Brian Tierney
Ever since Gierke published his massive work on medieval concepts of corporatism and community this area of thought has interested historians of political theory. Reflection on medieval corporatism can lead to radically opposed views concerning a major problem in the field—the degree of continuity (or discontinuity) between medieval and early modern constitutional thought.1 Some see the medieval law of corporation structure as a necessary foundation for seventeenth-century theories of the state. James Brundage, for instance, in his valuable book on medieval canon law, observed that the basic elements of parliamentary constitutionalism emerged “out of the questions and answers that medieval corporation theory suggested.”2 But others see a sharp contrast between medieval communitarianism and the “atomistic individualism” that they discern in the age of Hobbes and Locke. One scholar can write that “some of the main configurations of political thought in modern Europe were laid down before 1450.”3 Another maintains that “human consciousness underwent a radical transformation” in the seventeenth century and that this led on to a “decisive break” with premodern ideas about law and government.4
In these discussions the work of John Locke holds a pivotal place. His doctrine of natural law continued a late medieval tradition of thought5 but his political ideas—unlike those of Hobbes—found a wide acceptance in the age of the Enlightenment, not least among the American founding fathers. To understand the development from medieval to modern it is therefore especially important to place Locke correctly in relation to earlier traditions of thought. In the following discussion I want to consider a particular argument for discontinuity that seems to me questionable—the assertion that Locke made a sharp break with medieval ways of thinking when he substituted the idea of “individualized consent” to government for the “corporate consent” of medieval thinkers. A related theme to be considered concerns Locke’s teaching about a primordial state of nature from which political societies emerged by individual consent. This too has been seen by some scholars as an innovatory doctrine.
The argument about individual and corporate consent has been expressed in various ways by scholars writing from different standpoints. Cary Nederman, arguing against the view that fifteenth-century conciliarism significantly influenced later constitutional thought, observed that modern constitutionalism is characterized by “individualized free consent to rulers and their official deeds,” and that by no stretch of the imagination could a medieval election be understood in this way—“it was rather a ‘unanimous’ act of the community, the collectivity speaking with one voice.”6 James Tully found a radical new individualism in Locke’s teaching that individuals in a state of nature could act as executors of the law of nature. He concluded from this that, for Locke, “political power is a natural property of individuals” and that Locke “thus repudiates 500 years of elite political holism.”7 Addressing the same theme in a broader context and from a communitarian standpoint, Charles Taylor discussed the “new political atomism” of Locke and his contemporaries. In earlier thought, Taylor wrote, it was understood that a community could establish a government by consent, but the existence of the community was taken for granted. In the seventeenth century, on the other hand, the existence of the community itself had to be explained by the prior consent of individuals.8
In a particularly interesting study, Patrick Riley mentioned the existence of medieval ideas about contracts between rulers and peoples, but he too found a break with the past in early modern theories of individual consent that emphasized the artificial nature of political society and government. With a reference to Locke, he wrote that, in the new way of thinking, “political obligations are derivative from the consent of those who create a government (sometimes a society),” so that legitimate government was formed by “a voluntary individual act, or rather a concatenation of voluntary individual acts.”9
The argument that Lockean individual consent made a break with medieval concepts of community or corporate consent has been accepted even by scholars who maintain that, in other respects, there were significant continuities between medieval and early modern thought. Scott Swanson traced in detail the early sources of Locke’s doctrine about a natural right to the means of subsistence from the twelfth century onward but he too saw an innovation in Locke’s theory of consent. Whereas Locke required the consent of individual persons, Swanson wrote, in the medieval writers the notion of consent was more corporate.10 Paul Sigmund, comparing Nicholas Cusanus with Locke, similarly wrote that, in the earlier work, consent was given “by corporate groups rather than by individuals in a state of nature as in Locke.”11 Francis Oakley made the same point in several of his articles that refer to the corporatism or holism of medieval thought. There was indeed a medieval legacy of popular sovereignty, contract and consent, Oakley noted (and he himself has written excellently about it), but the consent was the consent of communities, not the assent of a “concatenation of free and equal individuals.” The new strain of individualism, according to this argument, was first introduced into the constitutional tradition by Locke.12
Michael Zuckert added a new strand of thought to the discussion by emphasizing the other theme that I mentioned, Locke’s teaching concerning the existence of a prepolitical state of nature. Like Tully, he emphasized Locke’s argument that the right of individuals to execute the law of nature was the source of political power and so made a major break with preceding ideas. But Zuckert went further. He argued that the very existence of a Lockean state of nature was alien to premodern thought. For Locke a state of nature was a prepolitical state of affairs where humans were ruled only by the law of nature; but, Zuckert argued, medieval writers could not have conceived of such a condition. In their world of thought a people living under natural law would necessarily have been living in a political society because “natural law mandated and provided for political life.” Hence, if we could ask Thomas Aquinas about the state of nature, “Thomas would reply that there is no such thing; government is natural.” So here again Locke made a sharp break with premodern ways of thought.13 The argument is evidently complementary to the one about community consent and individual consent that we have considered. If political communities had always been natural to man—if their existence had always been taken for granted— then no one could have conceived of them as created by the will and artifice of consenting individuals as in Locke.
The views considered so far are not always in agreement with one another and not always transparent in themselves. The discussions about will and consent refer sometimes to the institution of a political society, sometimes to the establishment of a government, sometimes to both, and it is not always clear which meaning is intended. The distinction between individual consent and corporate consent ignores Locke’s own treatment of corporate consent (to be considered later). And it is indeed difficult to understand what is meant by the statement that modern constitutionalism is characterized by “individualized free consent to rulers and their deeds.” Modern tax protesters who claim a right of individualized consent to tax laws get short shrift from the judges.
In spite of these difficulties, three specific lines of argument that I want to criticize emerge from the views that have been considered:
1. that in medieval thought political society was always conceived of as natural and so not as a work of human artifice brought into existence by individual acts of choice and consent in a prepolitical state of nature;
2. that medieval corporate communities were conceived of in a holistic fashion that contrasts with Locke’s individualism;
3. that Locke made a major break with the past in attributing political power to individuals. The first two arguments seem to me mistaken, the last one questionable.
I want first to consider the fundamental argument that, for Locke, political society was a work of human artifice, for medievals a product of nature and natural law, and that the two ways of thinking were incompatible with one another. At the outset there is a preliminary point to be made about the social and religious contexts of the early modern and medieval worlds. Historians of social contract theories often note that, in the seventeenth century, many separatist religious communities were being formed by the voluntary association of individuals and that, by analogy, the political community could readily be conceived of in the same way. In an influential article, Höpfl and Thompson made this point by quoting the seventeenth-century separatist Henry Jacob.14 He wrote that a church was constituted:
By a free mutuall consent of Believers joyning and covenanting to live as members of a holy society together … By such free mutuall consent also all Civil perfect Corporations did first begin.
