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The Wiles Lectures
Religion, Law and the Growth of Constitutional Thought, 1150-1650
To understand the growth of Western constitutional thought, we need to consider both ecclesiology and political theory, ideas about the Church as well as ideas about the state. In this book Professor Tierney traces the interplay between ecclesiastical and secular theories of government from the twelfth century to the seventeenth. He shows how ideas revived from the ancient past - Roman law, Aristotelian political philosophy, teachings of Church fathers - interacted with the realities of medieval society to produce distinctively new doctrines of constitutional government in Church and state. The study moves from the Roman and canon lawyers of the twelfth century to various thirteenth-century theories of consent; later sections consider fifteenth-century conciliarism and aspects of seventeenth-century constitutional thought. Fresh approaches are suggested to the work of several figures of central importance in the history of Western political theory. Among the authors considered are Thomas Aquinas, Marsilius of Padua, Jean Gerson, Nicholas of Cues and Althusius, along with many lesser-known authors who contributed significantly to the growth of the Western constitutional tradition.
124 pages, Hardcover
First published March 31, 1982
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January 9, 2016
Histories of the growth of democracy, republicanism, or constitutional thought root themselves in all sorts of places. They can be stories of ancient Athens, stories of the Italian communes in the twelfth century, or stories of Enlightenment thought. All fair enough. Oftentimes, 'history of democracy' = 'history of historical time period I think was best.' But Brian Tierney's short essay on the rise of constitutional thought root it in something much more accidental, and he describes how in the period between 1150 and 1650, modern constitutionalism grew out of thought that really was not constitutional at all, and was often attempting to solidify older, more traditional forms of authority.
Tierney argues in Religion, Law, and the Growth of Constitutional Thought that constitutional theory as it took shape in the 1700s can really only be seen as the culmination of a slow, often inchoate intellectual development between 1150 and 1650. It developed from medieval conceptions of corporation theory, and remained a constant topic of intellectual debate due to the fact, in the simplest terms, that no one could figure out exactly where the ultimate point of authority was located. This is a fun argument, since it really goes against traditional periodizations of medieval, early modern, Renaissance, Enlightenment, etc.
The essay begins with a look a medieval government: particularly why medieval Europe did not develop absolute, divine-right monarchs that were so prevalent in other contemporary world cultures. Tierney argues that it can be attributed to a couple things:
1) Customary Law: the weakest example, according to Tierney, since it was present in many other cultures as well. Still, the Germanic emphasis on popular participation in government continued to hold some cultural sway.
2) Corporate Groups: a pervasive cultural reality in Europe by 1250. Universities, towns, guilds, cathedral chapters and more all operated as corporations. More on this in a bit.
3) Decentralization: The tension between the center and the locality was omnipresent. Papal power was held in check by episcopal power; royal power by baronial power, etc.
4) Two Swords: The fact that both the emperor and the pope claimed supreme authority meant that neither one ever actually managed to possess it.
These trends prevented absolutism from emerging during the medieval period in Europe, but it certainly did not create constitutionalism. For that, Tierney turns to the re-emergence of Roman law and the effect that it had on the medieval conception of corporations.
It's a funny, arbitrary jump, and one that happened fairly often in medieval political theory. An obscure point of Roman law was dug up in the 12th century. It then was applied to a broader point of canon law, and eventually ecclesiastical constitutional law. Then, given that the medieval personnel of ecclesiastical and royal government heavily overlapped, it made its way into secular constitutional law. This happened with a rather detailed piece of Roman guardianship law: "Quod omnes tangit ab omnibus approbari debet" ('what touches all ought to be approved by all'). In its original law code, this was designed to deal with a guardianship with multiple tutors. When it was adopted into canon law, though, it was used to determined the governing of a diocese. When a question arose concerning the lands of a diocese, should decisions be made by the bishop? The cathedral chapter? Both? This quickly moved into more macroscopic territory in the church. Were key matters determined by the pope? A council? The whole body of the faithful?
These questions, for Tierney raised a whole host of problems. The process of answering them could lead to a theory of absolutism or constitutionalism, depending entirely on which aspects are stressed. Take the cathedral chapter example. One can determine that that chapter itself concedes its authority to the head (the bishop) and cannot take it back, yielding a strong monarchy. One can determine that the chapter can concede authority to the bishop but take it back under particular conditions, yielding a limited or constitutional monarchy. One can determine that the chapter and the bishop both have their own sorts of fields of authority, yielding a sort of federalism. All of these solutions arose at various points during the medieval and early modern eras, spurred especially by events like the Great Schism and the English Civil War. They were the same questions arising again and again from about 1150, given slightly different answers in response to historical context.
