not elaborate the precise scope of ecclesiastical jurisdiction in juridical terms but it is clear that the church has spiritual jurisdiction with which the state cannot lawfully interfere. Aristotle had also said that the city-state pursues a goal that encompasses the lesser and narrower goals of those subordinate human communities of which it is composed.50 Again, Aquinas agrees, but he interprets the proposition as an assertion about
Compare John Finnis, Public Good: The Specically Political Common Good in Aquinas in Robert George (ed.), Natural Law and Moral Inquiry: Ethics, Metaphysics, and Politics in the Work of Germain Grisez (Washington, D.C.: Georgetown University Press, 1998); Finnis, Aquinas, chapter 7; A. S. McGrade, What Aquinas should have said? Finniss Reconstruction of Social and Political Thomism, American Journal of Jurisprudence 44 (1999): 125 and Lawrence Dewan, St. Thomas, John Finnis, and the Political Common Good, The Thomist 64 (2000): 337. 46 Compare Aristotles conception of the priesthood as merely one among the many oces needed in a political community: Politics, Bk. IV, 1299a319, 1322b18-29; Bk. VII, 1329a27-34. See James Schall, The Uniqueness of the Political Philosophy of Thomas Aquinas, Perspectives in Political Science 26 (1997): 85. 47 See text at notes 8486 below. 48 Contra impugnantes Dei cultum et Religionem, in Opera, t. 41 (Romae: Ad Sanctae Sabinae, 1970), [Impugn.], II.2, ad 9. I have here used John Proctor, An Apology for the Religious Orders (London: Sands & Co, 1902), I.3, p. 94. 49 See Finnis, Aquinas, 226, note 31, who points out that the church, like the state, is a community whose good exceeds the good of families and individuals. See, e.g., ST, II-II, 31.3 ad 3 (the common good of the church or the state [communis utilitas Ecclesiae vel reipublicae] may override the good of a family); 43.8 (the goods of the church and the state require special treatment compared to those of individuals). But compare McGrade, What Aquinas should have said, 128. 50 Politics, I.1, 1252a30-31.
45

174

NICHOLAS ARONEY

the order of nature and about human things considered in themselves. Thus, in the Prologue to the Commentary on the Politics,51 Aquinas observes that nature proceeds from the simple to the complex (ex simplicibus ad composita), so that that which is most complex is perfect and whole and constitutes the end of the other things.52 The same is the case, he then points out, in the ordering of human relationships within society. Human beings are organised into societies of various kinds. [A]mong these societies (communitates), there are various degrees and orders (gradus et ordines) and the highest of these is the civil community (ultima est communitas civitatis).53 As a consequence, Aquinas can arm with Aristotle that political science is architectonic among the practical sciences, for it alone is concerned with the highest and perfect good in human aairs (ultimum et perfectum bonum in rebus humanis).54 The propositions are clearly Aristotelian, but the qualication in human aairs has a special signicance for Aquinas, because it leaves room for the supervening role of sacred theology.55 Theologically speaking, Aquinas clearly afrms that all sovereignty (praelatio) comes from God,56 but he is careful to
Sententia libri Politicorum (12691272) [Pol.]. I have here used Ralph Lerner and Muhsin Mahdi (eds.), Medieval Political Philosophy: A Source Book (Ithaca: Cornell University Press, New York, 1963), pp. 298334 and consulted Sententia libri Politicorum, in Opera, t. 48 (Romae: Ad Sanctae Sabinae, 1971). On Aquinass authorship of Books I, II and (part of) III of the Commentary, see Conor Martin, The Vulgate Text of Aquinass Commentary on Aristotles Politics, Dominican Studies 5 (1952): 35. 52 Pol., pro. 3. 53 Pol., pro. 4. 54 Pol., pro. 7. See likewise ST, II-II, 47.11; Eth., I.2.711 [2529], VI.7.13 [11951197], X.16.2 [2165]. On the architectonic arts generally, see ScG, I.1.2; Sententia super Physicam [Phys.], II.4.8 [173]; Sententia super Metaphysicam [Meta.], I.1.25 [25], I.2.15 [50], V.1.10 [758]. I have used Richard J. Blackwell, Richard J. Spath and W. Edmund Thirlkel (trans.), Commentary on Aristotles Physics by St. Thomas Aquinas (New Haven: Yale University Press, 1963) and John P. Rowan (trans.), Commentary on the Metaphysics of Aristotle (Chicago: Regnery, 1961). 55 See Eth., I.2.13 [31], discussed in the text at notes 3438 above. Compare Gilby, Political Thought of Thomas Aquinas, 229230. 56 See Sent., II, 44.1.2, s.c.
51

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

175

distinguish between the origin (principium), mode (modum) and use (usum) of sovereignty. The origin or use of sovereignty may be either good or bad, he says, but the mode of sovereignty is good in all cases, for the mode of sovereignty consists in a proper order of ruler and subject, and it is in this latter respect alone that sovereignty can be said to be from God simpliciter.57 Aquinas can therefore arm that Christians are obliged to obey the secular power (potestatibus saecularibus), citing the famous injunction of St. Paul, he who resists authority, resists the ordinance of God (qui potestati resistit, Dei ordinationi resistit).58 But Aquinas draws a careful distinction between the sovereignty that comes from God and that which does not. There is no obligation to obey sovereignty that is defective in its origin or use, he argues, particularly if sovereignty has been usurped, as through violence, simony or some other illicit method of acquisition, or where a ruler commands things to be done which are contrary to virtue or ultra vires his legal authority. Not only in such cases is there no obligation to obey, but there may in fact be an obligation to disobey and a right to cast o tyrannical rule.59
III. SOCIAL AND JURISDICTIONAL DIVERSITY

Aquinass theological adaptation of Aristotles political philosophy extended to his treatment of the various forms of human community. Aristotle considered the city-state to be a composition of households and villages.60 The latter, he said,
Sent., II, 44.1.2, co. Sent., II, 44.2.2, s.c., citing Romans 13:2. 59 Sent., II, 44.2.2, co. and ad 4, 5. For a further discussion of resistance to tyranny, see the text at notes 177, 194195 below. For an interpretation which emphasises the development in Aquinass thought on these questions, see Gilby, Political Thought of Thomas Aquinas, 90106, 146158, but compare Finnis, Aquinas, 287291. See, further, ST, II-II, 42.2, 66.8 ad 3, 69.4, 104.6 ad 3; Raphael Cai (ed.), S. Thomae Aquinatis Super Epistolas S. Pauli Lectura, t. 1: Super Epistolam ad Romanos, (8th edn. Taurini-Romae: Marietti, 1953), 13.1. 60 Politics, I.1-2, 1252a18-22, 1252b10-18, 28-31. As Aristotle later put it, the polis is a community of households and clans, and a union of clans and villages: Politics, III.9, 1280b34-5, 1280b40.
58 57

176

NICHOLAS ARONEY

are formed to secure the bare necessities of life, whereas the city-state, being self-sucient, is concerned with securing the good life.61 The polis is therefore prior to families and villages in nature or essence, just as the whole is prior to the part.62 For, as Aristotle insisted, humanity (anthropos) is by nature a "on), an animal whose end (telos) is political animal (politikon zo fullled only in the polis.63 Subject to the qualication that we are here concerned with human affairs and with the order of nature,64 Aquinas again agrees with the general thrust of these propositions. But there are important dierences in exposition and detail.65 In his Commentary on the Ethics, Aquinas emphasises that human communities such as families and political societies are wholes that possess not an absolute unity, but rather a unity of order.66 This means that political communities consist of parts that in some respects have an operation independent of the whole community, while in other respects participate in the operations of the whole.67 Notably, the Aristotelian text upon which Aquinas comments here makes no explicit mention of the question of the relationship of the whole to its parts.68 Yet Aquinas considers it
Politics, I.2, 1252b12-13, 1617, 2831. Politics, I.2, 1253a.1829. 63 Politics, I.2, 1253a2-3; III.6, 1278b19-20. 64 Thus in Eth., I.9.10-11 [112113], Aquinas says that Aristotles treatment of mans natural sociability must be understood within limits that Aristotles discussion only pertains to happiness as it is attainable in this life, for happiness in a future life is entirely beyond the investigation of reason. 65 Compare Ernest Fortin, St. Thomas Aquinas, in Leo Strauss and Joseph Cropsey (eds.), History of Political Philosophy (3rd edn. University of Chicago Press, 1987). 66 See, likewise, Gilby, Political Thought of Thomas Aquinas, 251256; and compare Fortin, St. Thomas Aquinas, 258; Eschmann, St. Thomas and the Decretal of Innocent IV, 2728, 4042; Eschmann, Thomistic Social Philosophy and the Theology of Original Sin, Medieval Studies 9 (1947): 19, 2934. 67 Eth., I.1.5 [5]. See the discussion in Finnis, Aquinas, 2425. 68 Ethics, I.1, 1094a1-18. It should be noted, however, that Aristotle begins the Politics with an analysis of the city-state understood as a whole which is a compound of parts: Politics, I.1, 1252a17-23.
62 61

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

177

necessary to insist that, while a political community is a composition of households, this does not mean that the political community is an absolute unity in which the household has no powers of independent operation. While such a conclusion is generally consistent with Aristotles own view,69 Aquinass emphasis on the idea that the state is a unity of order lays the foundation for two signicant ways in which he departs from Aristotle. First, rather than follow Aristotle by always referring to human beings simply as a political animals, Aquinas usually prefers the description political and social70 or simply social.71 When, in the Commentary on the Politics, he is expositing Aristotles views, it is true that Aquinas generally adopts the Aristotelian political animal (animal politicum, or its Roman Law equivalent, the animal civile).72 Outside of the Commentary on the Politics, however, Aquinas generally prefers simply to say that we are naturally social or political and social animals.73 He uses these expressions, for example, even when in the Summa Theologiae he is specically citing
The idea that households have operations that are independent of the state is armed by Aristotle. See Politics, I.2, 1252b15-16, 27-30, 1253a1518; II.2, 1261b6-15. 70 See, e.g., ST, I-II, 72.4; Commentarium in Libros Perihermeneias (1270 1271), [Peri.], I.2.2 [2]. Also social and political in De Regno, I.1.3 [4] and political or social in ScG, III.85.11. I have here used Jean T. Oesterle (trans.), Aristotle on Interpretation: Commentary by St. Thomas and Cajetan (Milwaukee, Wisconsin: Marquette University Press, 1962). 71 See, e.g., ST, I, 96.4; III, 61.5, 95.4; II-II, 109.3, 114.2, 129.6, 188.8; III, 65.1; ScG, III.117.4, 128.1, 129.5, 131.4, 147.2; Eth., I.1.4 [4]), VII.6.7 [1391]; De Regno, I.13.2 [94]. 72 Pol., I.1.24, 26, 28 [32, 34, 36]; III.5 [387]). See also Eth., I.9.10 [112], VIII.12 [17191720], IX.10.7 [1891] (note: the translation in Litzinger at [1891] incorrectly gives social); Quaestiones Disputatae de Veritate (1256 1259) [De Veritate], 12.3 arg. 11; Expositio super librum Boethii De Trinitate (12571259), II.3.1 s.c. 3. For the latter works, I have used Robert W. Mulligan, S. J., St. Thomas Aquinas: Truth (Chicago: Henry Regnery Company, 1952) and Armand Maurer (trans.), St. Thomas Aquinas: Faith, Reason and Theology: Questions IIV of his Commentary on the De Trinitate of Boethius (Toronto, Ontario: Pontical Institute of Mediaeval Studies, 1987). 73 See the references at notes 7071 above.
69

178

NICHOLAS ARONEY

Aristotles Politics on the point.74 And when Aquinas wants to argue (against Augustine) that even in the state of innocence a kind of dominion (dominium) would have existed, he relies solely on the proposition that man is by nature a social animal (homo naturaliter est animal sociale).75 Indeed, Aquinas takes the point signicantly further in the Commentary on the Politics, asserting that human nature is not only political or civil, but also domestic (homo est naturaliter animal domesticum et civile),76 thus assimilating human nature to both the political community and the family. Compared to Aristotle, therefore, Aquinas seems to place relatively greater emphasis on the

E.g., ST, I-II, 72.4 (political and social animal); I-II, 95.4, II-II, 188.8 (social animal). 75 ST, I 96.4. Aquinass argument is that human beings are naturally social, so that even before the fall they would have lived in society, although they would not have been subject to political coercion. Aquinass tendency to refer to the social nature of human beings may possibly reect his endeavour to synthesise the Augustinian account of the origin of human dominion in original sin with the Aristotelian idea that politics is natural to humanity. See, however, Sent., II, 44.1.3, where Aquinas distinguishes two modes of sovereignty (duplex est praelationis modus), one for guidance (ad regimen ordinates), the other for domination (ad dominandum). The former, he says, would have existed in the state of innocence, but the not the latter. For interpretations, compare R. A. Markus, Two Conceptions of Political Authority: Augustine, De Civitate Dei, XIX.1415, and Some ThirteenthCentury Interpretations, Journal of Theological Studies, New Series 16 (1965): 68 and Paul J. Weithman, Augustine and Aquinas on Original Sin and the Function of Political Authority, Journal of the History of Philosophy 30(3) (1992): 353. 76 Pol., I.1.29 [37]. See also Eth., VIII.12.18 (17191720), where the conjugal (conjugale) nature of human beings is said to be more fundamental than our political nature. It is true that Aristotle likewise compares the household to the polis. Both are forms of community (koinonia), he says, and both are natural (Politics, Bk. I.1-2). Aristotle also says that human beings are naturally inclined to form couples even more than to form cities, inasmuch as the household is earlier and more necessary than the city: Nicomachean Ethics, VIII.12, 1162a17-19. However, Aristotle never actually denes humankind specically as a domestic animal; human nature, according to him, is denitively political.