The point often overlooked is that the key words are the last ones. For centuries past individuals had been coming together, joining with one another to form an endless variety of religious and secular corporate communities— communes, guilds, universities, collegiate churches, monastic houses, confraternities. In the case of a commune a governing authority was brought into existence by “conjuration,” by a “swearing together” of the individual members. And in medieval thought long before the seventeenth century the corporation was often taken as a model for large-scale government in church and state.15 In such a world it was not difficult to envisage a first emergence of lawful government from a prepolitical condition by a voluntary association or consent of individuals.
The opposite point of view, developed by Zuckert, that the Lockean idea of a prepolitical state was alien to premodern thought, goes back to some remarks of Leo Strauss. He observed that Locke’s entire political teaching assumed the existence of a state of nature but added that this assumption was “wholly alien to the Bible.” And that it “made a break … with the traditional natural law doctrine.” Strauss’s remark has given rise to some odd formulations among later writers who were influenced by his work. According to Walter Berns the very idea of natural rights in a state of nature is incompatible with Christian thought because the idea of a state of nature itself is alien to the Bible. Ernest Fortin, also discussing the idea of a state of nature, wrote that, “If anything its implications are profoundly atheistic.”16
On the face of it this seems merely wrong-headed. Pufendorf, for instance, wrote at some length about the state of nature and so far no one has accused him of being an atheist. Zuckert’s argument that earlier writers could not envisage a prepolitical state of nature because they took for granted the “naturalness” of political life seems more reasonable. This argument, however, ignores the whole Augustinian strain in medieval thought. For Augustine, government was not natural to man but was rather a human contrivance made necessary by the criminal proclivities of fallen humanity—a view echoed by Locke when he wrote that political society was made necessary by “the corruption and wickedness of degenerate men.” Even applied to medieval Aristotelians, Zuckert’s argument about a state of nature (or lack of it) seems flawed—it involves an equivocation in the use of the word nature that was already pointed out by Pufendorf, writing a few years before Locke. In criticizing Hobbes, Pufendorf defended his own use of the term “state of nature” by explaining that the phrase could have two meanings; it could refer either to a primordial condition of humankind or to the perfected society of the polis, the kind of society in which human nature could best flourish.17 Evidently medieval Aristotelians did not believe that a prepolitical condition was natural in the second sense of the term. But then neither did Locke. His “natural” meant primordial, and for him too, men could find “peace, safety and public good” only in a political society. He could even write that it was “natural” for people to “put themselves under a Frame of Government.”18 Moreover, as Pufendorf went on to argue, the idea that a political society was natural in the Aristotelian sense did not preclude the possibility that it could be brought into existence only by human will and choice.19 Zuckert’s argument assumes that, since natural law mandated political life, believers in natural law must always have lived in political communities. But, already in the thirteenth century, Giles of Rome had pointed out that, although man was by nature a political animal, many people did not in fact live in political societies.20 Aristotle himself, of course, took this for granted.
Medieval people were familiar with the idea of a prepolitical state of nature from various sources; from classical myths of a Golden Age and a subsequent decline into wickedness that could be associated with the Christian story of the Garden of Eden; from Augustine’s Two Cities; and from Cicero’s account of government as first instituted by agreement among people who had previously lived a scattered life. And, even if the state of nature as Locke understood the term—a time when people lived with only the law of nature to guide them— was alien to the Bible, it was not alien to that other great fount of natural law thinking, the Decretum of Gratian. In that work generations of law students read that natural law was coeval with the human race and that humans lived by that law alone until the introduction of customary laws. According to Gratian’s account this happened at the time when Cain built a city and “people gathered together as one and began to live together.”21 An influential text of the Decretum mentioned several characteristics of this primordial law of nature that were still commonly discussed in the seventeenth century; they included a right of self-defense, common ownership of property and universal freedom.22
To continue the argument, we need to consider some of the ways in which medieval people envisaged the emergence of government from this primordial state of affairs. Gratian wrote that natural law had existed “from the beginning of the rational creature.” His commentators often emphasized the word rational and wrote that natural law was a law of reason or a force of reason in man. So, from the beginning of the juristic renaissance of the twelfth century, natural law was understood as referring both to a primordial condition of humankind and to the rational faculty that showed humans how to escape from that condition and achieve a better way of life. How this came about was described by one of the first commentators on Gratian, the canonist Rufinus (c. 1160). He wrote that after the Fall humans lived a scattered and savage life, but that they still retained enough of their natural faculties to seek for themselves a way of life better than that of the brute beasts. So they came together and entered into “covenants of concord” and “secure compacts” with one other, and by thus agreeing together they established the principles of a common law, the ius gentium.23 The text provides an early account of humans emerging from a state of nature. The existence of a lawful society was not taken for granted; it had to be created by covenants and compacts entered into by individuals.