Tierney's rise of constitutionalism is based on the attempted resolutions of paradoxes and dichotomies. How to resolve the medieval belief in the power of the community with a concurrent belief in the presence of a top-down Neoplatonic hierarchy? How to resolve the belief in papal primacy with the beliefs in episcopal independence and the right of a community to rid itself of a sinful leader? How to resolve the belief that an Aristotelian mix of monarchy, aristocracy, and democracy was the best form of government with the problem that, at some point, conflict will arise and they'll all be at odds?
It's a short, wonderful book. As always Tierney take tough topics and makes them fascinating and accessible.
Tierney argues in Religion, Law, and the Growth of Constitutional Thought that constitutional theory as it took shape in the 1700s can really only be seen as the culmination of a slow, often inchoate intellectual development between 1150 and 1650. It developed from medieval conceptions of corporation theory, and remained a constant topic of intellectual debate due to the fact, in the simplest terms, that no one could figure out exactly where the ultimate point of authority was located. This is a fun argument, since it really goes against traditional periodizations of medieval, early modern, Renaissance, Enlightenment, etc.
The essay begins with a look a medieval government: particularly why medieval Europe did not develop absolute, divine-right monarchs that were so prevalent in other contemporary world cultures. Tierney argues that it can be attributed to a couple things:
1) Customary Law: the weakest example, according to Tierney, since it was present in many other cultures as well. Still, the Germanic emphasis on popular participation in government continued to hold some cultural sway.
2) Corporate Groups: a pervasive cultural reality in Europe by 1250. Universities, towns, guilds, cathedral chapters and more all operated as corporations. More on this in a bit.
3) Decentralization: The tension between the center and the locality was omnipresent. Papal power was held in check by episcopal power; royal power by baronial power, etc.
4) Two Swords: The fact that both the emperor and the pope claimed supreme authority meant that neither one ever actually managed to possess it.
These trends prevented absolutism from emerging during the medieval period in Europe, but it certainly did not create constitutionalism. For that, Tierney turns to the re-emergence of Roman law and the effect that it had on the medieval conception of corporations.
It's a funny, arbitrary jump, and one that happened fairly often in medieval political theory. An obscure point of Roman law was dug up in the 12th century. It then was applied to a broader point of canon law, and eventually ecclesiastical constitutional law. Then, given that the medieval personnel of ecclesiastical and royal government heavily overlapped, it made its way into secular constitutional law. This happened with a rather detailed piece of Roman guardianship law: "Quod omnes tangit ab omnibus approbari debet" ('what touches all ought to be approved by all'). In its original law code, this was designed to deal with a guardianship with multiple tutors. When it was adopted into canon law, though, it was used to determined the governing of a diocese. When a question arose concerning the lands of a diocese, should decisions be made by the bishop? The cathedral chapter? Both? This quickly moved into more macroscopic territory in the church. Were key matters determined by the pope? A council? The whole body of the faithful?
These questions, for Tierney raised a whole host of problems. The process of answering them could lead to a theory of absolutism or constitutionalism, depending entirely on which aspects are stressed. Take the cathedral chapter example. One can determine that that chapter itself concedes its authority to the head (the bishop) and cannot take it back, yielding a strong monarchy. One can determine that the chapter can concede authority to the bishop but take it back under particular conditions, yielding a limited or constitutional monarchy. One can determine that the chapter and the bishop both have their own sorts of fields of authority, yielding a sort of federalism. All of these solutions arose at various points during the medieval and early modern eras, spurred especially by events like the Great Schism and the English Civil War. They were the same questions arising again and again from about 1150, given slightly different answers in response to historical context.
Tierney's rise of constitutionalism is based on the attempted resolutions of paradoxes and dichotomies. How to resolve the medieval belief in the power of the community with a concurrent belief in the presence of a top-down Neoplatonic hierarchy? How to resolve the belief in papal primacy with the beliefs in episcopal independence and the right of a community to rid itself of a sinful leader? How to resolve the belief that an Aristotelian mix of monarchy, aristocracy, and democracy was the best form of government with the problem that, at some point, conflict will arise and they'll all be at odds?
It's a short, wonderful book. As always Tierney take tough topics and makes them fascinating and accessible.
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