74

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

179

various non-political forms of human association and community, such as the social and the domestic.77 A second important difference of emphasis between Aquinas and Aristotle concerns the way in which Aquinas treats the Aristotelian analysis of the household, the village and the city. Aristotle understood the polis to be uniquely self-sucient compared to the family and the village.78 Now it is true that Aquinas follows Aristotle in regarding self-suciency to be an essential characteristic of the city-state (civitas), a characteristic which distinguishes it from a mere household (domus, familia)

For an analysis of Aquinass conception of the political and social animal, see Scully, The Place of the State in Society According to Aquinas. Compare Walter Ullmanns emphasis on the political aspect of Aquinass thought (A History of Political Thought, 175) with Hannah Arendts emphasis on the social (The Human Condition (Chicago: University of Chicago Press, 1958), chapters 410). For a critique of Ullmanns interpretation of Aquinas, see Francis Oakley, Celestial Hierarchies Revisited: Walter Ullmanns Vision of Medieval Politics, Past and Present 60 (1973): 3, 3244. For a critique of Arendts interpretation of Aristotle (with implications for her interpretation of Aquinas), see Stephen Salkever, Finding the Mean (Princeton: Princeton University Press, 1990), chapter 4. Gilby, Political Thought of Thomas Aquinas, 188189, contrasts Aquinass respect for social groups with the well nigh all-inclusive nature of Aristotles polis, but suggests, at 214, that Aquinass respect for the free association of social groups was Aristotelian in inspiration. Scully, The Place of the State in Society According to Aquinas, underscores the interdependence of the social and the political. Finnis, Aquinas, chapter VII, limits the political to the provision of a specically political common good, public and limited, strictly supplemental to the distinctive contribution to the common good provided by other social groups, such as families and private associations. Against this, Dewan, St. Thomas, John Finnis, and the Political Common Good, 339, 357361, argues for the primacy of the political. My point, simply, is that Aquinas placed greater emphasis on society than did Aristotle, as suggested by his repeated references to the social nature of human beings. 78 Politics, I.1, 1252b28-30.

77

180

NICHOLAS ARONEY

or neighbourhood (vicus).79 Thus, particularly in the Commentary on the Politics, Aquinas repeats the Aristotelian analysis relatively closely, discussing the individual, the household and the city, and distinguishing sharply between them.80 However, in other works the distinctions are less sharply drawn Aquinas assesses the self-suciency of the various forms of human community in much more relative terms and he ventures beyond the city, to take in the kingdom (regnum), the province (provincia) and, by implication, the Empire (imperium).81 He also uses Latin words that possess connotations distinct from those of the Greek terms used by Aristotle, in this way also incorporating additional categories of human community into the analysis,82 expanding it, indeed, to incorporate the entire universe (universalis).83 There is benet in examining each of these texts in turn. In the Commentary on the Politics, for example, Aquinas repeats Aristotles argument that the city-state (polis, civitas) is higher than the other communities of which it is composed, just as the whole is greater than its parts.84 He also canvasses Aristotles criticisms of the view that the household and city
De Regno, I.2.4 [14]. William of Moerbekes translation of the Politics, which Aquinas uses, translated Aristotles polis (city-state) as civitas, oikia (household) as domus or familias, and kome (village) as vicus. See Franciscus Susemihl (ed.), Politicorum libri octo cum vetusta translatione guilelmi de moerbeke (Leipzig, 1872). For the translation of the Ethics by Robert Grosseteste, as revised by an anonymous redactor, probably William of Moerbeke, see Carolus Zell (ed.), Ethicorum nichomacheorum libri decem, 2 vols (Heidelberg: Mohr and Winter, 1820). 80 Pol., I.1.3 [11], I.1.79 [1517], I.1.2325 [3133], I.1.3032 [3840]; ST, I-II, 90.3 ad 3, II-II, 47.11, 50.1. 81 De Regno, I.2.4 [14]. 82 See Finnis, Aquinas, 52, note f. For a list of medieval (and Thomistic) terms for various kinds of community, see I. Th. Eschmann, St. Thomas and the Decretal of Innocent IV Romana Ecclesia: Ceterum, Medieval Studies 8 (1946): 1, 9. They include: universitas, communitas, societas, consociatio, collegium, corpus, congregatio, collectio, multitudo, respublica, regnum, gens, populus, civitas, villa, vicus, burgum, castrum, castellum, familia, ecclesia, capitulum and monasterium. 83 ST, I-II, 91.1, 21.4, 100.5; ScG, I.42, 7071, 78, 8586, 93, 102, II.39, 42, III.64, 98. 84 Pol., I.1.3 [11].
79

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

181

dier only in respect of the scale upon which they operate and in expositing Aristotles arguments the criticisms seem to be made even more emphatically than Aristotle did himself.85 Aquinas likewise faithfully recounts Aristotles claim that the city exists for the good life, that it is the end of the smaller communities of which it is composed and that it is therefore the best and prior according to nature.86 However, Aquinass recognition that the pursuit of the good in an unqualied sense is the domain of faith and of the Church must be recalled at this point. Aquinas can thus agree with Aristotle as to the superiority of the city-state, but this is subject to the important qualication that he is here concerned with human matters, understood from the point of view of natural reason. The city seeks that which is highest among all human goods, but it does not seek that which is highest in an unqualied sense.
Aquinas repeatedly refers to the falsity of the equation of household and city, comparing this false view with the true relationship of the household and the city: Pol., I.1.79 [1517]. However, see Quaestiones de quodlibet, II, 5.1 res., where Aquinas compares the authority of a father over a family and a king over a realm: Since obedience is due a superior, the duty of obedience is extended as far as his authority. Now a father of the esh rst has authority over a child with regard to domestic life, for the head of the family is related to the home as a king to a realm; hence just as the kings subjects are bound to obey him in those matters which pertain to the government of the realm, so are children and other domestic members bound to obey the head of the family in those matters which pertain to the management of the home. I have here used Sandra Edwards (trans.), St. Thomas Aquinas: Quodlibetal Questions 1 and 2 (Toronto: Pontical Institute of Mediaeval Studies, 1983) and consulted Quaestiones quodlibetales (Spiazzi ed.) (9th edn. Taurino: Marietti, 1956). 86 Pol., I.1.235, 3032 [313, 3840]. Moreover, when expositing Aristotles views relating to the superiority of the polis over the household, Aquinas does not hesitate to repeat the Aristotelian dictum that it is in politics that one must determine the instruction of children and women. See Pol., I:11.6. However, also to be considered is the discussion in Contra impugnantes, II.2, ad 10 (Proctor, Apology, I.3, p. 94), where Aquinas afrms that education is a responsibility of the republic, but adds that for this reason within the church education must be subject to the authority of the Apostolic See. Compare, also, Quaestiones de quodlibetes, II, 5.1 res., arming the authority of a father in respect of the moral education (morum disciplinam) of his children.
85

182

NICHOLAS ARONEY

A similar perspective is to be found in the Summa Theologiae. In Quaestio 90.3 of the Treatise on Law,87 Aquinas is particularly concerned to establish the proposition that only a ruler or ruling body (princeps civitatis), as governor of a political community (civitatis gubernator), is able to make law (factiva legis). He therefore has to respond to the objection that a father (paterfamilias), insofar as he governs his family (gubernat aliquam familiam), has the power to make law in the full and proper sense of the word (lex proprie). Aquinas does so by adopting Aristotles dictum that:
As one man (homo) is part of the household (domus), so a household is part of the state (civitas), and the state is a perfect community (communitas perfecta).88

As a perfect community, the civitas is here sharply distinguished from the individual and the household. Such a distinction supports Aquinass conclusion that while the governor of a family may make certain rules and regulations (praecepta vel statuta), these do not have the nature of law properly understood (non tamen quae proprie habeant rationem legis). Only the ruler of a perfect community has the capacity to make law in the fullest sense of the wordand it is the civitas that is a perfect community, not the family or household. Similarly, in the Treatise on Prudence and Justice,89 Aquinas distinguishes between (personal) prudence, domestic prudence and political prudence, and describes the latter type as being the most perfect .90 The perfection of political prudence is due to the fact that it concerns the government of that perfect community which is the city or the kingdom (communitatem

ST, I-II, 90114. ST, I-II, 90.3 ad 3. The translation of civitas as state (or political community) seems to be warranted by the context, although in other contexts it is better translated city in order to distinguish it from the province (provincia) or kingdom (regnum). See the text at notes 144152 below. 89 ST, II-II, 47122. 90 ST, II-II, 47.11; 50.1.
88

87

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

183

perfectam civitatis vel regni), which by its very nature calls for the perfect type of rule (perfecta ratio regiminis).91 Aquinas thus says that a government is the more perfect according as it is more universal, extends to more matters, and attains a more ultimate end.92 He therefore treats cities and kingdoms on the same level, but he also uses words that suggest that it might, after all, be a question of degree: the more universal its scope, the more perfect the community. There seems to be a hint here of the idea that a kingdom (or province) could be relatively more self-sucient (and thus more perfect or more complete) than a city. The suggestion is taken up in De Regno. Here Aquinas very explicitly describes the self-suciency of the various forms and degrees of human society (multitudinis societas) in progressive and more extensive terms.93 Whereas an isolated individual (homini singulariter), he says, is not self-sucient, a solitary household (domus) enjoys a degree of self-suciency, particularly with regard to the giving of birth to ospring and the provision of food. Likewise, a particular street or neighbourhood (vicus) within a city will be self-sucient in respect of the particular trade that is practised there. Then, he says, a city (civitas) is by comparison self-sucient in respect of all the necessities of life but not, it seems, absolutely so. Rather, a province (provincia) is even more self-sucient than a city, particularly in respect of its capacity to defend the community against its enemies.94 Thus, although Aquinas follows Aristotle in progressing from household to city, as well as in distinguishing the city as a perfect and self-sucient community, he here diverges from Aristotle in identifying a relative

91 92 93 94

ST, II-II, 50.1. ST, II-II, 50.1. De Regno, I.2.4 [14]. De Regno, I.2.4 [14].

184

NICHOLAS ARONEY

self-suciency in the household and neighbourhood and an even greater self-suciency in the province.95 Furthermore, it is noteworthy that Aquinass vicus is not necessarily equivalent to the Aristotelian village (kome).96 When using the term vicus, Aquinas probably has in mind the street or neighbourhood of a medieval town,97 thus assimilating the Aristotelian idea of the village to the material conditions of medieval city life. Such a conclusion is reinforced by the fact that Aquinas elsewhere observes that particular crafts are practised in particular vici.98 What Aquinas leaves to implication, however, is that those who practised various crafts in medieval society were typically organised into guilds.99 Such guilds were partly self-constituted, largely self-governing, enjoyed a signicant degree of autonomy from town and city governments, and were often represented as such in the

Compare Otto von Gierke, Political Theories of the Middle Age, Frederick Maitland (trans.) (Cambridge: Cambridge University Press, 1968), p. 96: The polis or civitas ... was discovered by medieval Philosophy in a medieval town, and, by virtue of the ideal of the organic structure of the whole Human Race, the community of this polis or civitas was subordinated to a regnum and the to the imperium ... Thus, no sooner has the medieval thinker given his denition [of the civitas], than he is withdrawing it without the slightest embarrassment: his superlative becomes a comparative, and the absolute becomes relative. 96 In Contra Impugnantes, II.3, ad 6 (Proctor, Apology, I.4, p. 128), Aquinas refers to cities, villages and hamlets (civitas, vicus, villis). 97 See Eschmann, On Kingship, 9, note 22; Blythe, On the Government of Rulers, 6465, note 19. 98 [I]n one [vicus], the weavers, in another the smiths, he says. See Pol., I.1.23 [31]. 99 See Antony Black, Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present (London: Methuen, 1984), interacting critically with Otto von Gierke, Das deutsche Genossenschaftsrecht, vol. 1 (1868 repr.; Graz: Akademische Druck- und Verlagsanstalt, 1954). See also Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), pp. 39092.

95

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

185

governing institutions of town and city.100 Johannes Althusius would, a number of centuries later, take the guild very seriously, according it a constitutive and public status as a selfgoverning, autonomous and participating community within the government of the city.101 Aristotle, by contrast, did not speak explicitly of units within the polis as self-governing or as participating in the government of the city as such. He was almost certainly aware of the so-called tribes (phulai) and districts (demes) of Athens, but understood these to be subject to the superior rule of the city.102 And Aquinas (following Aristotle) does not in the passages so far under consideration accord the guilds and similar associations an explicit selfgoverning capacity or representative function within the city or kingdom.103 Yet, when in Contra impugnantes Dei cultum et religionem he is defending the status and functions of the

Moreover, craftsmen and merchants traded on the basis of a developing lex mercatoria, which had its origin in the practices and expectations of traders, and not simply in the positive laws of the cities and realms in which they lived. On the autonomy of the law of merchants, see Berman, Law and Revolution, 333356. Gerard Malynes, in the Preface to his Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant (London, 1622) (quoted in Berman, 342), considered that the lex mercatoria is customary law approved by the authority of all kingdoms and commonweals, and not a law established by the sovereignty of any prince. 101 Althusius, Politica methodice digesta, chapters IVV. See Black, Guilds and Civil Society, 132142, who (at 132) describes Althusiuss theory as perhaps the most substantial exposition of guild ideas ever known. 102 See the discussion of the reforms of Cleisthenes in the Constitution of Athens (Everson, ed.), XXXXII. In fact, the demes and phulai of Athens possessed signicant powers of self-government. See David Whitehead, The Demes of Attica, 508/7ca. 250 B.C.: A Political and Social Study (Princeton: Princeton University Press, 1986). 103 See Black, Guilds and Civil Society, 7685, who remarks at 84: [P]hilosophers saw social personality only in terms of family and state, domesticity and formal politics. A whole range of actual socio-political life vanishes into the air whenever we look at a work of political theory. Was this gulf a price paid for the classical heritage? However, compare Martin, The Vulgate Text of Aquinass Commentary on Aristotles Politics, 62, who draws attention to Aquinass familiarity with guild organisation and its impact on the Commentary on the Politics.

100

186

NICHOLAS ARONEY

religious orders, Aquinas undertakes an extended treatment of the various kinds of associations, religious and secular.104 In this latter work, building on Aristotles analysis of friendship in the Nicomachean Ethics,105 Aquinas distinguishes two categories of society, public and private, as well two sub-categories of each type, perpetual and temporary.106 A society, he says, is a union of men, assembled together for one and the same purpose. Because societies can be formed for dierent ends, there are dierent kinds of societies. A private society (societas privata) is formed for private purposes, such as merchant trade, whereas a public society (societas publica), he says, is created when men assemble for purposes connected with the common weal (homines sibi communicant in una republica constituenda), forming themselves into one city or one kingdom (unius civitatis vel unius regni). Furthermore, each of these kinds of society can be either perpetual or temporary. When a number of individuals band together to form a city, one has a perpetual society (societas perpetua) which is a public or political society (societas politica). But there can also be a perpetual private society, as that between husband and wife, or master and slave, and these are a kind of economic society (societas oeconomica). Likewise, there can be a temporary private society (societas privata et temporalis), as when individuals associate in order to engage in some temporary and private business, such as to manage an inn. And there can even be a temporary public society (societas publica sed temporalis), as when traders associate so to form a public fair.107 Aquinass immediate concern in Contra impugnantes is to show that there can be no objection to religious persons associating with secular persons for the purposes of scholarship (collegio scholastico). It is true, he admits, that laymen and clerics should not be members of societies formed, respectively, for strictly religious or secular purposes.108 But lay and religious persons alike belong to the one society of the Church of
104 105 106 107 108

Impugn., II.2 (Proctor, Apology, I.3). Nicomachean Ethics, VIII. Impugn., II.2, co (Proctor, Apology, I.3, p. 88). Impugn., II.2, co (Proctor, Apology, I.3, p. 87). Impugn., II.2, ad 1 (Proctor, Apology, I.3, pp. 889).

