subsidiarity, federalism, and the best constitution - thomas aquinas

7/28/2019 Subsidiarity, Federalism, And the Best Constitution - Thomas Aquinas

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

Dr Nicholas AroneyTC Beirne School of Law

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

This paper can be downloaded without charge from theSocial Science Research Network electronic library at:

http://ssrn.com/abstract=890811

Research Paper No. 07-06

2007


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3/70Electronic copy available at: http://ssrn.com/abstract=890811An electronic copy of this paper is available at: http://ssrn.com/abstract=890811

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 Aquinasunderstood the relationship between the various forms of hu-man community. A major focus of the article is with Aquinasstheory of law and politics and thus with the specifically polit-ical categories of city, province and empire, together with theassociated concepts ofkingdom and nation. But since Aquinasslegal and political ideas cannot adequately be understoodwithout appreciating his wider social and ecclesiastical thought,

the inquiry is also concerned with what he had to say about thevarious social forms of community, such as household, clan

and village, and with the distinctly ecclesiastical categories ofparish, diocese and universal church, as well as the great diver-sity of religious orders, confraternities, guilds and other associ-ations which were characteristic of late medieval society.

Why do we need an article that closely examines Aquinassaccount of these various forms of human community and theirrelationships? A number of reasons converge to make such aninquiry both interesting and relevant to contemporary concerns

and debates.First, there is the question of subsidiarity, simultaneously anotion 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.

Law and Philosophy (2007) 26: 161228 Springer 2007

DOI 10.1007/s10982-006-0005-9


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European Union and a major theme in contemporary RomanCatholic social theory.1 Within the European Union, subsidi-arity is offered as a mechanism by which the competences ofEuropean institutions are kept in balance with the continuingpowers of the Member States.2 However, here the concept isnotoriously ambiguous, not least because the relevant provi-sions define the principle in different ways.3 Is subsidiarity to beunderstood essentially as a political principle which calls fordecisions to be taken as closely as possible to the citizen?4

Alternatively, is it a more narrowly defined legal principle that,where competence is shared as between the Community and theMember States, the Community should take action only wherethe objectives of the proposed action cannot be sufficientlyachieved by the Member States and better achieved by theCommunity?5 Or does it boil down simply to a mandateddecision-making process involving a whole series of complicatedprocedural steps and controversial substantive judgments con-cerning both closeness to the citizen and the comparativeefficiency of either Community or Member State action?6 Giventhis ambiguity, as well as the fact that many commentators

interpret the evolving constitution of Europe as something of areturn to a pre-Westphalian past, Aquinass late medievalaccount of the relationship between empire, province and city

1 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 Gra inne de Burca, 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 Effective AsA 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).

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might not be without its relevance to a post-Westphalianfuture.7

Within the European Union, the doctrine of subsidiarity isgenerally understood as an essentially political or legalprinciple which regulates the relationship between the Com-munity and its Member States. Within Roman Catholic socialteaching, however, subsidiarity theory offers an account of theproper relationship between a great variety of forms andexpressions of human community in addition to the state, such

as families, schools, churches, clubs, corporations and labourorganisations.8 The basic idea is that each community shouldbe allowed to make its own distinctive contribution to thecommon good without improper interference from the gov-erning institutions of other communities, yet at the same timewith appropriate help or aid (subsidium) from other institu-tions where assistance is warranted.9 Notably, the principle ofsubsidiarity within Roman Catholic thought is generally tracedto Aquinas and, before him, to Aristotle.10 A close inquiry intoAquinass discussion of city, province and empire, as well as themany other forms of human community of his time, has the

potential, therefore, to shed a great deal of light on the conceptof subsidiarity within Catholic social teaching, particularly interms of its political implications, but always understood withinthe context of a wider social theory.

7 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, TheSubsidiary State: Society, the State and the Principle of Subsidiarity in

Catholic Social Thought, in Jeanne Heffernan (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.

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A second reason for the contemporary relevance of aninquiry into Aquinass account of city, province and empirehas to do with the question of federalism, itself a question ofgreat currency in the debate over the constitutional future ofEurope,11 not to mention its continuing importance to themany federal states of the modern world. Notably, however,among scholars who have sought to understand the originand development of the federal idea, most, if not all, haveaccorded Aquinas an essentially negative role.12 According to

Samuel Beer, for example, Aquinass thought was dominatedby the idea of hierarchy, not federalism.13 Aquinas, he says,affirmed an ontology of inequality in which every individualkind was organised into a hierarchy of being, ranging fromthe most inclusive and perfect at the apex, down to the leastinclusive and most imperfect at the base of the pyramid.14

This entailed, Beer argues, the idea that all parts of thewhole ought to be directed to the perfection of the whole,and that within human society it is necessary that a gov-erning power direct the various parts of the society to their

11 Federalism, long an underlying theme, has recently re-emerged veryprominently 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,

Berlin, 12 May 2000 and the discussion in C. Joerges, Y. Meny, and J.H.H.