In mid-thirteenth century Hostiensis also wrote that the descendants of Adam lived according to the law of nature until Cain built his city. About the same time the canonist pope, Innocent IV, speculated about how government could have come to exist in the first place given that all men were by nature free. His text is interesting because he mentioned the three possibilities that were still being debated in the seventeenth century—direct divine right, patriarchy, and popular election.24
Among the theologians, Duns Scotus was much concerned with the principle of individuation in his metaphysics and he also presented an account of political authority as established by individual persons. At one point in his commentary on the Sentences he distinguished between despotic or tyrannical rule and “political or natural” rule;25 but in another discussion he explained that the “natural” political rule was brought into existence by human choice. Duns distinguished here between paternal and political rulership, arguing that paternal authority was established by natural law but that political authority was derived from election and consent. Then he presented an interesting thought experiment to explain the origin of government. He envisaged a group of unrelated strangers coming together to build a city. There would be no pre-existing form of government among them, neither patriarchal nor political, but they could consent together to submit themselves either to the whole community or to a ruler whom they would elect.26 Here again the argument began from a collection of individuals who came together voluntarily to establish a political authority. At a later point, referring to legislation on property rights, Duns wrote, “I suppose in an act of the community the consent of each one to be included,” since each had agreed to be bound by the just laws of the community.27
Early in the fourteenth century the Dominican master-general Hervaeus Natalis also considered the origin of government. He first distinguished between different kinds of authority rather in the manner of Locke at the beginning of the Second Treatise. “We are not speaking of private jurisdiction,” Hervaeus wrote, “such as a father has over his son, a master over his slave, a husband over his wife, but of political or public jurisdiction.” This jurisdiction did not derive its existence from the very nature of things because by nature all were equal; it could not arise from violent usurpation because violent possession conferred no right; and so, the author concluded, licit jurisdiction could be derived only from consent.28 Hervaeus did not discuss corporate or individual consent here, but in another work he wrote that “no person or community” could rightly be obliged except by their own consent.29 Hervaeus also distinguished between the institution of political power as such and its exercise by a ruler. “To institute such a power,” he wrote, “is to ordain … that there be a power in the commonwealth such that it can legislate and judge.” This power, he explained, could be brought into existence before it was conferred on a ruler.30
William of Ockham envisaged a “middle time” after the Fall but before the institution of government and private property—his version of a state of nature.31 In typical medieval fashion he held that legitimate government must be based on consent because “by nature all mortals (are) born free and not subject to anyone else,” and “only by an express act of will can one subject oneself to the rule of another.”32 Ockham usually wrote that government was instituted by a community or populus but, in keeping with the tenets of his nominalist philosophy, he asserted emphatically that any community consisted only of the individuals who composed it.33 He also held, arguing from a text of canonistic corporation law, that no community could confer absolute power on a ruler because the community itself did not have absolute power over its individual members.34
Evidently, even after Aristotle’s Politics had become known in the West, medieval thinkers did not simply abandon the ideas about a conventional origin of political authority that they had derived from other ancient sources. Instead they wove those ideas into new syntheses, often insisting that the actual creation of a political society was a work of human artifice. Giles of Rome wrote that, although a political society or civitas was natural to man in one sense, it could be brought into existence only by human industry and effort and art. He explained that the “nature” involved was not ineluctable; the polis was not natural in the same way that it was natural for fire to heat or for a stone to fall.35 Marsilius of Padua echoed Cicero when he described how “men originally came together to establish a civil community and civil law.”36 John of Paris quoted both Aristotle and Cicero in discussing the origin of a political community. He first wrote that “man is a civil and political animal, as is said in Book I of the Politics,” but then added that humans at first lived a scattered life and had to be brought together “by persuasive arguments” to live “an ordered life in common under one ruler, as Cicero says.”37
Other writers emphasized the role of human reason and will in instituting authority either in a ruler or in a community. Durand of St Pourçain explained that God himself did not directly appoint kings over men (or only very rarely); instead he gave humans reason through which they could discern the necessity and fittingness of instituting rulers.38 In discussing the origin of monarchy, Engelbert of Admont gave examples from nature. The lion was king of the beasts, the eagle king of the birds. One might expect the argument to conclude that, in the same way, some pre-eminent man was king over all the others. But in fact Engelbert wrote that art and reason imitate nature and that in human society it was through art and reason that kingdoms and kings were instituted.39 A fourteenth-century Tractatus de Legibus argued that if one man excelled all the others it would be natural that he be honored, but not that all be bound to obey him. The institution of a ruling authority, this author insisted, was “not natural but civil.”40 Similarly, Buridan wrote that, although humans had a natural inclination to live in a political society the actual institution of a commonwealth was by “art and choice” or “art and will.”41 He argued in effect that the state was a work of artifice—created by reason reflecting on the needs of human nature. Buridan’s contemporary, the great jurist Bartolus, referred to the community of a city-state as an “artificial man.”42 The view that Locke broke with medieval ways of thinking by treating the state as an artificial construct clearly needs some qualification.
So far I have argued that we can find in preLockean sources examples of individual consent43 and of political society conceived of as a work of human artifice. We need next to recall that Locke’s own doctrine of consent was not entirely individualistic. Anthony Black has indeed observed that Locke’s doctrine on the formation of a political community can be read as a “general application of corporation theory” that Locke knew from Grotius and Pufendorf.44 This suggests that the modern assertion of a disjunction between Lockean individual consent and medieval corporate consent is at best misleading. It may obscure a real relationship between Locke’s political theory and earlier ways of thinking about corporate groups, a relationship of continuity rather than of opposition. To probe this further we need to consider first the element of corporatism in Locke’s argument and then some aspects of medieval corporation law.
There was indeed a strong strain of corporatism in Locke’s work. He explained that a political community first came to exist when a people “incorporated,” and in the subsequent sections of the Second Treatise he used the word incorporate over and over again.45 Locke did not even shrink from deploying the organic imagery that was common in medieval sources. The unity of a political society consisted in its having “one Will,” he wrote, and the members constituted “one coherent living Body.”46 Such language was metaphorical of course but so too it was for medieval authors. The idea of incorporation was essential to Locke’s argument. As he explained, before a group of people incorporated they could act only by the unanimous consent of each separate individual, which would be “next impossible ever to be had.”47 Only after they incorporated could a people act by majority vote to institute a government. Such majority consent, according to Locke, was approved by the law of nature and by reason; but, as Riley pointed out, majority consent was not actually “one’s own” consent.48 Locke’s individual consent came into play only in the first formation of a political community, an idea that was not foreign to medieval thought. Subsequent consent to a government and its acts was precisely corporate consent.
Given all this, it is hard to see why anyone should ever have supposed that Locke presented a teaching on individualized consent that broke with a medieval doctrine of corporate consent. The argument seems to rest on a series of misconceptions about medieval thought. In one such misunderstanding, Locke’s doctrine of consent by a numerical majority (which is taken to be somehow individualistic) is contrasted with the medieval idea of qualified consent—the consent of the maior et sanior pars—of a corporate community (which is taken to be somehow holistic). This is presumably what Tully meant by his reference to “elite holism.” Sigmund made the same point when he contrasted medieval community consent with Locke’s consent by individuals and majorities. Oakley too contrasted qualified consent by the sanior pars of a community with the “egalitarian individualism” of Locke.49 But voting by such a qualified majority was not the universal or even the most common form of medieval procedure. It was a canonistic requirement that applied to canonical elections, and even there Pope Gregory X decreed in 1274 that a two-thirds numerical majority would suffice.50
The more important point is that the civil law required only a simple majority in the conduct of elections and other affairs of corporate communities. According to the Digest, “What is done publicly by a majority is held to be done by all.”51 The principle was widely expounded by the glossators and very commonly adopted by secular communities as the normal way of reaching decisions. Bartolus, for instance, invoked the civil law doctrine of consent by a numerical majority in considering the deliberations of an Italian city council and of the whole corporate community that it represented.52 Even within the church, some religious orders, such as the Franciscans and Dominicans, used simple majority voting.53 The majority consent that we find in Locke had been commonly accepted in theory and practice for centuries before he wrote.