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

187

Christ (collegio unius Ecclesiae Christi), and they may certainly associate together for the purpose of study (collegium studii).109 A private society (collegium autem privatum), Aquinas continues, will be part of a public society (publici collegi), just as a household (domus) or family (collegio alicuius familiae) is part of a city (collegio civitatis). An individual may therefore belong, simultaneously, to a private and a public association, but where the private association is a part of a public association, that individual is not in fact a member of two dierent associations, because membership in the former necessarily entails membership in the latter. Notably, Aquinas in this connection readily acknowledges that a cleric cannot be attached to two dierent churches. However, he insists that the same does not apply to other associations, including a public association such as a city or a kingdom, because the same man can be a citizen of two cities (unus et idem homo potest esse civis in duabus civitatibus).110 In drawing these careful distinctions and in claiming that a person can be a citizen of two cities, Aquinas goes beyond Aristotle in signicant respects.111 Not only does Aquinas allow for a very wide variety of private and public associations within the context of the city (civitas), but he also writes regularly of political societies on a much wider scale, such as kingdoms (regni), nations (gentes) and provinces (provincia), themselves composed of a multiplicity of households, villages, towns and cities. A nation is clearly a community on a scale much larger than a city, and Aquinas actually goes so far as to say that the good of the nation is more divine than that of the city, family, or person.112
Impugn., II.2, ad 2 (Proctor, Apology, I.3, pp. 8990). Impugn., II.2, ad 3 (Proctor, Apology, I.3, p. 90). 111 Even though the idea of dual citizenship existed in classical Greece, Aristotle treats citizenship as an exclusive relationship between an individual and his city-state. See Politics, II.2, III.9 and compare J. A. O. Larsen, Greek Federal States: Their Institutions and History (Oxford: Clarendon Press, 1968), xi. 112 More precisely, Aquinas represents Aristotle as holding this view: De Veritate, 5.3 co. While Aristotle certainly understood the Hellenic nation (for example) to be a much wider category than the individual city-state of Ancient Greece, he certainly did not elevate the good of the nation over and above the good of the city-state. See Ethics, I.2, 1094b7-11.
110 109

188

NICHOLAS ARONEY

Moreover, although the term regnum can in certain contexts be taken to refer to the idea of political community in the abstract, when Aquinas uses this word the context often indicates that he has in mind a form of political community on a scale much larger than an individual city. This is made quite clear, for example, when he writes in De Regno of a kingdom (regnum) containing towns, farms and castles, as well as centres for the pursuit of learning, the training of soldiers and the conduct of commerce compared to an individual city (civitas) that contains, he says, places for worship, the administration of justice and the pursuit of various trades.113 Similarly, in the Summa contra Gentiles, Aquinas describes an entire kingdom as an example of a kind of universal order which is comprised of a large variety of sub-ordinate particular orders consisting of individuals, households and cities:
[T]here is a certain order among all the members of a household according as they are subject to the head of the house: again the head of the house together with all the other heads of houses in the same city have a certain order among themselves and in relation to the governor of the city; and he again together with all the other governors in the kingdom is subordinate to the king.114

Similarly, and particularly in the early chapters of De Regno, Aquinas uses the term provincia to designate a political community that is distinguished from the civitas,115 and that appears
113

De Regno, I.14.5 [100]. See, likewise, ScG, II.15.4, where Aquinas compares the universal governance of a king within his kingdom to the subordinate role of the kings wardens within each city. See, similarly, De Malo, I.1 res.: the ruler of a city intends a particular good which is the good of the city, but the king, who is his superior, intends a universal good, the peace of the whole kingdom. I have here used Jean Oesterle (trans.), St. Thomas Aquinas: On Evil (University of Notre Dame Press, 1993) and consulted the Latin edition in Quaestiones disputatae, t. 2 (Bazzi, et al., eds.) (9th edn. Taurini-Romae: Marietti, 1953). 114 ScG, III.98.1. Compare ST, II-II, 50.3 arg., stating that the household is part of a city or kingdom, thus treating city and kingdom as interchangeable, rather than the city as a constituent element of the kingdom. See also ST, I, 22.1 res., discussing the government of an individual, a family, a city or a kingdom. 115 De Regno, I.2.46 [1415] (civitas vel provincia, etc.). For further references, see De Regno, I.2.3 [12]; I.3.1 [16]; I.3.5 [20]; I.4.8 [28].

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

189

to be analogous with, if not identical to, the regnum.116 But, unlike regnum, the term provincia has an additional signicance, as it evokes the existence of an even wider and more comprehensive form of political community, namely the Empire (imperium).117 Aquinas could have restricted himself to the term regnum to designate the princely realms and emergent national kingdoms of his day,118 as he does in later parts of De Regno and in the Summa Theologiae.119 The term provincia, however, referred in Roman law to a region of the Empire,120 and was also used in canon law to designate a particular territorial jurisdiction within the Catholic Church.121 Aquinass reference to provincia

See, e.g., De Regno, I.10.1 [68], I.14.2 [98], I.15.1 [102], I.16.5 [119], II.1.1 [123] (civitas vel regnum, etc.) 117 Compare C.N.S. Woolf, Bartolus of Sassoferrato: His Position in the Political Thought of his Time (Cambridge: Cambridge University Press, 1913), pp. 274275: we nd in Aquinas the view that the Provincia is a more perfect community, because more self-sucient, than the Civitas, as the Civitas is more self-sucient than the Vicus... [I]t was only a small step further to see the culmination of this hierarchy of States in a universal Imperium, the nally most self-sucient and perfect community. 118 On the nascent national kingdoms of the thirteenth century, see Joseph Strayer, On the Medieval Origins of the Modern State (Princeton: Princeton University Press, 1970), pp. 44. 119 De Regno, I.10.1 [68], I.14.2 [98], I.15.1 [102], I.16.5 [119], II.1.1 [123]; ST, I-II, 96.5 res. 120 George Long, Provincia, in William Smith (ed.), A Dictionary of Greek and Roman Antiquities (London: John Murray, 1875). See, e.g., Stabo, Geography, Horace L. Jones (trans.) (Cambridge: Harvard University Press, Loeb Classical Library, 1932), XVII.3.25; Isidore, Etymologiae Isidori Hispalensis episcopi Etymologiarum sive Originum, Libri XX, W.M. Lindsay (ed.) (Oxford: Clarendon Press, 1911), XIV. 121 See Gratian, Decretum, Dist. III, Pt. 2; Dist. XVII, Pt. 1, Ord. Gl.; Dist. XII, c. 13, 3; Dist. XVII, Pt. 2, 2; Dist. XVIII, Pt. 1, Ord. Gl. I have here used Aemilius Friedberg (ed.), Decretum Magistri Gratiani in Corpus Iuris Canonici, 2 vols (Leipzig, 18791881) and Augustine Thomson and James Gordley (eds.), The Treatise on Laws: Decretum Dist. 120, with the Ordinary Gloss (Washington: Catholic University of America Press, 1993). Aquinass familiarity with canon law is amply displayed, e.g., in Contra impugnantes, II.23 (Proctor, Apology, I.34).

116

190

NICHOLAS ARONEY

thus calls to mind the most universal of communities: the Empire and the Church.122 Accordingly, although Aquinas often appears to avoid discussion of the Empire,123 he not infrequently writes in a way that suggests the picture of a variety of both co-ordinate and sub-ordinate jurisdictions, consisting of cities, realms and empire. Thus, Aquinas often has occasion to remark about the superior power of the emperor over a proconsul and of a proconsul over a governor (and, likewise, the power of the pope over every other spiritual power in the Church).124 Yet, elsewhere, he also points out that the subjects of one city or kingdom (civitate vel regno) are not bound by the laws of the sovereign of another city or kingdom, since they are not subject to his authority.125 Finally, Aquinas regularly compares the governance of a single individual, household, city or kingdom to the divine governance of the universe as a whole.126 And thus, when Aquinas claims that the community of the entire universe (tota communitas universi) is itself a perfect community governed by the eternal law of divine providence, the picture is indeed made truly universal in scope.127 But while this

Eschmann, On Kingship, 10, note 23, observes that nothing is very denite about this notion except that... a province is part of a greater and more comprehensive whole. 123 On the involvement of Aquinass own family in the historical confrontations between emperor and pope of his day, see Finnis, Aquinas, 13 and, generally, Catto, Ideas and Experience in the Political Theory of Thomas Aquinas. Notably, Eschmann, Thomistic Social Philosophy, 49, argues that for Aquinas, the only genuinely universal human community is the ecclesia. 124 ST, I-II, 19.5, 96.5; II-II, 69.3, 104.5. Compare De Regno, II.3.12 [112]. For other examples of Aquinass occasional references to the emperor, see Scriptum super Sententiis, II, 44.4.4 (see Dyson, Aquinas, 277278); De Veritate, II.17.4; Impugn., II.3, co. (Proctor, Apology, I.4). 125 ST, I-II, 96.5 res. 126 See, e.g., ScG, I.102 and III.98. 127 ST, I-II, 91.1. Compare the references in ST, I-II, 21.4 (totius communitatis universi) and ST, I-II, 100.5 (communitatem seu republicam hominum sub Deo); and see ST, I, 103.18, ScG, I.42, 7071, 78, 8586, 93, 102, II.39, 42, III.64, 98; Meta., II.12.12 [2663].

122

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

191

picture is undoubtedly hierarchical,128 it is a hierarchy which includes a remarkable diversity of jurisdictions. Thus, although Aquinas regards human beings and angels to be part of the one hierarchy of rational creatures under God, he maintains that there is a real sense in which they live under dierent hierarchies, just as those, he says, that cannot be governed in the same way by a prince belong to dierent principalities and, therefore, under one king there are different cities, which are governed by dierent laws and administrators.129 This progression starting with the individual; moving progressively through the categories of household, neighbourhood, city, kingdom and province; and culminating in the Empire is suggestive of what Otto von Gierke considered to be typical of medieval political thought: the conception of a universal order consisting of a manifold and graduated system of intermediating units lying between the individual on the one hand, and a universal empire and church on the other.130 In all of this, therefore, Aquinas was adapting the Aristotelian account of the city-state to a medieval institutional context in which there was a wide range of jurisdictions, ecclesiastical and secular, ranging in scale and complexity from the smallest rural village to the empire and church as a whole.131 The spiritual jurisdiction of the
See ST, I, 108.18 and 112.14, where Aquinas describes a graded hierarchy of angels, fullling the will of God. 129 ST, I, 108.1; cf. Impugn., II.3 (Proctor, Apology, I.4). Note, also, Eschmann, Thomistic Social Philosophy, 3738, 4648, who argues that Aquinas deliberately refrains from concluding that Adam was in any sense created king or head of the entire human race. 130 Otto von Gierke, Political Theories of the Middle Age, 2021. Compare Dante, De Monarchia, (c. 1312), I:3., discussing the government of the household, village, city, kingdom and empire. I have here used Donald Nicholl (trans.), Monarchy, and Three Political Letters (London: Weidenfeld and Nicolson, 1954), pp. 1011. 131 As James Blythe, Ideal Government and the Mixed Constitution in the Middle Ages (Princeton: Princeton University Press, 1992), p. 46, puts it, there was a need to adjust a theory that presupposed a relative wide and direct political participation (Aristotle) to a context in which monarchical rule was the norm and representative institutions were typical. See, likewise, Paul Vinogrado, Feudalism, in Cambridge Medieval History (Cambridge: Cambridge University Press, 1924), Vol. III, p. 458.
128

192

NICHOLAS ARONEY

church stood alongside of, and in some respects was taken to be superior to, the secular jurisdiction of the state.132 Moreover, legal historians point out that spiritual and secular authority was distributed among a diverse range of specic jurisdictions, involving varying degrees of autonomy, hierarchy and corporate representation.133 Within both the spiritual and secular spheres there were particular, partially independent or autonomous spheres of jurisdiction.134 And most of these jurisdictions were organised at a local, regional, provincial and universal level, thus forming a hierarchy from the most specic to the most general.135 As Gerd Tellenbach has explained,
In the eleventh and twelfth centuries there seems to have been an intensication of those forms of human hierarchy which had in theory always been present, and a tendency for them to take on a more objective shape ... There was also a tendency towards rounding off and dening the boundaries of spheres of inuence and control, seen in kingdoms and principalities ..., aristocratic lordships, urban and rural communes, feudal hierarchies, parishes, and dioceses. Individual fraternities of monastic communities of prayer, liturgy, and ascetic togetherness were replaced by monastic orders with a strict organisation covering many monasteries. In all these areas clearer forms were accompanied by sharper legal denitions.136

Government in these various jurisdictions, particularly at higher levels within a particular hierarchy, might be described (as will be seen) as a kind of mixed constitution, combining elements of monarchy, aristocracy and democracy. However, the composition of such governments, while formally mixed,
For the relevant documents, see Brian Tierney, The Crisis of Church and State 10501300 (Englewood Clis, NJ: Prentice-Hall, 1964). See also Gratian, Decretum, Dist. X, c. 1, Ord. Gl. 133 See Brian Tierney, Religion, Law, and the Growth of Constitutional Thought 11501650 (Cambridge: Cambridge University Press, 1982), p. 11; Gaines Post, Roman Law and Early Representation in Spain and Italy, 11501250, in Studies in Medieval Legal Thought, Public Law and the State, 11001322 (Philadelphia: Princeton University Press, 1964), pp. 6162. 134 See, e.g., Gratian, Decretum, Dist. I, c. 12, Ord. Gl.; Dist. XI, Pt. 1, Ord. Gl.; Dist. XI, c. 2, Ord. Gl.; Dist. XI, c. 8; Dist. XII, c. 3 and c. 11; Dist. XVIII, Pt. 1, Ord. Gl. 135 See Berman, Law and Revolution, 205215. 136 Gerd Tellenbach, The Church in Western Europe from the Tenth to the Early Twentieth Century, Timothy Reuter (trans.) (Cambridge: Cambridge University Press, 1993), p. 309.
132