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 Bruns-

wick: 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 andLevels of Governance in the United States and the European Union (Oxford

University Press, 2001), pp. 42, 45. See also Paul J. Weithman, Comple-

mentarity 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 Tho-

mistic System, Political Theory 14(3) (1986): 391, 394. See, also, Samuel

Beer, To Make a Nation: The Rediscovery of American Federalism (Cam-

bridge, MA: Belknap Press, 1993), chapter 1.14 Beer, Rule of the Wise and Holy, 395398.

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proper ends.15 Furthermore, Aquinas is said to have believedthat only particular individuals will possess the requisitewisdom and virtue necessary to perform this governingfunction, and thus the proper order of society is one in whichthe ruled defer to the natural authority of the ruler.16 Theresult, according to Beer, is, at best, a kind of federalismfrom the top, in which the rulers authority is subject tocertain limitations, including a sphere of autonomy for thosesubject to his rule yet these limitations, says Beer, are

imposed upon the ruler from on high; they are not theresult of popular restraint enforced from below.17 Such atop-down federalism, Beer argues, is a far-cry from thebottom-up kind of federalism, founded upon the doctrine ofpopular sovereignty, which later emerged in the UnitedStates, Beers paradigm of federations.18

Whether Beer is correct in this analysis of Aquinas turns on aclose investigation into what Aquinas actually had to say aboutthe relationship between city, province and empire, understoodin 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, forexample, the medieval theory is certainly going to appear to bemore hierarchical than federal in character. But if Aquinas iscompared to his mentor, Aristotle, a rather different pictureemerges. Aristotles political theory was almost exclusivelyconcerned with the individual city-state (polis). Aquinas, how-ever, wrote about a vast array of political and other forms ofhuman community hamlets, villages, neighbourhoods, cities,kingdoms and provinces adapting Aristotles politicalthought to the very different social context and intellectual

15 Beer, Rule of the Wise and Holy, 398402.16 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.



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milieu in which Aquinas lived and worked.19 And it was thisgreat plurality of communities that later jurists, such asJohannes Althusius (15571638),20 took for granted whenconstructing the first recognisably modern theories of feder-alism.21 Accordingly, as will be argued, the basic conceptualapparatus for a theory of federalism was at least latent withinAquinass legal and political thought, even if its more naturalprogeny was the relatively more hierarchical principle of sub-sidiarity. Recovering what Aquinas had to say about city,

province and empire is thus a necessary prerequisite to anaccurate understanding of the origin and development of fed-eral ideas, as well as the distinctively Roman Catholic doctrineof subsidiarity.

A third reason for the enduring significance of the presentinquiry has to do with the question of the ideal constitution, atopic that Aquinas addressed at some length in terms of thetraditional categories of monarchy, aristocracy, democracy andthe mixed constitution.22 Aquinass treatment of this issuehas raised the question whether he favoured a form of abso-lute monarchy or preferred a system of limited government.23

An examination of the way in which Aquinas adapted

19 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 FrederickCarney (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.

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Aristotelian political philosophy to the many and varied formsof community of his own day has the potential to shed addi-tional light on this question. In this article it will be argued thatfar from endorsing a system of absolute monarchy, Aquinasspolitical thought supported a particular kind of mixed consti-tution in which monarchy is tempered by a variety of consti-tutional constraints founded upon a conception of the bodypolitic as itself constructed out of a plurality of smaller, inter-mediate corporations and communities of a political, ecclesi-

astical and social character. In this respect, Aquinass treatmentof city, province and empire in other words, his treatment ofissues relating the problem of subsidiarity and federalism wasfoundational to and culminated in his account of the bestconstitution.

In order to explain Aquinass contribution to the develop-ment of ideas such as subsidiarity, federalism and limitedgovernment, it is first necessary in this article to show how hewent about adapting Aristotelian political philosophy to thetheological beliefs and institutional conditions of his own time.I begin in Part II, therefore, with Aquinass understanding of

the human good and politics, approached, first, through histreatment of theology and political science and, second,through his account of the relationship between church andstate. In Part III, I next address Aquinass social and politicalthought, in particular examining his conception of the con-stituent components of political society, such as families, vil-lages and neighbourhoods, as well as his treatment of the scaleupon which political community can be organised, such ascities, provinces, kingdoms and empires. I then turn in Part IVto Aquinass theory of the best constitution, and offer aninterpretation that seeks to integrate his discussion of the mixedregime with his account of societal, ecclesiastical and politicalpluralism. Finally, in Part V, I conclude with a brief compari-son between Aquinas and those who followed him, using thiscomparison as a means of reflecting on his significance for thelater development of subsidiarity theory, federalism and limitedgovernment.