We are left with an assumption—sometimes explicitly stated, sometimes implied—that I think underlies the whole modern argument about medieval corporate consent, an assumption that the medieval way of understanding the life of a corporate community was essentially holistic and so was sharply opposed to Lockean individualism. Zuckert expressed this view when he contrasted the premodern view of Suarez and others, who treated a political community as a “mystical body,” with the later understanding of it as essentially a collection of private individuals. But this is another misunderstanding. In the juristic language inherited by Suarez the term mystical body, when applied to secular communities, was just one of several such legal terms of art that were used to express the idea that a corporate group was indeed in reality only an aggregate of individual persons.54
The idea of a holism inherent in the medieval mentalité was indeed a favorite theme of Gierke. He expounded a doctrine of group personality, derived really from nineteenth-century romanticism, that attributed to communities a group consciousness different from the sum of individual consciousnesses. Gierke thought that the medieval German folk intuitively recognized this real personality of the group; but he also taught that, lamentably, medieval jurists failed to articulate the idea of group personality that he cherished. From Gierke’s point of view they were impenitent individualists.55 And it was this individualist theory of corporate groups, reinforced by late medieval nominalism, that the lawyers passed on to the early modern world.
Medieval jurists did distinguish sharply between a corporate community and a mere crowd of individuals.56 Most importantly for later political theory, a corporate community (but not an unorganized crowd) could make statutes for its members and exercise jurisdiction over them or elect officers with jurisdiction. In medieval juridical thought a corporation was a group of persons who were considered for legal purposes as if they formed a single entity. Thus a corporation could own property, enter into contracts, sue or be sued. But it was not a real person. A corporation could not, for instance, be excommunicated because it had no soul.
We need not enter here into all the modern argument about a “fiction theory” or “realist” theory of corporations. A few well-known texts will serve to illustrate the medieval approach. In mid-thirteenth century Pope Innocent IV wrote that collective nouns like chapter (capitulum) or college (collegium) were “names of law, not of persons.”57 About the same time Accursius, in the ordinary gloss to the Digest, declared more simply and bluntly, “A corporation is nothing but the people who are there.” Early in the fourteenth century Oldradus wrote that, although a corporation was not a true person, nevertheless it had a “fictive person by fiction of the law” (personam fictam fictione iuris).58 A little later Bartolus explained the common opinion of the time.
We should first see whether a corporation is something other than the people of the corporation. Some say that it is not … and so hold all the canonists and philosophers, who maintain that the whole does not differ in reality from the sum of the parts.59
Bartolus acknowledged that this view was true “really and properly” but he went on to point out that it did not express the whole truth since, by a “fiction of the law,” the corporation was treated by jurists as if it were one person. In this way of thinking, a collectivity conceived of as something other than its individual members was a legal fiction; this was a useful and necessary legal device but it did not refer to something that existed in reality. In the later Middle Ages various terms were used to express this common doctrine of the jurists—persona ficta or corpus fictum, corpus mysticum, corpus politicum, corpus imaginarium, corpus intellectuale. A corporation viewed as a single entity was an intellectual construct, an artificial body. And since a corporate body was constituted by its individual members, its consent was expressed through them. As Bartolus’s great pupil Baldus wrote, “Since a college is nothing other than the men who are in the college, so the college consents through these men.”60 Medieval corporate consent was individual consent, the consent of individual members who voted as individuals but who concurred, like Locke’s individuals, in accepting majority decisions.
The jurists’ language persisted into the seventeenth century. Suarez, for instance, used both terms, persona ficta and corpus mysticum, in the same paragraph when discussing corporate groups, and George Lawson, writing a few years before Locke, noted that a political community was “one person moral by fiction of the law … as the Civilians express themselves.”61 For a medieval jurist or a nominalist philosopher only individuals had real existence, but once united into a corporate body or political community they could act as though they constituted a single whole, like “one coherent living body,” as Locke would write.
By the time that Locke wrote, many authors had expressed, with varying degrees of precision and explicitness, theories of social contract and of consent as the ground of legitimate government. In the present context the work of Francisco Suarez is especially interesting because he presented an account of the origin of political power that in some ways closely paralleled that of Locke but that relied overtly on the medieval doctrines of corporation law that were only implicit in Locke’s argument. Suarez too explained the roles of individual consent and corporate consent in the constitution of a government. And he also envisaged a prepolitical state of nature and the existence of natural rights, including a right of self-defense (the greatest of rights according to Suarez).62
In spite of such similarities, the relationship between the work of Suarez and that of Locke is far from clear. A comparison of the two thinkers raises again the problems I mentioned at the outset about the originality of Locke’s individual consent and the continuities or discontinuities between medieval and early modern political thought.
Suarez began his argument by asking how the power to make laws, which he equated with political power, could come to exist among men who were by nature free and not subject to one another. In the various medieval texts that we considered there was no assertion that political power was conferred directly by God either on a community or on a particular ruler (except for some Old Testament examples that were cited as exceptions to the general rule.) In the early modern period, however, theories of divine right had come to be widely accepted. Suarez, like Locke, was dissatisfied with such theories. He considered the argument that God had conferred authority on some supreme prince but rejected it as lacking any basis in reason or authority. Suarez also denied (in a passage that was quoted at length by Locke’s adversary, Filmer) that Adam possessed political authority from the beginning and that it derived from him to later rulers. Adam’s power was domestic, not political, Suarez noted, and he added that, when a political community eventually came to be formed, it was “by the will of all who were assembled therein.”63 Suarez acknowledged, as any Christian writer would, that all power came ultimately from God, but he held that this was true only in the sense that God was the author of human nature. Given the existence of humans as they actually were, the creation of political power could be sufficiently explained by human reason and by individual acts of choice and will.
In explaining how the institution of government actually came about, Suarez returned to the distinction of the medieval jurists between a multitude considered as a mere collection of individuals and considered as an ordered community. In the first case the multitude did not constitute a political body and political power did not inhere in the whole aggregate or in each individual “properly and formally” but only radicaliter, as a root or source or origin. But when the individuals joined together “by special acts of will and consent” to form a political community then a power of self-government inhered in it from its very nature (ex natura rei) or from natural reason.64 This was precisely a case of government instituted by “a concatenation of voluntary individual acts.” Suarez’ point was that no specific act or grant of God was necessary to institute political power among men apart from the initial act of creating human nature.65 Once a political society was constituted it had an inherent power to legislate for its members because the community was brought into being by the will and consent of individuals who agreed to accept its authority. Suarez then went on to explain how the community as a corporate whole could institute a government for itself. He considered the various kinds of government, referring to the standard forms of monarchy, aristocracy, and democracy and the varied types of mixed government. Suarez indicated a preference for some kind of limited or mixed monarchy, but his main point was that the whole matter turned upon human choice and that the ruling power derived its authority from the consent of the people.66
There are evident resemblances between this account and Locke’s teaching on the formation of a political community by consent of the members and the subsequent institution of a government. It would seem reasonable, then, to argue that Suarez, with his heritage of medieval learning, provided an important link in a centuries-old continuing tradition of thought that Locke in his turn inherited. But not everyone would agree. Some scholars see Suarez rather as a late representative of a premodern scholastic tradition that Locke rejected.