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

193

was in fact dictated by complex systems of corporate representation, organised into a kind of quasi-federalism which, while in some respects hierarchical, involved a very signicant amount of jurisdictional diversity and independence.137 As Brian Tierney has put it:
In spite of the persistent tendency towards papal centralization, the whole Church ... remained in a sense a federation of semi-autonomous units, a union of innumerable greater or lesser corporate bodies. Bishoprics, abbeys, priories, colleges, chantries and guilds, religious orders, congregations and confraternities all contributed to the life of the Church and, equipped with their privileges and immunities, exercised substantial rights of selfgovernment.138

In this context, bodies that exercised wider and superior jurisdiction were composed of representatives of subordinate bodies which exercised relatively narrower and more specic jurisdiction. Such was the case for chapters and councils of the Church at a diocesan, provincial and universal level, for the diets and parliaments of the Empire and nascent kingdoms, as well as for the provincial and general chapters of the various religious orders.139 Likewise, individuals who held specic nonhereditary oces such as bishops and pope, abbots and
Gierke, Political Theories of the Middle Age, 2021; Frederick Maitland, Roman Canon Law in the Church of England (Cambridge: Cambridge University Press, 1898), pp. 101105; Finnis, Specically Political Common Good in Aquinas, 196, note 10. On corporate representation generally, see James Brundage, Medieval Canon Law (London: Longman, 1955), pp. 106 108, 110 and Frederick Maitland, The Constitutional History of England (Cambridge: Cambridge University Press, 1955), p. 363. 138 Brian Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism (Cambridge: Cambridge University Press, 1968), p. 90. See also Antony Black, Council and Commune: The Conciliar Movement and the Fifteenth Century Heritage (London: Burns & Oates, 1979), chapter 1. 139 Tierney, Foundations of the Conciliar Theory, 47, 1767; Brian Tierney, A Conciliar Theory of the Thirteenth Century, Catholic Historical Review 36 (195152) 415, 429431; Post, Roman Law and Early Representation, 8889; Quentin Skinner, The Foundations of Modern Political Thought, 2 vols (Cambridge: Cambridge University Press, 1978), Vol. I, pp. 128129. On the rise of cities in northern Italy in the context of the empire and the Church, see Skinner, Foundations of Modern Political Thought, I, chapter 1.
137

194

NICHOLAS ARONEY

priors, university rectors and emperor were typically elected by representatives of the constituent bodies over whom they had jurisdiction.140 A ourishing system of corporate representation by delegates was, as a consequence, well established throughout western Europe by the year 1300.141 Despite the claims of some popes and emperors to pure monarchical rule, other authoritative voices insisted that they must govern in conjunction with their colleges and councils.142 Moreover, such regimes of diverse, partly autonomous, partly hierarchical jurisdictions, together with corporate representation, were not merely empirical facts of medieval institutional life, but were regarded as normative and were supported by theoretical principles of a religious, legal and political nature.143

See Tierney, Crisis of Church and State, 2829, 4243, 107108, 122 123; R.W. Carlyle and A.J. Carlyle, A History of Mediaeval Political Theory in the West (Edinburgh: Blackwood, 19031938), Vol. VI, p. 166; R. M. Helmholz, The Spirit of Classical Canon Law (Athens, GA: University of Georgia Press, 1996), chapter 2; Charles Reid, Roots of a Democratic Church Polity in the History of Canon Law, CLSA Proceedings 60 (1998): 150; Walter Ullmann, Growth of Papal Government in the Middle Ages (London: Methuen, 1970), pp. 320323; Kenneth Pennington, Bishops and their Dioceses, Folia canonica 5 (2002): 7; Gaines Post, Parisian Masters as a Corporation, 12001246, in Studies in Medieval Legal Thought. For examples, see Third Lateran Council (1179), c. 1 and Gratian, Decretum, Dist. XVII, Pt. 3, Ord. Gl. 141 Post, Roman Law and Early Representation, 61. 142 See Tierney, A Conciliar Theory of the Thirteenth Century, 420438; Foundations of the Conciliar Theory, Pts. I and II. For examples, see Gratian, Decretum, Dist. XI c. 9, Dist. XVII c. 6, Dist. XV c. 2, Dist. IX c. 9 and Dist. XXIV c. 6. 143 See, generally, Ernst Kantorowicz, The Kings Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957); Berman, Law and Revolution, chapters 2 and 4; Tierney, Religion, Law, and the Growth of Constitutional Thought; Kenneth Pennington, The Prince and the Law, 12001600: Sovereignty and Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993). For an example, see John of Salisbury, Policraticus (1159), V.2, 6, 9. I have used Cary Nederman (ed.), Policraticus (Cambridge: Cambridge University Press, 1991).

140

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

195

Aquinass theological and philosophical reections on politics and law need to be understood in this context. Not only did Aquinas want to pursue a workable synthesis between Aristotelian philosophy and Christian theology which would provide a reasoned account of politics, but he also needed to adapt this account to the very complicated institutional context of Medieval Europe. For this reason we nd Aquinas regularly referring, for example, to cities and kingdoms or cities and provinces as the objects of his inquiries. Yet, at the same time, it is also true to say that Aquinass treatment of politics was often an abstracted one, and one in which Aristotles concentration on the individual polis or citystate, and all that that entails, shaped much of the discussion.144 As Eschmann has claimed:
Aquinas treats cities and kingdoms not as specically different communities each having its own essential characteristics, but as formally equal and only materially, i.e., historically different realizations of the same idea of perfect community.145

Likewise, John Finnis argues that Aquinass discussion of political matters in the Treatise on Law is shaped by a methodological decision to deal with the state in the abstract to treat the state as if it were ... the only political community in the world and its people the only people.146 The completeness or perfection of the state is therefore taken as a given. Aquinas, Finnis maintains, is not particularly concerned with different grades of political community. It may be true, he acknowledges, that Aquinas considers states to consist of individuals, as well as supra-individual communities, such as families and villages; and Aquinas is clearly aware of the existence and signicance of alliances and treaties between states, and that there is a kind of law (iura) which regulates the conduct of states, particularly in matters of war and peace.
See Gierke, Political Theories of the Middle Age, 96. See Eschmann, On Kingship, 9, note 21. Thus, either a city, a kingdom or a province can constitute a perfect community: De Regno, I.2.4 [14]; see also ST, I-II, 90.3 ad 3. 146 Finnis, Aquinas, 219222. Compare Kantorowicz, The Kings Two Bodies, 271, note 235, and Post, Status, id est, Magistratus: LEtat, cest Moi, in Studies in Medieval Legal Thought, 345348.
145 144

196

NICHOLAS ARONEY

However, Finnis argues, Aquinass methodological decision allows him to set aside all questions concerning the relationship between the state and the various intra-state and supra-state forms of community with which it may be associated. Hence, Aquinas often uses generic expressions, such as communitas civilis, societas politica and communitas politica, interchangeably with relatively more concrete terms, such as civitas, regnum and provincia.147 Accordingly, the word civitas often appears to be used in an abstract way, and in these cases it seems appropriate to translate the term as state rather than city.148 Thus, for example, in the Commentary on the Politics, Aquinas can follow Aristotles account of the nature and size of the city-state without any apparent need to moderate the conception so as to allow for smaller associations such as households, villages and guilds, or larger ones, such as provinces or kingdoms. He can repeat without qualication the Aristotelian dictum that a city is a composition not of households and villages but of individuals.149 He can also replicate Aristotles argument that an entire region (regio) might be surrounded by walls and be inhabited by a single nation (gens) but this does not make it a city (civitas).150 But alongside this tendency to abstraction, Aquinas still poses his political investigations in respect of both cities and larger political units, such as provinces, kingdoms and nations. Time and again he uses dual expressions, such as city or province (civitas vel provincia), city and kingdom (civitas et regnum), city or polity (civitas vel politia) and city and nation

See Finnis, Aquinas, 219, referring to ST I-II, 21.4 ad 3, 96.1, 100.2; Eth. V.2.4 [903]; Pol. I.I.3, 33 [11, 41], II.8.6 [259], III.6.5 [395]. In ST, I-II, 100.2, Aquinas distinguishes various kinds of community [diversu modu communitatum] rst as between cities ruled either by a king, by the people, or by a few powerful men and in turn between the civil community [communitates civilis] and men ... in community with God [homines ... ad communicationem cum Deo]. 148 See Black, Guilds and Civil Society, 81. 149 Pol., III.1.3, 8 [350, 355]. See Aristotle, Politics, III.1 1274b38, 1275b20. 150 Pol., III.2.6 [362].

147

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

197

(civitas vel gens) to designate the objects of his inquiries.151 These are specic terms, with concrete references to particular, distinct grades of political community, reminiscent of the deliberate distinctions developed in De Regno as regards the neighbourhood, city and province. Thus, as Georges de Lagarde has put it:
Animated by a profound sympathy for the political order of his time, Saint Thomas asserts that the pluralism founding the interplay of innumerable rights within the system of public law, of multiple societies within one State, of various regimes within an ordered society, is the natural application of that fundamental law of multiplicity which is inherent in the very notion of order.152

There is, accordingly, a tension between the abstract and historically concrete in Aquinass discussion of politics and society. Aquinass usage of city or province and similar terms can on the one hand stand for an abstract conception of the state, an ideal equivalent to Aristotles city-state (polis).
As noted earlier, see, e.g., De Regno, I.2.3 [12]; I.2.6 [15]; I.3.1 [16]; I.3.5 [20]; II.1.12 [1234]. But see, also, ST, I-II, 96.5; II-II, 47.11; 50.1, 3; Pol., I.1.21 [29]; III.5.4 [387], and compare ST, II-II, 40.1 res. (civitatis vel regni seu provinciae). It is notable that Ptolemy of Lucca, De Regimine Principum (Blythe ed.), II.8.1; II.10.1 and II.15.1, takes the progression even further, identifying a region, province, city or town, any association, province, city or town and a kingdom, province, city or any other rule as the objects of his inquires. The terminological progression in De Regno is in this respect interesting. The expression city or province is rst used as it were accidentally in De Regno, I.2.3 [12] when Aquinas is discussing the polity or the virtuous rule of the many. In earlier passages, he tends to use relatively generic terms such as community (communitas), multitude (multitudinis) and people (populus) but it is in a section soon following I.2.3 [12] that Aquinas dierentiates household, neighborhood, city and province (De Regno, I.2.4 [14]). It might be conjectured whether the Greek term polity suggested a reference to the city (civitas), together with a felt need to add the term province (provincia). One might then wonder whether this conjunction of thoughts precipitated the idea of adapting the idea of Aristotelian self-suciency to the medieval household, neighbourhood, city and province. 152 Georges de Lagarde, La naissance de lespirit laque au declin du moyen ditions Nauwage, Tome II: Secteur Social de la Scolastique (Louvain: E elaerts, 1958), p. 80. I wish to thank Jean-Marc Berthoud for this translation.
151

198

NICHOLAS ARONEY

On the other hand, his use of terms such as vicus, civitas, regnum and provincia points to the concrete institutions of his day. Such usage enables Aquinas to recognise historically specic political conditions of his time, yet at the same time to theorise about politics in essentially Aristotelian terms. When it comes to Aquinass discussion of the best constitution, then, while he presents his arguments in terms of the traditional Aristotelian categories of monarchy, aristocracy and democracy, Aquinas at the same time continues to refer to the government of a city, nation, kingdom or province, adapting Aristotle to the societal pluralism of his own day.
IV. THE BEST CONSTITUTION

What, according to Aquinas, was the best constitution? Given that he addressed the question in terms of the classical categories of monarchy, aristocracy, democracy and the mixed constitution, which of these forms did Aquinas consider to be the ideal constitution, either absolutely, or relative to the conditions of most political communities? Was it monarchy or, indeed, absolute monarchy, as Charles McIlwain has claimed?153 Alternatively, was it a mixed constitution, as Thomas Gilby maintained?154 Or, given the fact that texts can be adduced that support both conclusions, was Aquinas simply inconsistent on this point? In this section, I seek to do two things. First, following the lead of Brian Tierney, James Blythe and others, I argue that in those passages in which Aquinas wrote in favour of monarchy, it was in fact a tempered monarchy that he preferred, and that
Charles McIlwain, The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages (New York: Macmillan, 1932), pp. 330336. Compare Paul Sigmund, Law and Politics, in Norman Kretzmann and Eleonore Stump (eds.), The Cambridge Companion to Thomas Aquinas (Cambridge: Cambridge University Press, 1993). 154 Gilby, Political Thought of Thomas Aquinas, 292300. Compare Eleonore Stump, Aquinas (London: Routledge, 2003), pp. 314316. See also Lord Acton, The History of Freedom in Christianity, in The History of Freedom and Other Essays (London: Macmillan and Co, 1907), pp. 3637; Friedrich Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1978), p. 457, note 4.
153

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

199

his conception of a tempered monarchy is not inconsistent with those passages in which he favours a mixed constitution. Second, I seek to take the matter further by exploring the implications for Aquinass theory of the best constitution of his treatment of the various forms and grades of social, ecclesiastical and political community. In the key passages where Aquinas specically addresses the question of the optimal constitution, there is a tension between an idealised, abstract conception of the political community and a conception of politics and society in which the manifold forms of human community are fully recognised and elaborated. In some passages, Aquinas tends to the more abstract approach, referring to the civic community,155 or the polity.156 However, elsewhere, he turns to more concrete expressions, such as city, nation, kingdom157 and province.158 Because these dierences shed light on Aquinass treatment of the ideal constitution, it is again necessary to examine each of these texts in turn. The abstract approach tends to dominate the Commentary on the Politics, as Aquinas there exposits Aristotles analysis of constitutions without signicant qualication. Aquinas explains, in true Aristotelian fashion, that polities are distinguished as to whether they are just or unjust on the basis of whether the rulers seek the common good or their own private interests.159 The just rule of the one is called monarchy (monarchia), he says, the just rule of a few is called aristocracy (aristocratia), and the just rule of the many is covered by the term common to all, namely polity (politia).160 Similarly, the corruption of monarchy is tyranny (tyrannis), the corruption of aristocracy is oligarchy (oligarchia) and the corruption of polity is democracy (democratia).161
ST, I-II, 95.4 res. Pol., III.5.4 [387]. 157 ST, I-II, 105.1 res. 158 De Regno, I.3.1 [16]; cf. II.1.12 [1234]. 159 Pol., III.5.7 [390]. 160 Pol., III.6.3 [393]. On the transliteration of these Greek terms into the Latin of William of Morebeke and Aquinas, see Martin, The Vulgate Text of Aquinass Commentary on Aristotles Politics, 3940, 5052. 161 Pol., III.6.4 [394].
156 155