There was indeed a significant difference between the two thinkers, a teaching of Locke that has been especially emphasized by Michael Zuckert and James Tully as an important departure from previous teachings. Locke, unlike Suarez, held that each individual in a state of nature could act as an executor of the law of nature, specifically by punishing malefactors.67 One can see why Locke found it useful to adopt this doctrine. Royalist defenders of divine right often argued that, since a right to punish did not inhere in individuals and it did inhere in the royal government, it must have been conferred on the king directly by God. An argument that individuals in a prepolitical state of nature did have a right to punish provided a straightforward response. Locke’s argument is easy to understand as a useful debating tactic. But for Zuckert and Tully it has a much more profound significance; they see in it a major innovation in the history of political theory. Zuckert wrote that, in Locke’s work, “the executive power of the law of nature functions as the source of the political power that rulers hold in trust ….” Hence, for Locke, the individual was “the home and source of political power,” not the community as in Suarez and the preceding tradition.68 Accordingly, comparing Suarez and Locke, Zuckert wrote that the doctrine of a natural executive power signified “a shift in the very roots of their respective philosophies.” In similar fashion Tully wrote that, according to Locke, political power was “a natural property of individuals” and that this constituted “one of the major conceptual innovations in early modern thought.”69 For these authors Locke’s argument exemplified the new individualism that they contrasted with a preceding tradition of corporatism or holism.
But this whole argument is questionable. As we have seen, the preceding tradition cannot be dismissed as uniformly holistic, and it is not clear that Locke really intended to substitute the individual for the community as the “home” of political power. His comments on the matter are at best equivocal. Locke did of course assert that the natural executive power had to be “resigned into the hands of the community” when a political society was formed.70 That is reasonable enough. No ordered society can tolerate a right to vigilante justice exercised by each individual. But it does not follow that the political power inherent in the community came to it through the transfer of a political power pre-existing in individuals. When Locke wrote his chapter specifically on “The Beginning of Political Societies” he did not argue in that way. Rather he maintained that political power was derived simply from the agreement of individuals to “incorporate,” to form a political society and consent to accept its decisions. This seems quite traditional and in accord with the teaching of Suarez.71
The real difficulty in Locke’s argument comes in a later discussion where he did refer to the executive power held by every person in a state of nature as a “political power.”72 But this passing observation contradicts Locke’s own understanding of the nature of political power that he expressed in various other contexts of the Two Treatises. Throughout this work Locke persistently treated political power as a power to legislate. In the First Treatise he carefully distinguished between legislative power and executive power, seeing in the former but not in the latter a mark of sovereignty.73 At the beginning of the Second Treatise he explicitly defined political power as “a right of making laws with penalties ….”74 And in later chapters he repeatedly referred to the legislative as the supreme power in a commonwealth;75 all other powers, he noted, were subordinated to it and derived from it, including the executive.76 On this argument the legislative power could not have been derived from a preexisting executive power.
Of course Locke never asserted that legislative power—political power according to his own definition—inhered in individuals in a state of nature. The idea is indeed absurd. Given a society of free and equal persons in a state of nature, we can well suppose that each one would have a right of self-defense and even a right to punish malefactors, but it would be nonsensical to assert that each one had a right to legislate for all the others. Hence the view that Locke really intended to present a novel argument asserting that political power was “a natural property of the individual” becomes problematic. We either have to suppose, charitably and I think correctly, that we are dealing here merely with one of the various verbal glitches that critics have always found in Locke’s argument or that his whole teaching on the origin of political authority was incoherent. In the same passage that apparently attributed political power to individuals Locke went on a few lines later to describe this power once more as “a power to make laws.”77 At the point where we are supposed to discern a major innovation in political theory we encounter only a sort of verbal blur. Locke’s argument would make sense only if he was expressing in a confused fashion a doctrine like that of Suarez, that political power inhered in individuals radicaliter, that is as an innate capacity to create a political community with legislative power.
Zuckert attributed an almost cosmic significance to Locke’s doctrine of an executive power to punish offenders in a state of nature; he found in it “an emblem and offspring of Locke’s break with the ontology, metaphysics, and theology” of the preceding tradition.78 But in fact this idea too has a substantial pre-Lockean history. We can therefore finally glance at some sources of the doctrine.79 It had been deployed by several seventeenth-century authors before Locke and it has an obvious, widely recognized source in the De jure belli et pacis of Grotius. In that work Grotius asserted several times that a right to inflict punishment on malefactors inhered naturally in individuals.80 An inquiry into the original source of Locke’s argument is complicated, however, by the fact that a much closer approximation to his language can be found in an earlier work of Grotius that Locke presumably could not have known. This is the De jure praedae, written in 1604 but not published until 1868. It is conceivable that the work circulated in a few scribal copies, a not uncommon practice in the seventeenth century, and that Locke had access to a copy during his stay in Holland from 1683 to 1689. I think this is a likely explanation but, lacking any specific evidence for it, we have to suppose that Locke could have independently constructed Grotius’s original argument from the comments in the De jure belli.
However it came about, there was a striking convergence of argument in the two thinkers. Grotius maintained, for instance, that the right of a government to punish resident aliens could only have been derived from a preexisting natural right to punish. It is not a very persuasive proof, but Locke used the same argument in the same way.81 Grotius also cited Aquinas’s teaching that a criminal in a sense stripped himself of his humanity and became like a noxious beast. And again Locke used the same argument in the same way though without the reference to Aquinas.82
The most important point for us is that in this early work of Grotius the idea of a natural executive power to punish did not suddenly spring into existence out of nowhere. Locke was content to describe the doctrine as “strange,” but Grotius as usual equipped his argument with a full panoply of juridical and theological authorities. In the earlier tradition, the jurists of the twelfth and thirteenth centuries commonly asserted that the right to judge and punish was forbidden to private individuals and inhered only in public authorities. However, their arguments always assumed that a public magistracy did indeed exist. The purpose of their prohibition was to prevent acts of individual vengeance and private feuding that could disrupt the fabric of an already existing political society. Even in their works, however, the rule was not absolute. Roman and canon law permitted anyone to kill a highway robber or a nocturnal marauder without awaiting the judgment of a magistrate.83 A further development occurred in the fourteenth century when a new kind of literature arose, typified in the treatise of Johannes de Lignano, De bello. de represaliis et de duello and in the similarly titled Tractatus de represaliis of Bartolus. These works were concerned with private warfare, with the circumstances in which individuals could licitly use force against one another and exact reprisals. Johannes explained that this situation could arise when resort to a magistrate was impossible “both in law and in fact.” Alberico Gentili, a younger contemporary of Grotius, expressly allowed for a right of punishment inhering in private individuals when a public magistrature did not exist.84
This was the theme that Grotius developed. Taking up the argument about a right of private warfare in the absence of a judicial authority, he quoted Bartolus as saying that such a state of affairs could exist “in desert lands or islands, on the ocean or in any region where the people have no government.” Then Grotius recalled that Paulus Castrensis, a fifteenth-century civilian jurist, had written that, in such cases, the situation was “very much what it was before states and courts of justice were established.” This led on to an assertion by Grotius that, under the law of nature, “each individual was the executor of his own right.”85 Locke’s similar doctrine was not a break with all previous tradition but a continuation of a late medieval strand of thought, adapted and transmitted by Grotius.