200

NICHOLAS ARONEY

Unfortunately, the Commentary was unnished by Aquinas, and he does not in that work fully address the question of what kind of constitution is best, either absolutely, generally or in the circumstances of a particular people.162 However, he does arm that aristocracy is characterised by the rule of those who excel in virtue,163 and he recounts Aristotles argument that the rule of a few might best be understood rather as the rule of the rich, and likewise the rule of the many understood as the rule of the poor.164 But that is as far as Aquinass Commentary extends. It is regrettable that Aristotles arguments concerning what is the best constitution are not reached, because, as it turns out, it is on this question that Aquinas appears to depart somewhat from Aristotle. In the Summa contra Gentiles, when discussing the constitution of the church, Aquinas oers the generalisation:
The best form of government for a multitude is to be governed by one; which is obvious from that end of governance which is peace; for peace and unity of its subjects is the end of governance; and one is a more apt source of unity than many.165

Aristotle had related the merits of monarchy to the possibility that there might be a single individual who is preeminently virtuous.166 In this passage, however, Aquinas posits unity as the main rationale. Indeed, it even seems to follow that an individual ruler who is less than pre-eminently virtuous perhaps even decient in virtue might nevertheless provide the requisite unity in government that is its chief end. Aquinas thus appears to be a most unambiguous supporter of the monarchical form of government. The question is taken up further in De Regno. Aquinas there begins with the proposition that there is a single end for human beings, to which their lives and actions are ordained, namely the common good. Human beings are social and political animals, he says, and it is necessary that the political community
162 163 164 165 166

Although see Pol., II.7.4 [245], discussed at notes 179 and 208 below. Pol., III.6.4 [394]. Pol., III.6.68 [396398]. ScG, IV.76.4. Politics, III.13, 1284a47, 1284b3234; III.17, 1288a1529.

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

201

be governed to achieve this collective goal. If individuals seek only what is good for themselves, however, the multitude will be dispersed. It is therefore necessary, he concludes, that some governing entity concern itself with what pertains to the common good.167 As in the Summa contra Gentiles, Aquinas thus again posits a fundamental unity as to the community itself, as to the end of the community (the common good), and as to the power that governs the community. Thus, when Aquinas turns in De Regno to consider whether it is more useful for a multitude to be governed by one or by many, the matter is resolved by considering the end of government. Aquinas says that the good and well-being of a consociated multitude (bonum autem et salus consociatae multitudinis) is that its unity (unitas) and peace (pax) should be preserved. The more ecient a government is in preserving the unity of peace, the better it is. And what is in itself a unity, he continues, will be more eective in bringing about political unity than the rule of the many. The government of the one is thus again to be preferred to the rule of the many.168 In De Regno Aquinas continues to accept the Aristotelian distinction between government by the one, the few and the many, so that there is a distinction between kingship, aristocracy and polity on one hand, and tyranny, oligarchy and democracy on the other.169 However, when explaining the Aristotelian doctrine that while monarchy is the best form of government, tyranny is the worst, Aquinas relies on the proposition that a united force is more ecacious than a divided force. The key determinant once again is whether government is unied or dispersed. Among good governments, just as monarchy is better than aristocracy because it is productive of a greater degree of unity, so aristocracy is better than polity. Likewise among unjust governments, tyranny is worse than oligarchy because the rule of one is the most ecient of governments, and is thus productive of an ecient and eective
De Regno, I.1.17 [29]. Aquinas is attracted to the metaphor of a pilot directing a ship towards its harbour: De Regno, I.1 [2]; I.3.13 [1718]; I.15.23 [103104]. 168 De Regno, I.3.13 [1518]. 169 De Regno, I.2.13 [1013].
167

202

NICHOLAS ARONEY

oppression. By parity of reasoning, oligarchy is worse than democracy. The entire analysis depends on the relative eectiveness of the system of government for good or for ill.170 The same result is achieved, Aquinas continues, by considering that a just government seeks the common good, whereas an unjust government seeks the private good of the governing element. In relation to unjust governments, tyranny is the worst because the private good of one is far removed from the common good of the entire community. By comparison, the private good of many is closer to the common good of the whole, and is therefore the least bad among governments. Oligarchy falls between the two extremes.171 Aquinas accordingly concludes that it is expedient that just government should be one and therefore strong and ecacious, whereas it is better that unjust government should be many and therefore weaker.172 And he supports this conclusion by comparing human government to the divine government of the universe, which is also a monarchy.173 In all of these arguments, therefore, the unity of the political community is at the forefront of the analysis. Indeed, unity seems to play a more important role in Aquinass assessment of the best constitution than it does in Aristotle. Aquinas is thus particularly concerned about the evil of dissension that ows from the government of many pursuing their own private ends. So much so, that it leads him to distinguish between ordinary tyranny and excessive tyranny. Ordinary tyranny, he says, does not completely obliterate the good of peace because tyrants are usually only concerned to pursue their own private good, rather than the positive objective of oppressing their subjects. Thus, ordinary cases of tyranny are actually preferable to the corrupted government of many. It is only in an excessive tyranny, Aquinas insists, where a tyrant attends deliberately to

De Regno, I.4.12 [2123]. De Regno, I.4.3 [24]. 172 De Regno, I.4.4 [25]. Individuals, he suggests, will prevent and impede one another from pursuing their own ends. 173 De Regno, I.3.4 [19]; I.4.4 [25].
171

170

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

203

the oppression of his subjects, that one is confronted with the greatest degree of evil in government.174 It comes as no surprise that passages such as these in Summa contra Gentiles and De Regno have led a number of authors to maintain that Aquinass actual preference is for absolute monarchy.175 Others, however, have argued that Aquinas has a tempered monarchy in mind, for he goes on in De Regno to consider ways in which provision can be made for preventing a king from becoming a tyrant.176 Aquinas thus says that it is in the rst place important to choose a person who is unlikely to become a tyrant. It is also important, he suggests, to remove the occasion of tyranny from the king and to temper his power so that the monarchy cannot easily decline into tyranny. Moreover, if these strategies fail, it may even be necessary to resort to deposition of the king, although this ought to be done by public authority rather than private presumption.177 Hence, while in Summa contra Gentiles and De Regno Aquinas marshals a range of arguments in favour of monarchy, on a preliminary reading of De Regno, there is reason to believe that it is a tempered monarchy that he prefers.

De Regno, I.6.12 [3638]. See also Aquinass treatment of Ulpians famous text, the prince is not bound by the laws (princeps legibus solutus est) in ST, I-II, 96.5 ad 3. Aquinas argues that while the prince is not subject to the coercive force of his own laws because there is no one to pass sentence upon him, he remains subject to its directive power, in line with the teaching of Christ and the law of the Church. 175 E.g., McIlwain, Growth of Political Thought, 330336; Beer, Rule of the Wise and Holy; Skinner, Foundations of Modern Political Theory, I, 54, 62. 176 See Tierney, Aristotle, Aquinas, 34; Blythe, Mixed Constitution, 41 58; Finnis, Aquinas, 255274; Gilby, Political Thought of Thomas Aquinas, 292300; Carlyle, History of Mediaeval Political Theory, V, 9097. 177 De Regno, I.7.10 [51].

174

204

NICHOLAS ARONEY

What then of Aquinass unequivocal declaration in the Summa Theologiae that the mixed constitution is in fact the best?178 In this connection, it is rst important to note the connection Aquinas very explicitly makes in the Commentary on the Politics between the idea of a tempered government and the idea of a mixed constitution. Commenting on Aristotles assertion that a kind of mixed constitution (quasi commixtum) is in at least some circumstances the optimal form of government (optimum regimen civitatis), Aquinas explains that the reason why such a regime is the best is because one government is tempered by the admixture of another (unum regimen temperatur ex admixtione alterius). For in such a regime, he says, less material is given for sedition because all have a part in the ruling of the city: the people, the powerful and the king.179 This tempering mixture, James Blythe has argued, amounts to a conception of limited government, or government under law. As Blythe points out, Aristotle distinguished three modes of rule, which he called political, regal and despotic. For Aristotle, political rule is associated with polity (government of the many for the common good), whereas regal and despotic rule apply particularly to monarchies.180 However, Blythe
The apparent inconsistency between what Aquinas says about monarchy and the mixed regime has long been the subject of controversy. See Francisco de Vitoria, Lectiones in ST, I-II 90105 De Lege, in Vitoria, Political Writings (Cambridge: Cambridge University Press), p. 198. Vitoria argued that when Aquinas and Aristotle conclude that monarchy is best they did so considering the matter per se, whereas when they later expressed a preference for a mixed regime they were taking into consideration circumstances and persons. This explanation is not without merit. Aristotle was very explicit in distinguishing the question of what system of government is best in the abstract, what is best for most cities, and what is best for any particular city. See Politics, IV.1, 1288b2139; IV.1, 1289b14 20; IV.11, 1295a2531, 1296b311; IV.12, 1296b1214; VII.4, 1325b3437, 1334a. 179 Pol., II.7.4 [245], commenting on Politics, II.6 1265b3440, discussed in Blythe, Mixed Constitution, 4950. See also Finnis, Aquinas, 261262. 180 Politics, I.1, 1252a.1516. See Blythe, Mixed Constitution, 19. See also James Blythe, Family, Government, and the Medieval Aristotelians, History of Political Thought 10 (1989): 1; James Blythe, The Mixed Constitution and the Distinction between Regal and Political Power in the Work of Thomas Aquinas, Journal of the History of Ideas 47 (1986): 547.
178

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

205

argues that an ambiguous translation of Aristotles text,181 led Aquinas to understand regal government to be absolute rule as distinct from political rule or government under law.182 On Aquinass view, therefore, it was possible to conceive of any one of the three basic forms of government (monarchy, aristocracy and democracy)183 as involving either regal or political rule. As a consequence, one can have a monarchy in which rule is exercised in either a political or regal way, just as in our own day we are able to distinguish between absolute and constitutional monarchy. And Blythe argues that while Aquinas expresses a preference for monarchy, it is in fact a political or constitutional form of monarchy that he favours. Aquinas therefore seeks to place legal restraints on the king in order to prevent tyranny, and the practical means by which this is achieved is to temper one type of government by the admixture of another. Interpreted in this light, what Aquinas says about the tempered constitutional monarchy in De Regno seems to be consistent with the idea of a mixed constitution.184 But can the
Politics, I.1, 1252a.1516, translated by William of Moerbeke as: when according to the rules of the discipline one is in part both ruling and subject it is political. Compare the translation of Jowett: when, according to the rules of the political science, the citizens rule and are ruled in turn, then he [the ruler] is called a statesman, with the more ambiguous translation of Lord: in political [rule] one who, on the basis of the precepts of this sort of science, rules and is ruled in turn. See Everson (ed.), Politics, 11; Carnes Lord (trans.), The Politics (Chicago University of Chicago Press, 1984), p. 35; Blythe, Mixed Constitution, 43. 182 See Blythe, Mixed Constitution, chapter 3. 183 For ease of expression, I will generally use the term democracy in its modern sense to refer to simply to government by the many, without any necessary implication of corruption. Aquinas himself sometimes uses the term democratia, rather than politia, to designate the good form of government by the many. See ST, I-II, 105.1 res., discussed at notes 208229 below. 184 See Blythe, Mixed Constitution, 4168, and for a similar interpretation, Finnis, Aquinas, 261262. Blythe points out that Aquinass disciple, Peter of Auvergne, shows little sympathy for Thomass distinction between regal and political rule, and therefore seems to oscillate between support for a mixed constitution and support for a hereditary king: Blythe, Mixed Constitution, 7879.
181

206

NICHOLAS ARONEY

same be said about the passage from the Summa contra Gentiles already adduced in which Aquinas argues so strongly in favour of monarchy?185 In this passage, it especially needs to be recalled, Aquinas is writing about church government, not the government of the state.186 And in this respect, he very explicitly says that although there are many peoples in each city and diocese, there is at the same time but one universal church and one Christian people. Accordingly, just as there is one bishop over the people of a particular diocese, so there is one head over the entire church. Thus, while Aquinas argues for monarchy within the church, it appears to be a plurality of monarchies that he has in mind that is, a plurality of monarchies governing a plurality of peoples, gathered together into their respective dioceses. Aquinas certainly believes that unity is an essential characteristic of the church as a whole, governed by one head, the Pope. However, he just as clearly refers to a plurality of peoples, governed by a plurality of bishops, and thus what might be called a harmonious plurality in unity.187 Hence, even though there is no explicit tempering of the monarchy in the Summa contra Gentiles, the work presents a plurality of monarchies brought together into a harmonious unity. And, in this respect, it is arguable that, despite the strong support for monarchy that Aquinas advances in De Regno, the same suggestion of a plurality of monarchies lies not far beneath the surface of that work as well. First, there is Aquinass

ScG, IV.76.4. On Aquinass ecclesiology, see Tierney, Aristotle, Aquinas, 58; Yves siologiques de la querelle entre Mendicants et Congar, Aspects Eccle culiers dans la Seconde Moite du XIIIe Sie cle et le De but du XIVe, Se Archives dhistoire doctrinale et litteraire du Moyen Age 36 (1961): 35; Ch. Zuckerman, Aquinas Conception of the Papal Primacy in Ecclesiastical Government, Archives dhistoire doctrinale et litteraire du Moyen Age 40 (1973): 97. 187 Compare Cyprian, De catholicae ecclesiae unitate (c 251), 5: The Church is a unity; yet by her fruitful increase she is extended far and wide to form a plurality .... I have here used the translation in Henry Bettenson (ed.), Documents of the Christian Church (2nd edn. Oxford: Oxford University Press, 1967), pp. 7173.
186

185

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

207

recurrent reference in De Regno to the political and social nature of human beings.188 Second, there is the remarkable way in which in this work Aquinas adds the neighbourhood, province and (by implication) the empire to the Aristotelian picture of the household, village and city.189 Third, there is Aquinass persistent reference in De Regno to the city and province or the city and kingdom as the object of his analysis.190 Read against the institutional context in which he lived, the picture is noticeably reminiscent of the idea of a plurality of peoples within a unied people, suggested by the Summa contra Gentiles. In that work Aquinas has in view a plurality of peoples gathered in their cities and dioceses, governed by their respective bishops, but unied into one people under the universal headship of the Pope.191 In De Regno, he likewise seems to have in view a plurality of peoples, gathered together in their respective cities and provinces, each governed by their respective rulers.192 The daunting array of arguments in favour of monarchy that Aquinas marshals in De Regno should be understood in this context.193 While Aquinas clearly favours monarchy, he is also very much concerned about tyranny understood (in its narrow sense) as a corruption of monarchy, and the worst, he says, of all forms of government. And, notably, Aquinas observes

E.g., De Regno, I.1.3 [4]; II.1.1 [123]. De Regno, I.2.4 [14]. 190 E.g., De Regno, I.2.56 [1415]; I.3.1 [17]; I.3.5 [20]. 191 ScG, IV.76.4. 192 The constitutional structure of Aquinass own Dominican Order supports this interpretation. The order consisted of convents and provinces, governed, respectively, by conventual and provincial priors and a mastergeneral, in conjunction with representative provincial chapters and a general chapter of the entire order. See Pierre Mandonnet, St. Dominic and His Work, Mary Larkin (trans.) (St. Louis: Herder, 1948), chapter 6; Pierre Mandonnet, Order of Preachers, in The Catholic Encyclopedia (New York: Appleton, 19071912); Proctor, Introduction, Apology for the Religious Orders, 1418; Barker, Dominican Order and Convocation, chapter 1, especially 1418; Gilby, Political Thought of Thomas Aquinas, 6672, 289292. Consider, likewise, the constitutional structure of the University of Paris, on which, see Post, Parisian Masters as a Corporation. 193 See DEntreves, Thomas Aquinas, xxix.
189

188

208

NICHOLAS ARONEY

that a tyrant deliberately undermines all forms of social solidarity among his subjects, preventing them from joining in various kinds of compacts and associations (confederationes) between individuals and families by which social friendship, familiarity and trust is generated.194 Tyranny is thus something intrinscially opposed to the inherently social nature of human beings, in all of the manifold forms of human community. In order to forestall tyranny of this kind, a king must be chosen carefully, Aquinas says. The government of a kingdom must be so arranged so as to prevent the opportunity for tyranny. The kings power should be moderated. And properly instituted public authority must be allowed to depose a king who becomes tyrannical.195 It is true, as some have observed, that Aquinas does not tell us precisely what these constitutional arrangements ought to look like, nor how such public authorities might be constituted.196 When compared to the detailed formulations of later political theorists and jurists, this is doubtless the case. However, what Aquinas does say on the matter implies a great deal, particularly if it is understood in the institutional context of his day.197 As he explains, public authority may develop in one of two ways. First, it may pertain to the right of some multitude to provide a king for itself. In such a case, if the king abuses his power tyrannically, the multitude may justly bridle his power or depose him if necessary. Indeed, this right exists even if the multitude has previously entered a pact (pactum) by which it has subjected itself to him in perpetuity. The multitude acts
De Regno, I.4.7 [27]. De Regno, I.7.112 [4152]. As noted earlier, if no human remedy is available, the only recourse left for private individuals is to entreat the intervention of God: De Regno I.7.1012 [51]. Notably, the examples of divine intervention in the Bible that Aquinas cites involve the kings of Egypt, Babylon and Persia paradigms of tyrannical government far removed the biblical ideal. See, also, Finnis, Aquinas, 275279, 287291, who discerns in Aquinas a private right of resistance, in at least some circumstances. 196 Osborne, Fortescues Response to the Problem of Tyranny, 167. 197 Compare Blythe, Mixed Constitution, 48, 5657; Richard Regan, Aquinas on Political Obedience and Disobedience, Thought 56 (1981): 77, 84.
195 194

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

209

faithfully in deposing a tyrannical king, Aquinas says, because he has acted unfaithfully to the compact. Second, the requisite public authority may possibly be deduced from the original right of a superior to provide a king for a multitude. In such circumstances, Aquinas argues, the multitude must look to that superior for a remedy.198 Such remedies cannot be dismissed as abstract theories. The legitimate authority of the typical medieval ruler was derived from a multitude of pacts and other less formal arrangements and understandings between himself and the various magnates of the realm; and it was not at all unlikely that a ruler would be subjected to the overlordship of some superior authority.199 In this connection, we have seen that Aquinas suggests that the empire is itself a composition of provinces, just as the province is a composition of cities and the city is a composition of neighbourhoods. While he is silent on the matter, does this not further imply that the government of each successively larger political community should be so arranged that the smaller communities of which it is composed are corporately represented by public authorities which have the right to elect, control and, if necessary, depose, a tyrannical king? If so, what Aquinas says about a plurality of tempered monarchies in the Summa contra Gentiles and De Regno seems very little dierent
De Regno, I.7.69 [4750]. See, likewise, De Virtutibus in Communi, 4, res. I have here used John Patrick Reid (trans.), St. Thomas Aquinas On the Virtues in General (Providence: Providence College Press, 1951) and consulted the Latin edition in Quaestiones disputatae, t. 2 (Bazzi, et al., eds.) (9th edn. Taurini-Romae: Marietti, 1953). 199 Frederick Wilhelmsen, Christianity and Political Philosophy (Athens, GA: University of Georgia Press, 1978), p. 150: The legitimate power of the [medieval] king was the fruit of a hundred pacts solemnly entered upon by princes and subjects, themselves represented by a thicket of institutions which were the work of generations and even centuries of common experience. On this question, compare M. J. Wilks, The Problem of Sovereignty in the Later Middle Ages (Cambridge: Cambridge University Press, 1963), pp. 129134; Charles Zuckerman, The Relationship of Theories of Universals to Theories of Church Government in the Middle Ages: A Critique of Previous Views, Journal of the History of Ideas 36 (1975): 579; and George Sabine, A History of Political Theory (London: George Harrap & Co, 1948), p. 220.
198

210

NICHOLAS ARONEY

indeed from what he says about the mixed constitution in the Summa Theologiae. In two important passages in the Treatise on Law, Aquinas very plainly states that the best regime is one in which there is a mixture (commixtum).200 In the rst of these passages, Quaestio 95.4, the specic concern is to defend the classication of laws undertaken by Isidore in his Etymologiae.201 Among the distinctions drawn by Isidore, one of them (says Aquinas) is to dierentiate between laws, acts of the plebeian assembly, senatorial decrees (leges, plebiscita, senatusconsulta) and the like. Drawing on what he has said earlier about the nature of law in general and human law in particular, Aquinas denes human law as that which is derived from the law of nature, ordained to the common good of the political community, framed by the one who governs the political community and designed so as to direct human actions. As regards the framing of human law by the one who governs the political community (gubernante communitatem civitatis), the various kinds of laws can be distinguished, he says, according to the various forms of government. Following Aristotle,202 Aquinas explains that the rst of these is monarchy (regnum), where the city is governed by the one (civitas gubernator ab uno), and in such cases the laws that are made are called princely ordinances (constitutiones principum). Another is aristocracy, which is the rule of the (politically) best, to which corresponds authoritative legal opinions and senatorial decrees (responsa prudentum et etiam senatusconsulta). Yet another is oligarchy, which is the rule by the rich and powerful few, and here the law is called praetorian and honorary (jus praetorium ... honorarium). Then there is also the rule of the people (regimen est populi), which is called democracy (democratia), and in this case the acts of the plebeian assembly (plebiscita) are law. In contrast to all of these forms of government and types law, however, Aquinas next says that tyranny is a kind of regime so corrupt that no law (lex) comes forth from it at all. And, nally, he concludes with the
ST, I-II, 95.4 and 105.1. Isidore, Etymologiae, W. M. Lindsay (ed.) (Oxford: Oxford University Press, 1911), V.410. 202 Ethics, VIII.910 1060a301161b10; Politics, IV.34 1294a30b41.
201 200

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

211

observation that there is another kind of regime altogether, which is a mixture of the others, and which is in fact the best, in which law comes into being when enacted or ratied by the elders and the common people (Est etiam aliquod regimen ex istis commixtum, quod est optimum; et secundum hoc sumitur lex, quam majores natu simul cum plebibus sanxerunt, ut Isidorus dicit).203 Aquinas thus uses the Aristotelian analysis of the forms of government to defend Isidores classication of various kinds of laws. Notably, as Blythe has pointed out, Aquinas seems to reserve the unqualied term law (lex) to the regimen commixtum, suggesting perhaps that only in a mixed constitution does law in the proper and fullest sense of the word exist in all other regimes, one merely has the pronouncements of this or that group (e.g., constitutiones principum, senatusconsulta, jus praetorium and plebiscita).204 But what kind of mixture does Aquinas have in mind in this passage?205 Five kinds of simple regime are analysed (monarchy, aristocracy, oligarchy, democracy and tyranny), but only two governing elements are explicitly mentioned in connection with the mixed regime the elders (majores) and the commons (plebibus). Is this meant to imply a mixture of only two elements, namely aristocracy and democracy? Or are other elements included? At the least, it is most likely that tyranny (i.e., the corruption of monarchy) is excluded, for Aquinas says that it is so corrupt (omnino corruptum) that it does not produce law (lex) at all. The same, moreover, might also be said about oligarchy, since it is the corrupt form of aristocracy; and yet Aquinas clearly thinks that it is able to produce a kind of law unlike tyranny. It is possible, therefore although far from certain that majores is meant to encompass both aristocracy and oligarchy. Indeed, when discussing the mixed constitution Aristotle often understood it to include an element of oligarchy.206 But if oligarchy is possibly included, what then about monarchy? Monarchy, after
ST, I-II, 95.4 res. Blythe, Mixed Constitution, 50. 205 That is, without reading it in the context of ST, I-II, 105.1, discussed below. 206 See Politics, IV.8, 1293b3337, 1294a1525; V.7, 1307a514.
204 203

212

NICHOLAS ARONEY

all, is one of the good forms of government, and in De Regno and Summa contra Gentiles, Aquinas has said that it is in fact the best. While this passage in the Summa Theologiae does not refer explicitly to monarchy, an ambiguity in the way in which Aquinas presents Isidores text at least opens up the possibility that he had a mixed constitution in mind that included monarchy. Isidore says that law (lex) is made when something (aliquid) is enacted or sanctioned (sanxerunt) by the elders and commoners. However, in Aquinass reproduction of this text, the term aliquid is omitted. Isidores use of this word seems to preclude the possibility that what is sanctioned by the elders and commoners is in fact a law proposed by a third, initiating element, such as a king. However, the omission of aliquid in Aquinass text leaves it open to interpret the elders and commoners, not as enacting or making law on their own initiative, but rather as sanctioning or ratifying a law originally proposed by a king. Thus it is at least possible that Aquinas has in mind a process roughly corresponding to the legislative process then being developed in the religious orders, universities, church councils and national parliaments of Western Europe, in which measures were usually initiated by a single ruler, and agreed to by the nobility, with the consent of the commonalty.207 Such an interpretation although speculative would have the merit of helping to reconcile the high view of monarchy presented in De Regno and the mixed constitution favoured in the Summa Theologiae. It would also help to make Aquinass discussion of the mixed constitution in Quaestio 95.4 consistent with his discussion in Quaestio 105.1.
Compare Henry de Bracton, De Legibus Et Consuetudinibus Angli (c 1220s1250s), Introductio, II, p. 19: it will not be absurd to call English laws leges, though they are unwritten, since whatever has been rightly decided and approved with the counsel and consent of the magnates and the general agreement of the res publica, the authority of the king or prince having rst been added thereto, has the force of law. (Sed non erit absurdum leges Anglicanas licet non scriptas leges appellare, cum legis vigorem habeat quidquid de consilio et consensu magnatum et rei public communi sponsione, auctoritate regis sive principis prcedente, iuste fuerit denitum et approbatum.)
207

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

213

In Quaestio 105.1, the second of the two passages in the Treatise on Law dealing with the mixed constitution, Aquinas makes clear that he has a mixture of monarchy, aristocracy and democracy in view.208 Aquinas asks: Did the Old Law enjoin tting precepts concerning rulers? The question has both a theological and a political aspect.209 The theological issue concerns the continuing status of the Law of Moses after the coming of the Gospel. Aquinas is thus dealing with the general problem of understanding the relationship between the Old and New Testaments, and it is therefore critical for him to cite a range of theological and biblical authorities on the question.210 And yet the question is whether the Old Law provided a model for the best constitution (optima politia). Aquinas asks whether this law enjoined tting precepts, and as such the Old Law is evaluated according to a political standard. Despite the theological context, then, the question engages a problem that concerns human aairs and Aquinas can look to Aristotle for guidance on this question.211 Moreover, the argument is directed to the right ordering of rulers in a city or nation (bonam ordinationem principum in aliqua civitate vel gente). Here, as elsewhere, the terms city or nation allow Aquinas to write abstractly about the state but at the same time acknowledge the varied scale upon which government was exercised in his own day. Does Aquinass treatment of these issues therefore entail the same implication of a kind of plurality in unity that I have argued can be discerned in the Summa contra Gentiles and De Regno? To answer this question it is necessary to attend closely to Aquinass argument. First, Aquinas derives from Aristotle the
ST, I-II, 105.1. See, likewise, Pol., II.7.4 [245], describing a mixed regime in which rule is shared among the people, the powerful and the king (puta si in aliquot dominetur populus, in aliquot potentes, in aliquot rex). 209 See James Schall, The Right Order of Polity and Economy: Reections on St. Thomas and the Old Law, Cultural Dynamics 5(7) (1995): 427. 210 In ST, I-II, 105.1, Aquinas cites or alludes to no less than 21 biblical texts. On the use of the Bible in medieval political theory, see J. N. Figgis, Studies of Political Thought from Gerson to Grotius 14141625 (Cambridge: Cambridge University Press, 1956), pp. 1819. 211 See Pol., pro. 7 and Eth., I.2.13 [31] discussed in the text at notes 3637 and 54 above. In ST, I-II, 105.1, Aristotle is cited on four occasions.
208