In reading Grotius and his sources one has the impression that he was not breaking with a preceding tradition but building on it. Although the earlier sources he cited did not specifically defend an individual right to inflict punishment, the idea can be seen as a reasonable inference from them. The teaching of Aquinas that a criminal became like a noxious beast does seem to imply that anyone could kill such a “beast”—but Aquinas himself did not draw that conclusion as Grotius would. Grotius was carrying the argument of his sources a step further. However, he did not see his own argument as a revolutionary innovation, but rather as a teaching well grounded in the respectable authorities that he cited. Peter Haggenmacher, who has provided the most exhaustive account of the theological and juridical background to Grotius’s doctrine, came to a similar conclusion. “Probablement ne croyait-il pas faire davantage que de compléter la tradition, d’une façon certes inattendue, mais sans la heurter de front.”86 One might say the same about Locke’s treatment of the roles of individualism, corporatism, and consent in the formation of political societies.
The seventeenth century was an age of very dramatic change, especially in the physical sciences. After Galileo and Newton the universe could never look the same; but we need not suppose that a change in one sphere of understanding implies a corresponding change in all the others, guided by some imaginary spirit of the age.87 It is not necessarily so. Even nowadays, when no one any longer believes in Aristotelian physics, there are still defenders of Aristotelian ethics. So too in the seventeenth century a revolution in scientific thinking was not necessarily accompanied by a revolution in the realm of political thought.
In every century of Western history, and perhaps most strikingly in the seventeenth century, one can find elements of persistence and of change. The contemporaries of Galileo and Newton commonly believed in witchcraft and alchemy and magic. More constructively, in their political thinking, they still made use of concepts that had been formulated by medieval thinkers—and the medieval authors themselves were often using ideas derived from classical and early Christian authors in discussing the institutions of their own very different society. There was a persisting lack of “fit” between old inherited ideas and the changing societies in which they persisted, a tension that helps to explain the vitality and creativeness of the Western tradition.
If, then, we are to speak of a continuing tradition in the area of political thought from the twelfth century to the seventeenth, we must emphasize that tradition does not mean stagnation. A stagnant tradition is dead. A living tradition is characterized by growth and change. In Western history, from the twelfth century onward, every generation had to find new ways of applying old ideas to contingent emerging situations, and the ideas could take on new significances in the process. All this can help us to understand the work of Locke. No medieval author could have written the Two Treatises. The content of Locke’s work was shaped by the special circumstances of England in the l680s. But Locke could not have written as he did if he had not had at his disposal a cluster of ideas derived from the medieval past and transmitted by such authors as Suarez and Grotius.88 Like them, Locke developed an existing tradition in his own distinctive way, but the distinctive features of his thought are to be explained by the English context within which he wrote, not by some imagined contrast between medieval corporatism and Lockean individualism. That argument does justice neither to the elements of individualism in medieval thought nor to Locke’s emphasis on incorporation when he discussed the origin of political societies.
1 Das deutsche Genossenschaftsrecht (4 vols, Berlin, 1868–1913). On continuities and discontinuities see Francis Oakley, Natural Law, Laws of Nature, Natural Rights: Continuities and Discontinuities in the History of Ideas (New York, 2005).
2 James A. Brundage, Medieval Canon Law (London, 1995), p. 110.
3 Anthony Black, Political Thought in Europe 1250–1450 (Cambridge, 1992), p. 191.
4 Ernest Fortin, Collected Essays, ed. J. Brian Benstead (3 vols, Lanham, MD, 1996), vol. 3, p. 192.
5 Francis Oakley, “Locke, Natural Law and God—Again,” History of Political Thought, 17 (1997): pp. 624–651 (with extensive additional literature). Oakley emphasizes the nominalist and voluntarist roots of Locke’s natural law doctrine. For earlier literature on Locke see Roland Hall and Roger Woolhouse, 80 Years of Locke Scholarship: A Bibliographical Guide (Edinburgh, 1983).
6 Cary J. Nederman, “Conciliarism and Constitutionalism: Jean Gerson and Medieval Political Thought,” History of European Ideas, 12 (1990): 189–209 at p. 193, p. 195.
7 James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge, 1993), p. 15.
8 Charles Taylor, Sources of the Self (Cambridge, MA, 1989), p. 193.
9 Patrick Riley, “How Coherent is the Social Contract Tradition?,” Journal of the History of Ideas, 34 (1973): pp. 543–562 at p. 543.
10 S.G. Swanson, “The Medieval Foundations of John Locke’s Theory of Natural Rights,” History of Political Thought, 28 (1997): pp. 399–459 at p. 418.
11 Paul E. Sigmund, Nicholas of Cusa and Medieval Political Thought (Princeton, NJ, 1963), p. 155.
12 Francis Oakley, “Legitimation by Consent: The Medieval Roots,” Viator, 14 (1983): pp. 303–335; F. Oakley, “Disobedience, Consent, Political Obligation,” History of Political Thought, 9 (1998): pp. 211–221; F. Oakley, “Nederman, Gerson, Conciliar Theory and Constitutionalism; ‘Sed contra’,” History of Political Thought, 16 (Spring 1995): pp. 1–19.
13 Michael Zuckert, Natural Rights and the New Republicanism (Princeton, NJ, 1994), p. 230, pp. 223–224.
14 H. Höpfl and M.P. Thompson, “The History of Contract as a Motif in Political Thought,” American Historical Review, 84 (1979): pp. 919–946 at p. 938. The authors provide a critical overview of earlier work on social contract theory.
15 This was a central theme of two of my earlier works, Foundations of the Conciliar Theory (Cambridge, 1955; rpt, Leiden, 1997); Religion, Law, and the Growth of Constitutional Thought, 1150–1650 (Cambridge, 1982; rpt, Cambridge, 2009).
16 Leo Strauss, Natural Right and History (Chicago, IL, 1953), p. 215, p. 222; W. Berns, “Correspondence,” This Week, 8 (1984): p. 8; Ernest Fortin, Collected Essays, ed. Benstead, vol. 3, p. 207. But medieval theologians often wrote of an “age of the law of nature” before the time of Moses.