214

NICHOLAS ARONEY

proposition that all should have some share in the government, for this is conducive to peace among the people (pax populi) and thus all will love and defend the constitution.212 Second, of the various kinds of constitution identied by Aristotle,213 Aquinas says that the two principal ones are monarchy, where the one rules on account of his particular virtue, and aristocracy, where a few rule, again on account of their special virtue. And Aquinas concludes that the best constitution (optima politia) is one which consists of monarchy, aristocracy and democracy, well mixed (bene commixta).214 In this passage, Aquinas follows Aristotle more closely than he does in De Regno, for he understands kingly and aristocratic rule to be founded specically on the virtue of the rulers. The appropriateness of a mixed constitution derives from the fact that it combines the merits of monarchy and aristocracy with the participation of all citizens. The necessity of unity, so important in De Regno, is not explicit in Quaestio 105.1.215 Indeed, Aquinass description of the regimen commixtum of monarchy, aristocracy and democracy is put in terms that, unlike Aristotle, seem to assimilate it to a kind of elected monarchy tempered by an elected aristocracy.216 Aquinas says that the best form of government (optima ordinatio principum) is one in which:
One man is chosen to preside over all according to virtue; when he has under him others who govern according to virtue; and when such government nonetheless belongs to all, both because all are eligible for election to it and because it is elected by all.217

That the monarch presides or leads (praesit), and that the aristocracy is under or subordinate to (sub ipso) the king, suggests a degree of subordination and hierarchy. In this respect, a tempered monarchy, rather than a similarly qualied aristocracy or democracy, seems to be implied. Yet the process
Politics, II.6 1270b17. Politics, III.5 1279a32. 214 ST, I-II, 105.1 res. 215 Although note that in ST, I-II, 105.1 ad 3, Aquinas accepts the proposition that a divided kingdom leads to destruction. 216 For a similar interpretation, see Blythe, Mixed Constitution, 52. 217 ST, I-II, 105.1 res.
213 212

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

215

that is envisaged suggests that both kingly and aristocratic oces are fully elective in nature, a characteristic of a democratic state.218 Is this position consistent, then, with the treatment of monarchy in the Summa contra Gentiles and De Regno? In Quaestio 105.1, when responding to the argument that monarchy is in fact the best form of government because it most resembles the divine government of the world, Aquinas replies, along lines similar to the longer discussion in De Regno,219 that a monarchy is indeed the best government, if it is not corrupted.220 And he adds that in light of the great power (magnam potestatem) conceded to a king and the corruptions of human nature, tyranny is very likely. For this reason, God did not institute a king with full power (plena potestate) among the Jews, he says, but initially placed them under a judge and governor for their guardianship. Moreover, Aquinas points out, the Old Law laid down a number of conditions to be applied to the appointment and conduct any future king, with the general objective of preventing tyranny. Thus, there were laws governing the method of election of a king, laws regulating the kings way of life and laws prescribing the responsibilities of the king, rst, towards God, and second, towards his subjects.221 Thus, while in Quaestio 105.1 Aquinas makes a fully developed argument in favour of a mixed constitution, and says that such a regime was in fact prescribed by the Old Law, he sees no contradiction in pointing out in the same passage that the Old Law also prescribed a kind
See Aristotle, Politics, IV.15, 1300a347: that all should ... appoint from all ... is characteristic of a polity. Dewan, St. Thomas, John Finnis, and the Political Common Good, 356, note 27, points out that while the term king suggests to us a hereditary oce, Aquinas has an elected oce in mind. The idea of a choice or election of the ruler is made explicit in De Regno and the Summa Theologiae, and in the Summa Contra Gentiles, where Aquinas is discussing the Pope, he is by denition writing about an elected oce, albeit an oce chosen by a few (the college of cardinals). The oce of Emperor, as well as many oces within the religious orders and universities, was also elective. 219 Compare De Regno, I.3.4 [19], I.4.4 [25], discussed in the text at note 173 above. 220 ST, I-II, 105.1 ad 2, emphasis added. 221 ST, I-II, 105.1 ad 2.
218

216

NICHOLAS ARONEY

of tempered monarchy, which is precisely the stance he took in De Regno on this point. And yet Aquinass stated question remains: did the Old Law enjoin tting precepts concerning rulers? Aquinas does not want simply to establish the credentials of the mixed constitution. He wants to show that the Old Law established an optimal system of government. It is therefore necessary for him to show that the Old Law established a system of government that was indeed the best, according to the criteria thus stipulated.222 And
According to Blythe, Mixed Constitution, 53, it seems indisputable that Aquinas is recommending this form of government as best absolutely, and not just as one suited only to the Jews. This, however, seems to overstate the case. Aquinass primary concern in ST, I-II, 98105, is theological, not political. The wider issue he is grappling with has to do with the status of the Old Law after the coming of Christ and the Gospel. Of the Old Law, Aquinas has said that it consists of moral, ceremonial and judicial precepts (Q.99.15). He has armed that the moral precepts of the Old Law belong to the law of nature (Q.100.1), that they concern acts of virtue (Q.100.2) and that they are not dispensable (Q.100.8). On the other hand, Aquinas has said that the ceremonial and judicial precepts are divinely inspired determinations (cf Q.95.2 and 95.4) of the moral precepts, whereby man is directed to God and to his neighbour (Q.99.4). The ceremonial and judicial precepts, each being gurative (Q.102.2, Q.104.2), have ceased or been annulled at the coming of Christ (Q.103:3, Q.104:3). Nevertheless, the judicial precepts are gurative in a dierent sense and have been annulled in a dierent way, so that while the observance of the ceremonial precepts is a mortal sin (Q.103.4), the observance of the judicial precepts is not deadly, if understood as a determination of the natural and moral law and not as though they derived their binding force through being institutions of the Old Law (Q.104.2). Aquinas also explains that the determinations of the law must be dierent according to the dierent states of mankind or dierent forms of government under which people may live (Q.104:3). (It would of course be anomalous to seek to apply this last distinction viz forms of government to the very question of whether the constitution of Israel embodied the best form of government) Aquinass discussion in Q.105 must be understood in this context. The constitution of Israel is set forth by Aquinas as an ideal polity strictly in the sense of a divinely inspired determinatio. The application of the enduring principles of natural law to Aquinass own circumstances will depend, therefore, on the extent to which the dierent states of mankind call for dierent determinations. Interestingly, while in other areas (e.g., Q.105.2 ad 14, 10) Aquinas points to relevant dierences in the states of mankind, he makes no such observation in respect of the constitution of Israel in Q.105.1.
222

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

217

it is at this point critical to the wider argument I am making in this paper that Aquinas alludes to texts in the Old Testament in which the idea of a political community being compounded out of constituent communities actually shapes the theory of government of the wider political community as a whole.223 Aquinas says:
And this was established by the Divine Law. For Moses and his successors governed the people in such a way that each of them was ruler over all [quasi singulariter omnibus principantes]; which was a kind of monarchy. Moreover, seventy-two men were chosen, who were elders in virtue: for it is written [Deuteronomy 1:15] I took out of your tribes wise and honourable, and appointed them rulers: so that there was an element of aristocracy. But it was a democratic government in so far as the rulers were elected from all the people; for it is written [Exodus 18:21]: provide out of all the people wise men, etc; and, again, in so far as they were elected by the people; wherefore it is written [Deuteronomy 1:13]: let me have from among you wise men, etc. Consequently it is evident that the ordering of the rulers was well provided for by the Law.224

Aquinas thus defends the constitution of Israel in terms that make it a model of the best form of government.225 In this respect, the critical reference is to the 72 elders (septuaginta duo seniores), chosen from among the twelve tribes.226 In his discussion, Aquinas places the emphasis on the wisdom and nobility of the elders. There were only a few of them, and they were chosen according to their virtue: an element of aristocracy,
See Schall, The Right Order of Polity and Economy, who argues that Aquinas understood the revelation contained in the Old Law to provide an illumination of philosophical questions which could not be completely addressed by philosophers on the basis of reason alone. 224 ST, I-II, 105.1 res. 225 John Kayser and Ronald Lettieri, Aquinass Regimen Bene Commixtum and the Medieval Critique of Classical Republicanism, The Thomist 46 (1982): 195, 212214, point out that in looking to biblical Israel, rather than the Roman republic, Aquinas made a decisive break with the Polybian tradition. However, their argument is overstated in one important particular: while Aquinas is certainly dismissive of the Roman republic in De Regno, I.5.15 [3033], he undertakes a similar diagnosis of the Hebrew polity in I.5.6 [34]. 226 The Vulgate translation of the text from Deuteronomy 1:15 quoted by Aquinas in ST, I-II, 105.1 res., reads: tuli de vestries tribubus viros sapientes et nobiles, et constitui eos princepes.
223

218

NICHOLAS ARONEY

Aquinas concludes. Virtue, however, was not the only criterion that shaped the choice of elders. The passage also implies that the number of elders chosen (72) was a multiple of the number of tribes (12).227 The suggestion is that each tribe would have had six elders which, in a sense, represented it within the government of the nation.228 Ideally, the most wise and suitable candidates in each tribe would have been chosen. But it would not have been a matter simply of choosing those most wise and suitable across the entire nation, without regard to the tribes and other units of which it was composed.229 Does this imply that that the best constitution will be a mixed regime in which the entire political community (e.g., a kingdom, a province or an empire) is composed of a plurality of constituent units (e.g., tribes, cities or provinces, as the case may be), each of which share in the government of the political community as a whole? In his Commentary on the Gospel of St. Luke, Aquinas assembles a series of patristic and early medieval glosses on the passage in Luke 10:1 in which Jesus sent 72 disciples ahead of him into every city where He was about to go.230
Some manuscripts refer to 70, rather than 72, elders a fact which Aquinas recognizes (ST I-II, 105.1 arg. 1: congrega mihi septuaginta viros de senioribus Israel). See Exodus 24:1, 9; Numbers 11:16, 24-5; and compare Luke 10:1. 228 On the idea of representation of the tribes, see Joseph Baumgarten, The Doudecimal Courts of Qumran, Revelation, and the Sanhedrin, Journal of Biblical Literature 95 (1976): 59, 7576, citing various rabbinic interpretations of the relevant texts. 229 The biblical texts also refer to rulers over thousands, hundreds, fties and tens (tribunos et centuriones et quinquagenarios et decanos). See Exodus 18:21; Deuteronomy 1:15. Exodus 18:2122 is cited by Ptolemy of Lucca, De Regimine Principum (Blythe ed.), IV.27.5 and compared to the division of the Jews under Judas Maccabeus into groups led by tribunes, centurions, pentacontarchs, and decurions (I Maccabees 3:55). For the idea of Israel as a kind of tribal confederation, see John Bright, A History of Israel (Philadelphia: The Westminister Press, 1959), 42; Martin Noth, Israel as the Confederation of the Twelve Tribes, in The History of Israel (New York: Harper and Row, 1958); Daniel Elazar, Covenant and Polity in Biblical Israel: Biblical Foundations and Jewish Expressions (New Brunswick: Transaction Publishers, 1995). 230 In St. Luke 10:1 there is again a textual variation between the numbers 70 and 72, but Aquinas refers only to 72.
227

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

219

The commentaries refer to the sending of the 12 apostles in Luke 9 and associate the 12 apostles with the 12 tribes of Israel. They also associate the 72 disciples with the 72 elders of Israel. Moreover, the 12 apostles are said to represent bishops in the church, just as the 72 disciples represent parish priests.231 Essentially the same observations are repeated by Aquinas in Contra impugnantes, and this time with practical, institutional implications explicitly in view. The twelve apostles represent bishops, Aquinas says, the 72 disciples represent parish priests, and the 72 elders given as assistants to Moses are compared to priests, and thus to the 72 disciples.232 Given his concern to defend the establishment of the religious orders by papal authority, Aquinas is very careful in Contra impugnantes to dene the respective spheres of jurisdiction exercised by the pope within the universal church, bishops within their dioceses and priests within their parishes.233 However, although the establishment of the religious orders by papal decree is defended,234 the pope is not said to be an absolute ruler. The pope, Aquinas says, does not have power to alter the canonical scriptures of the apostles and prophets that are fundamental to the faith of the church (non potest destruere canonicam Scripturam apostolorum et prophetarum, quae est ecclesiasticae dei fundamentum).235 Nor does the pope have authority to alter any statutes of the holy fathers (statuta sanctorum patrum) which are of divine right (iure divino), namely the articles of the faith formulated by the universal councils of the church (articuli dei, qui determinati sunt per Concilia).236 Aquinas even appears to accept the proposition that the pope cannot overturn or alter

Expositio in Lucam, A. Guarenti (ed.), (2nd edn. Taurini-Romae: Marietti, 1953), X.1. 232 Impugn., II.3, arg. 5, contra, ad 5 (Proctor, Apology, I.4, pp. 98, 112, 127). 233 Impugn., II.3, arg. 10, 1820, 25, contra, ad 10, 18, 2022, 25 (Proctor, Apology, I.4, pp. 99, 1024, 10625, 129, 134, 1367, 139). Compare ST, III (Supplement), 26.3, 35.5, 37.1, 40.6. 234 Impugn., II.3, contra, ad 5 (Proctor, Apology, I.4, pp. 10625, 127). 235 Impugn., II.3, ad 24 (Proctor, Apology, I.4, p. 139). 236 Impugn., II.3, ad 23 (Proctor, Apology, I.4, p. 138).

231

220

NICHOLAS ARONEY

the regular ecclesiastical hierarchy, as this is divinely instituted (ecclesiasticam hierarchiam divinatus ordinatam).237 The suggestion in these texts seems to be that just as the best constitution for Israel required a body of seventy-two elders elected from among the twelve tribes, so the best constitution for the Church entails a graded hierarchy of pope, bishops and priests, each exercising authority within their respective jurisdictions, but ultimately subject to the fundamentals of the faith, as determined by church councils in which the bishops of the dioceses, the archbishops of the provinces and the pope on behalf of the entire church, were represented. In making such connections, Aquinas appears to have laid the groundwork for the view that the best form of government might deliberately allow for the representation of the corporate units of which the entire polity is composed. In the Summa Theologiae, the idea of a political community governed by a king and a representative council of the constituent units (tribes, cities or provinces) seems to be implied. In the Commentary on St. Luke and Contra impugnantes, the application of this principle to the church is also suggested. Aquinass best constitution, therefore, is indeed a mixture of monarchy, aristocracy and democracy, but at the same time it is a constitution in which the entire polity is composed of constituent elements (families, neighbourhoods, cities and provinces) that are in some respects self-governing, and in other respects participate in the government of the polity as a whole.
V. CONCLUSION: AFTER AQUINAS

In contemporary Roman Catholic social theory, the idea of subsidiarity suggests a social order in which there is a multiplicity of communities (families, corporations, localities) that

Impugn., II.3, arg. 28, ad 28 (Proctor, Apology, I.4, pp. 106, 141). However, Aquinas arms, of course, the power of the pope to institute a special order of preachers that is not part of the regular hierarchy.

237

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

221

mediate between the individual and the state.238 From what has been seen in this article, the roots of this idea are certainly to be found within Thomas Aquinas. Many have doubted, however, whether the same could be said for Aquinass role in the later development of federal ideas. Aquinass political thought, it is said, is dominated by the idea of hierarchy, and hierarchy is very dierent from federalism. And yet, as has been argued in this article, Aquinas took signicant steps away from Aristotles unitary conception of the individual city-state as the political community, expanding the analysis of the political community to include the categories of neighbourhood, city and province, and introducing the corresponding ecclesiastical categories of parish, diocese and archdiocese.239 While each of these had to be understood as incorporated within the overarching unity of empire and church, Aquinas very clearly envisaged them as exercising degrees of self-government, and in his treatment of the best constitution opened up the idea that the ideal government of the entire political community would be a mixed constitution in which representatives of the cities and provinces would participate. Now it is true that Aquinas did not make this last point explicit: that was a task taken up by later writers. But these later writers very clearly relied upon the formative steps rst taken by Aquinas. Space does not permit a detailed examination of this development of political (and ecclesiastical) ideas,
Thus in Catholic social thought, the principle of subsidiarity applies not simply to political institutions and relationships such as the relationship between the European Union and its Member States but also to the many other social institutions and associations which constitute the pluriform nature of human community. As such, Catholic social theory presupposes an organically pluralistic society of hierarchically ordered communities: Joan Lockwood ODonovan, Subsidiarity and Political Authority in Theological Perspective, in Oliver ODonovan and Joan Lockwood ODonovan (eds.), Bonds of Imperfection: Christian Politics, Past and Present (Grand Rapids: Eerdmans, 2004), p. 228. 239 For a similar argument, comparing the singular and indivisible citystate of Aristotle to the plurality of jurisdictions recognized by Marsiglio of Padua, see Cary Nederman, Aristotle as Authority: Alternative Aristotelian Sources of Late Medieval Political Theory, History of European Ideas 8(1) (1987): 31.
238

222

NICHOLAS ARONEY

but brief mention can be made of the contribution of John of Paris, Nicholas of Cues and Johannes Althusius to this development. John of Paris (c. 12551306), one of Aquinass most important disciples, set forth in De potestate regia et papali a very detailed treatment of church and state which covered their distinct origins, jurisdictions, powers and relationships.240 Like Aquinas before him,241 John distinguishes between matters of order and matters of jurisdiction. The former concern the spiritual functions of the priesthood and episcopacy, whereas the latter deal with the function of judgment within particular spheres of the church.242 The jurisdiction of an archbishop, he says, extends to the government of an entire province, just as the jurisdiction of a primate extends to an entire kingdom, and the jurisdiction of the pope is universal.243 The pope as well as the bishops are vicars of Christ and have the authority given to the apostles; the only dierence, says John, is that the popes

De potestate regia et papali (c. 1302). I have used J. A. Watt (trans.), John of Paris: On Royal and Papal Power (Toronto: Pontical Institute of Medieval Studies, 1971). John distinguishes the characteristic diversity of secular kingdoms and the fundamental unity that characterises the Church (despite the variety of dioceses and communities of which the Church composed): De potestate regia et papali, III, 8487. [I]t is better, he says, that many should rule in many kingdoms than one alone should rule the whole world: De potestate regia et papali, XXI, 227. 241 See Aquinas, Impugn., II.3, contra (Proctor, Apology, I.4). See also Blythe, Mixed Constitution, 115117, who points out that in Ptolemy of Luccas Determinatio Compendiosa, church and state are seen as completely analogous with respect to their organization continuing, he says, a process of assimilation begun by Thomas Aquinas and the canonists, and extended by John of Paris and William of Ockham. 242 De potestate regia et papali, XXV, 255. 243 In distinguishing between ordination to priesthood, and the grant of jurisdiction, John recognizes degrees of jurisdiction going with the episcopate: an archbishop in his province, a primate in a kingdom, a pope in the whole church. Ordination to priesthood cannot be taken away, he says, but the jurisdiction of an archbishop or pope can be removed: De potestate regia et papali, XXV, 251.

240

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

223

power, as successor of Peter and head of the church, is universal, while the bishops power is limited to his diocese.244 This much, of course, is not particularly original. However, John also builds upon and extends the analysis of the polity of Israel which he had learnt from Thomas Aquinas. He considers that a mixed constitution, which is best according to Aristotle, had been instituted prior to the monarchy in Israel. During the period of the judges, a single person ruled over all (i.e. Moses and Joshua), but this was not a pure royal constitution rather, it was mixed with aristocracy, in which the many rule according to virtue, and it was also mixed with democracy, that is, with rule by the people. The element of aristocracy entailed, he says, government by the best people according to virtue, because under the one ruler 72 elders were chosen. Likewise, there was an element of democracy because the 72 elders were chosen from and by all the people. John concludes that this was the best mixture precisely because everyone had a place and a share in the constitution.245 Following Aquinas, John also interprets the government of ancient Israel to be a kind of mixed constitution, but he very explicitly considers that the period of the judges set forth the best constitution, favouring it over the period of the monarchy.246 Furthermore, John recommends the mixed constitution of Israel as a model for the government of the church, and crucially he interprets the reference in Deuteronomy 1:15 to the 72 elders as implying the need for specically provincial representation within the wider councils of the church. In Johns words:

De potestate regia et papali, X, 119. Compare Aquinas, Impugn., II.3, arg. 10, 1820, 25, contra, ad 10, 18, 2022, 25 (Proctor, Apology, I.4, pp. 99, 1024, 10625, 129, 134, 1367, 139). 245 De potestate regia et papali, XIX, 205207. 246 John says that God gave the Israelites a mixed constitution because too much power in the king leads to tyranny. However, God gave them a monarchy when they requested one as if in displeasure, because they were rejecting a constitution more benecial to them: De potestate regia et papali, XIX, 207.

244

224

NICHOLAS ARONEY

It would certainly be the best constitution for the Church if, under the one Pope, many were chosen by and from each province, so that all would participate in some way in the government of the Church.247

The signicance of Johns reference lies in the recognition that the constituent parts of the ecclesiastical community should shape the system of government adopted thereunder. The biblical text refers to the election of elders according to or from each tribe. Under the inuence of Aristotle, both Aquinas and John argue that the system was in this respect aristocratic. What John of Paris explicitly adds to the analysis is the idea of corporate representation, specically the representation of the provinces in the government of the church as a whole.

De potestate regia et papali, XIX, 207 (emphasis added). The Latin is emphatic about the role of the provinces: eligerentur plures ab omni provincia et de omni provincia (F. Bleienstein (ed.), Tractatus de Potestate Regia et Papali (Stuttgart: E. Klett, 1969), XIX, 175, cited in Blythe, Mixed Constitution, 150). Compare Pierre DAilly, Tractatus de Ecclesiae, Concilii Generalis, Romani ponticis, et Cardinalium Auctoritate, col. 946, who, having drawn attention to the 72 elders chosen from among the people (septuginta duo seniors eligebantur de omni populo), says that in the Church many should be chosen from and by each province (quod esset optimum regimen Ecclesiae, si sub uno Papa eligerentur plures de omni, et ab omni Provincia), and that these elders should correspond to the cardinals, whose function is to temper the power of the pope (et tales deberent esse Cardinales, qui cum Papa et sub eo Ecclesiam regerent, et usum plentitudinis Potestatis temperarent) (cited in Blythe, Mixed Constitution, 246). See, likewise, Jean Gerson, De Potestate Ecclesiastica (Oeuvres Completes (Paris: e & Cie, 1973), VI, 224225), who underscores the idea that the Descle rectors were chosen from the people and from single tribes (Maneat ecclesiastica politia optimo regimine; quale fuit sub Moyse gubernata; quoniam mixta fuit ac triplici politia: regali in Moyse, aristocratica in lxxii senioribus, et timocratica dum de populo et singulis tribubus sub Moyse rectores sumebantur) (cited in Blythe, Mixed Constitution, 251 and in Carlyle, History of Mediaeval Political Theory, VI, 162).

247

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

225

Later writers, such as Nicolas of Cues (14041464)248 and Johannes Althusius (15571638),249 would on similar grounds formulate sophisticated theories of church government and political order which more fully integrated the idea of the best constitution with concepts of corporate representation and jurisdictional diversity. Nicolas of Cues, for example, closely develops the idea of the corporate representation of the provinces in the councils of the church, extending the analysis to the representative roles of priests, bishops, archbishops, metropolitans and pope, each within their respective synods at a parochial, diocesan, metropolitan, provincial and universal level,250 and envisaging a similar representative arrangement of governors, counts, marquesses, dukes, kings and emperor in the temporal sphere.251 In both spheres, therefore, Nicolas insists on the election of rulers by representatives of the constituent jurisdictions, such as the election of the pope by the cardinals as

De Concordantia Catholica (1433). See Paul Sigmund (ed.), A Catholic Concordance (Cambridge: Cambridge University Press, 1991); Paul Sigmund, Nicholas of Cusa and Medieval Political Thought (Cambridge, MA: Harvard University Press, 1963); Blythe, Mixed Constitution, 253258. 249 Politica Methodice Digesta et exemplis sacris et profanis illustrata (1603), cited at note 20 above. See also Otto von Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien (Breslau, 1880), translated by Bernard Freyd as The Development of Political Theory (London: Allen & Unwin, 1939). 250 Concordantia Catholica, II.1.71. 251 Concordantia Catholica, III.1.292; III.7:350; III.12:3778; III.25.469 72; III:35.527. Although see III.28.491.

248

226

NICHOLAS ARONEY

representatives of the provinces252 and the election of the emperor by the princely electors within the empire.253 Johannes Althusius, writing centuries later, agrees with all of these writers that a mixed constitution is best, but takes the point even further by deciding that a discussion of the different kinds of constitution must be postponed to the prior question of the formation of the commonwealth or realm, composed as it is from its constituent villages, cities and provinces.254 A mixed government, combining elements of monarchy, aristocracy and democracy, is best, but the democratic and aristocratic elements, he argues, are the assemblies and estates of the realm, together with the intermediate magistrates.255 The turning point for these later writers lay in the emphasis they gave to the variety of jurisdictions that typied the spiritual and temporal orders of the late medieval and early modern societies in which they lived. Although they continued to analyse political constitutions along Aristotelian lines, the analysis was postponed, perhaps even subordinated, to the idea of a society consisting of a plurality of corporate groups,
Concordantia Catholica, II.18.1635. Concordantia Catholica, III.4:325, 332, 338. Nicolas simultaneously follows the classical classication of the types of government into monarchical, aristocratic and democratic (III, Preface, 279). However, relying principally on canon law, as well as glosses on the election of deacons recorded in the Acts of the Apostles (II:32.234), he argues that a well tempered monarchy is one in which the king is elected by nobles who represent everyone with their consent (III, Preface, 283). Indeed, tyranny, for Nicolas, is usurped rule, and usurpers are those who are neither asked to rule nor elected: III.4:330. Election by corporate representatives is the critical factor. 254 Althusius, Politica, chapters IIVIII. 255 Althusius, Politica, chapter XXXIX. See, likewise, Junius Brutus (pseudonym), Vindiciae contra tyrannos (c. 1579), I, 32: such were the 70 ancients in the kingdom of Israel, amongst whom the high priest was as it were president, those seventy being rst chosen by six out of each tribe ... then the heads or governors of provinces. In like manner the judges and provosts of towns, captains of thousands, the centurions and others ... Of this rank there are in every well governed kingdom, the princes, the ocers of the crown, the peers, the greatest and most notable lords, the deputies of provinces, of whom the ordinary body of the estate is composed, or the parliament or the diet, or other assembly ... .
253 252

SUBSIDIARITY, FEDERALISM AND THE BEST CONSTITUTION

227

successively represented in the governing institutions of the wider groupings of which they were a part. Aquinas recognized, and generally endorsed, much of this plurality in unity. Aristotle could be adapted to medieval conditions, he found, through the ingenious expedient of using concrete references (such as civitas, regnum and provincia) to stand for the abstract idea of the communitas perfecta. When writing about the church, Aquinas was likewise ready to give due regard to the various orders within the ecclesiastical hierarchy (priest, bishop and pope) as well as the degrees of community that they represented (parochial, diocesan and universal). While he did not draw the conclusion explicitly, the overall picture he composed was one of a plurality of social, religious and political communities, integrated into a coherent whole. For this reason, when Aquinas came to discuss the Aristotelian ideal of the mixed constitution, it was not just a mixture of monarchy, aristocracy and democracy within a unitary political society that was in view. An ideal monarch must be made subject to law, Aquinas thought, and this called for a tempering of the kings authority, rstly through election, secondly through the imposition of constitutional limits, and thirdly by the admixture of the principles of aristocracy and democracy as mechanisms by which those limits might be enforced. But how, it might be asked, could the elements of aristocracy and democracy meaningfully be integrated into a political community on the scale of a kingdom or empire? The emergent practice of corporate representation suggested an answer. Rather than call for the direct political participation of all the citizens of the realm, a share in government might be given to those who could claim to represent the constituent communities (cities and provinces) of which the entire political community was composed. Clearly enough, the early development of medieval representative institutions cannot be compared to the extensive democratisation of later centuries. However, within the church, and particularly within religious orders of Aquinass own day, a very thorough-going representative system was readily at hand.

228

NICHOLAS ARONEY

In this context, when Aquinas came to the question whether the Old Law in fact prescribed the best constitution for the people of Israel, he founded his argument on biblical texts which, for John of Paris and those who followed, readily suggested that in both spiritual and temporal affairs, the best constitution would be one in which representatives are chosen by and from each smaller community of which the larger is composed, so that all can participate in the government of the whole. Thus, when Aquinas afrmed that the Old Law exemplied the best constitution, he explicitly assessed the Old Law according the Aristotelian ideal of the mixed constitution within a single, unitary city-state. However, the texts of the Old Law which Aquinas cited turned out to suggest a best constitution of a rather different kind: a multiplicity of tempered monarchies, subsidiary in nature and federal in structure.
Senior Lecturer in Law TC Beirne School of Law The University of Queensland St Lucia, Qld, 4072 Australia E-mail: n.aroney@law.uq.edu.au