17 Samuel Pufendorf, De iure naturae et gentium libri octo (Amsterdam, 1688), p. 105, 2.2.1.
18 Peter Laslett (ed.), Locke’s Two Treatises of Government (2nd edn, London, 1967), p. 371, 2.§131; p. 357, 2.§107 (henceforth cited as TT)
19 De iure naturae, pp. 649–653, 7.1.3–5.
20 Aegidius Romanus, De regimine principum libri III (Frankfurt, 1968), fol. 240v, 3.1.3; reprint of the edition of Rome 1556.
21 Decretum Gratiani … una cum glossis (Venice, 1600), D.6 d.p.c.3.
22 D.1 c.7.
23 Rufinus, Summa decretorum, ed. Heinrich Singer (Paderborn, 1902), p. 4: “… et concordie subire federa et certas pactiones inire, que ius gentium appellantur.”
24 Commentaria Innocentii … super libros quinque decretalium (Frankfurt, 1570), fol. 430r, “ad Decretales” 3.34.8.
25 Reportata Parisiensis in Joannis Duns Scotus … opera omnia (26 vols, Paris, 1894), vol. 24, p. 458, 4.36.2.4.
26 Quaestiones in quartum librum Sententiarum in Opera (26 vols, Paris, 1894), vol. 18, p. 266, 4.15.2: “… poterant concorditer consentire ut vel uni personae vel communitati committerent illam communitatem … Et ista auctoritas politica, ut patet, justa est quia juste potest quis se submittere uni personae vel communitati ….”
27 Quaestiones, vol. 18, p. 272, 4.15.2: “… in facto communitatis suppono includi consensus cujuslibet … quasi jam oblatum, in hoc quia quilibet consensit in leges justas condendas a communitate vel Principe ….”
28 De iurisdictione, ed. Ludwig Hödl (Munich, 1959), p. 16: “… iurisdictio acquiritur per solum consensum populi ….”
29 De potestate papae (Paris, 1647), p. 364: “Sed nulla persona vel communitas potest recte obligari nisi de consensu proprio ….”
30 Ibid. Hervaeus held that in secular society both the office and person of the ruler were established by consent, but in the one case of the papacy the office was divinely instituted and only the person designated by human choice.
31 Opus nonaginta dierum, in Guillelmi de Ockham opera politica, ed. H.S. Offler (3 vols, Manchester, 1972), vol. 2, p. 439.
32 Breviloquium, in Wilhelm von Ockham als politischer Denker und sein Breviloquium de principatu tyrannico, ed. Richard Scholz (Leipzig, 1944), p. 161, p. 166.
33 Tractatus contra Benedictum, Opera politica, vol. 3, p. 191: “… ecclesia est plures verae personae et reales, quia est corpus Christi misticum ….”
34 Dialogus, in Monarchia S. Romani imperii, ed. M. Goldast (2 vols, Frankfurt, 1614), vol. 2, p. 933, 3.2.2.27, citing Decretales 1.2.6: “Ergo si populus praecipit aliquid alicui de populo, quod non est de necessitate faciendum, non tenetur illud facere ….’ Cf. Locke, TT, p. 351, 2.§99. Individuals “give up all the power, necessary to the ends for which they unite ….”
35 De regimine, p. 320, 3.2.32; p. 240, 3.1.3.
36 Marsilii de Padua Defensor Pacis, ed. Richard Scholz (Hannover, 1933), p. 434, 2.22.15.
37 De potestate regia et papali, ed. F. Bleienstein (Stuttgart, 1969), p. 75, p. 77.
38 De iurisdictione ecclesiastica (Paris, 1506), fol. 1r.
39 De ortu et fine Romani imperii, in Politica imperialia, ed. M. Goldast (Frankfurt, 1614), p. 755, p. 763.
40 Tractatus de legibus (Paris, 1506), fol. 13v.
41 Quaestiones super octo libros politicorum Aristotelis (Frankfurt, 1969), 1.3.2, 1.3.5; reprint of the edition of Paris, 1513. On these texts of Buridan see Mario Grignaschi, “Un commentaire nominaliste de la Politique d’Aristote: Jean Buridan,” Anciens pays et assemblées d’états, 19 (1960), pp. 123–142 at pp. 141–142.
42 De regimine civitatis, in Politica e diritto nel Trecento Italiano, ed. Diego Quaglione (Florence, 1983), p. 80.
43 In the century before Locke, Las Casas, the great defender of the Indians, gave a rather extreme example of individual consent when he asked how Spanish rule over the Indians could become legitimate. Las Cases quoted the juristic maxim, “Quod omnes tangit” (“What touches all is to be approved by all”). But the whole force of the argument turned on whether a decision “touched” a people as a corporate whole or as individuals. Las Casas insisted that where liberty was at stake the case was “common to all and many and to single individuals.” Therefore the consent of each individual person was necessary. The consent of a majority accepting Spanish rule could not prejudice the rights of individuals who withheld consent. Las Casas cited here the same canonistic text (Decretales, l.2.6) that Ockham had used (above, n. 34). See De thesauris in Peru, in Fray Bartolomé de Las Casas, Obras completas, ed. P. Castaneda Delgado (14 vols, Madrid, 1992), vol. 11, p. 198, p. 200, p. 208.
44 Anthony Black, Guilds and Civil Society (Ithaca, NY, 1984), p. 151.
45 TT, p. 349, 2.§95: “… they are thereby presently incorporated and make ‘one Body Politick’.” For subsequent references to incorporation see p. 350, §97; p. 351, §99; p. 352, §101; p. 66, §120; p. 367, §121; p. 370, §128; p. 424, §211.
46 TT, p. 425, 2.§212.
47 TT, p. 350, 2.§98.
48 Patrick Riley, “On Finding an Equilibrium between Consent and Natural Law in Locke’s Political Philosophy,” Political Studies, 22 (1974): pp. 432–452 at p. 454.
49 “On the Road from Constance to 1688: The Political Thought of John Major and George Buchanan,” Journal of British Studies, 1 (1962): pp. 1–31 at p. 26. One might argue that consent by a qualified majority was a highly individualistic procedure. A judge determining the validity of an election had not merely to make a mechanical head count but to evaluate the qualities of individual electors. Consent by vote of a simple majority is egalitarian, but egalitarianism is not the same as individualism.
50 The decree was taken into the Liber Sextus at 1.6.9.
51 Dig. 50.1.19. For a vigorous medieval defense of majority voting see Lupold of Bebenburg, “Tractatus de iuribus regni et imperii Romani,” in Jürgen Miethke and Christoph Flüeler (eds), Politischen Schriften des Lupold von Bebenberg (Hannover, 2004). Both qualitative and numerical majorities occur in later political thought. Marsilius of Padua, for instance, required the consent of the “valentior pars” of a community. Locke favored simple majorities except when the members specified some larger number.
52 See Walter Ullmann, “De Bartoli sententia: Concilium repraesentat mentem populi,” in Bartolo da Sassoferrato: Studi e documenti per il VI centenario (2 vols, Milan, 1962), vol. 2, pp. 707–733 at p. 719, citing Bartolus’ Commentaria on the Digest from the edition of Turin, 1577, Comm. ad 50.9.2, fol. 239r.
53 See L. Moulin, “Sanior et maior pars: note sur l’évolution des techniques électorales dans les ordres religieux du VIe au XIIIe siècles,” Revue historique de droit français et étranger, 36 (1958): pp. 368–397, pp. 491–529 at p. 513.
54 Ockham made the same point even when he applied the term mystical body to the church (above n. 33).
55 Modern scholars have criticized Gierke for reading nineteenth-century ideas into his medieval texts and for presenting a mythical account of early German history, but his work still provides a mine of information about medieval sources. For a balanced modern appraisal see Anthony Black (ed.), Community in Historical Perspective (Cambridge, 1990), pp. xiv–xxx. For a general discussion of medieval corporation doctrines see Pierre Michaud-Quantin, Universitas: Expressions du mouvement communautaire dans le moyen-âge latin (Paris, 1970). Good overviews are provided by two chapters in The Cambridge History of Medieval Political Thought, ed. James Burns (Cambridge, 1988): J.P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” pp. 454–476; Anthony Black, “The Individual and Society,” pp. 588–606. See also J.P. Canning, “The Corporation in the Political Thought of the Italian Jurists,” History of Political Thought, 1 (1980): pp. 9–32.
56 On this point an older article of Walter Ullmann is still valuable. See “The Delictal Responsibility of Medieval Corporations,” Law Quarterly Review, 64 (1948): pp. 77–96.
57 Commentaria ad Decretales 5.39.52, fol. 559r.
58 Accursius, Glossa ordinaria in Digestum vetus … tomus primus (Venice 1598). Gloss ad Dig. 3.4.7, col. 430: “… universitas nil aliud est nisi singuli homines qui ibi sunt ….” Oldradus, Consilia, Cons. 65 n. 7 in Canning, “Italian Jurists,” p. 19, citing the edition of Lyons, 1550.
59 Bartolus, Commentaria ad Dig. 48.19.16 in Canning, “Law, Sovereignty,” p. 475, n. 78, citing the edition of Turin, 1577.
60 Baldus de Ubaldis, Lectura ad Dig. 29.2.51.1 in Canning, “Italian Jurists,” p. 14, citing the edition of Lyons, 1498.
61 Francisco Suarez, “Tractatus de legibus et Deo legistatore,” in Francisci Suarez … opera omnia, ed. C. Berton (Paris, 1856), vol. 5, p. 27, 1.6.17. George Lawson, An Examination of the Political Part of Mr. Hobbs his Leviathan (London, 1657), p. 21.
62 Suarez wrote that before the ius gentium “nothing is to be supposed except the natural state of man” (De legibus, p. 164, 2.18.4) The reference to self-defense as the greatest right is in the Defensio fidei catholicae, Opera, vol. 24, p. 676, 6.4.5.
63 De legibus, p. 180, 3.2.3.
64 De legibus, p. 181, 3.2.4: “Alia ergo modo considerandum est hominum multitudo, quatenus speciali voluntate seu communi consensu in unum corpus politicum congregantur … In tali ergo communitate, ut sic, est haec potestas ex natura rei … quia haec unitas magna ex parte insurgit ex subjectione ad idem regimen.”
65 De legibus, p. 183, 3.2.5: “Deus non dat haec potestatem per specialem actionem vel concessionem a creatione distinctam … ergo datur … medio dictamine rationis naturalis ostendentis Deum sufficienter providisse humano generi et consequenter illi dedisse potestatem ad suam conservationem et convenientem gubernationem necessariam ….”
66 De legibus, p. 184, 3.4.1.
67 TT, p. 289, 2.§7.
68 Strauss, Natural Right, p. 224, p. 231, p. 226.
69 Tully, An Approach, p. 15.
70 TT, p. 342, 2.§85.
71 TT, p. 351, 2.§99.
72 TT, p. 399, 2.§171.
73 TT, p .254, 1.§129.
74 TT, p. 286, 2.§3.
75 TT, p. 372, 2.§132; p. 374, 2.§134; p. 375, 2.§135; p. 387, 2.§153.
76 TT, p. 386, 2.§150.
77 TT, p. 400, 2.§171. Simmons pointed to another problem. If a government’s power were derived from a transfer of a natural executive power inhering in individuals then the government could punish only offenses against the law of nature. See A. John Simmons, The Lockean Theory of Rights (Princeton, NJ, 1992) p. 138.
78 Strauss, Natural Right, p. 240.
79 For a natural right to punish in Sexton, Milton, and Tyrrell see David Wootton, Political Writings of John Locke (New York, 1993), p. 80, p. 122, n. 2.
80 De jure belli et pacis libri tres (Amsterdam, 1646), p. 26, 1.2.7; p. 316, 2.20.3; p. 329, 2.20.8; p. 322, 2.20.9. Zuckert and Tully understand the Grotian origin of Locke’s teaching; it is his way of applying it that they find radically innovatory. But, as indicated above, the argument that Locke saw executive right as the source of political power is questionable at best.
81 De jure praedae commentarius, ed. H.G. Hamaker (The Hague, 1868), p. 91; TT, p. 291, 2.§9. Simmons noted that the situation could just as well have been explained by Locke’s own doctrine of tacit consent, The Lockean Theory, p. 137.
82 De jure praedae, p. 91; TT, p. 290, 2.§8.
83 Codex 3.27.1; Gl. Ord. ad Decretum, C.23 q.5 c.1 (s.v. “Quod autem”).
84 Johannes de Lignano, Tractatus de bello. de represaliis et de duello, ed. Thomas Erskine Holland (Oxford, 1917), p. 324. Alberico Gentili, De iure belli libri III (Hanover, 1612), p. 137: “… iustissumun sit punire nocentes, ius suum ulcisci … quemadmodum et privatorum, singulorum erat, quum magistratus non esset ….”
85 De jure praedae, p. 88.
86 Peter Haggenmacher, Grotius et la doctrine de la guerre juste (Paris, 1983), p. 229.
87 Ernst Cassirer expressed this view in a comment on seventeenth-century political theory that to me seems almost a reductio ad absurdum. See The Myth of the State (Garden City, NY, 1955), p. 205: “The modern spirit became aware of its creative energies; it began to form and understand itself.”
88 Of course this “cluster of ideas” does not represent the whole of medieval political thought any more than Locke typifies the whole of seventeenth-century political thinking. One could find in other medieval sources—and in seventeenth-century ones—ideas more holistic and absolutist than those I have considered.