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II. THE HUMAN GOOD AND POLITICS

It is a common-place observation that Aquinas endeavoured tosynthesise the deliverances of natural human reason with thepropositions of Christian revelation, and that he sought to dothis in a manner that admitted the findings of reason as regardsthose matters falling within the proper scope of each of itssciences, but which preserved the ultimate unity of the truthsknown by both reason and faith, and insisted that revealedtruths exceed those truths that can be known by reason.24 Thus,against the double truth theory attributed to Averroes (11261198) and the Latin Averroists,25 we find Aquinas clearlyaffirming what he calls the unity of the truth, namely God,who is one simple Truth.26 As regards our cognitive faculty,

24 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 effects 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 Averroes

actual teaching, however, see Richard C. Taylor, Truth Does Not Con-

tradict Truth: Averroes 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, buton the part of our knowledge, as our cognitive faculty has different aptitudes

for the knowledge of divine things. I have here used Joseph Rickaby (ed.),

Of God and His Creatures: An Annotated Translation (with Some Abridge-

ment) 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 Infidelium seu

Summa contra Gentiles, in the Leonine Edition of Aquinass works: Opera

Omnia Sancti Thomae Aquinatis Doctoris Angelici [Opera], t. 23 (Taurini-

Romae: Marietti, 1961).

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however, he also holds that there are two modes in which weknow various truths, one of them accessible to human reason,the other transcending it and accessible only by faith.27 Yetbecause all truth is given to us by God, he maintains, the truthof reason cannot be contrary to the truth of faith.28

There are differences, Aquinas continues, between theobjects of human philosophy and the objects of Christianfaith.29 Philosophy, he says, considers things as they are inthemselves and in their proper nature, whereas Christian faith

considers them in relation to God.30

Two consequences followfrom this. First, he says, because theology begins with God andunderstands all things in relation to Him, theology is thehighest wisdom and human philosophy is subordinate to it.Second, since human philosophy considers creatures as they arein themselves, there are different divisions of philosophyaccording to the different classes of things.31 Within such ascheme, natural reason is capable of discovering the truth aboutthings, so long as it is recalled that such insights concern theknowledge that can be derived from the study of things inthemselves, rather the knowledge of things as they are in rela-

tion to God.

27 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 intelli-

gibility 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 tothose things divinely revealed in the books of the Old and New Testament.

Implicit in Aquinass reasoning is the important distinction between what is

first in the order of being, and what is first 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.



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Aquinass various political observations need to be under-stood in this context.32 Indeed, many of Aquinass mostimportant propositions relating to questions of law, politicsand the best constitution, were written in the context of spe-cifically theological enquiries and, even in those cases where thebasal considerations were fundamentally philosophical incharacter, Aquinass conclusions were still shaped, sometimescritically, by theological considerations. For example, Aristotlehad said that the city-state (polis) is the community in which

human beings are enabled to secure their chief end and highestgood.33 Notably, Aquinas is able to agree with this, providedthat the proposition is limited to its proper domain.34 Politicalscience regards humanity in itself and deals only with specifi-cally human ends, Aquinas insists, whereas sacred theologyconcerns humanitys ultimate end without qualification, andtherefore transcends it. Thus, in his Commentary on the Eth-ics,35 Aquinas points out that political science falls within thedivision of the practical sciences that is concerned with humanthings.36 Understood strictly within this context, Aquinasaffirms with Aristotle that political science considers the ulti-

mate end of human life. But Aquinas is careful to point out that

32 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 Uni-

versity Press, 1996) and consulted W. L. Newman, The Politics of Aristotle(Oxford: Clarendon Press, 1887, rep. 1950).34 The fact that Aristotle referred specifically 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. Litz-

inger, 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].

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the ultimate end of the whole universe is considered in theol-ogy, which is the most important without qualification.37

Absolutely speaking, says Aquinas, our highest good is inGod.38

Aquinass treatment of church and state parallels his treat-ment of theology and philosophy. In a number of places,including a difficult text in the Commentary on the Sentences ofPeter Lombard,39 Aquinas distinguishes between spiritual andtemporal authority, affirming that in those matters which

affect the salvation of the soul, spiritual power is to beobeyed to a greater extent than the temporal (ideo in his magisest obediendum potestati spirituali quam saeculari), whereasin those matters which concern the civil welfare (bonum civile),the temporal should be obeyed more than the spiritual.40

37 Eth., I.2.13 [31].38 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 trans-

lation 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 identified 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 ter-

ritories in central Italy where the Pope was both supreme pontiff and tem-

poral lord as a matter of positive law. However, Aquinas specifically relatesthe 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: Pontifical 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.



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Moreover, Aquinas also seems to suggest that temporal poweris limited to matters of civil welfare. Thus, in the SummaTheologiae,41 he affirms that the goal of human law is thetemporal tranquillity of the state, which is to be achievedthrough the punishment of external acts (exteriores actus) to theextent that they may disturb the peace of the state (pacificumstatum civitatis) whereas the purpose of divine law is to leadhuman beings to the end of eternal happiness and is thusconcerned with both internal as well as external acts.42 More-

over, in De Regno,43

Aquinas appears to go further than this.He suggests that a king ought to promote the good life amongsthis people in a manner that is consistent with the pursuit ofheavenly blessedness (caelestem beatitudinem), thus insistingupon the performance of all that leads thereto, and forbidding,as far as is possible, whatever is inconsistent with this end.44

41 Summa Theologiae (12651268, 12711273) [ST]. I have relied prin-cipally 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 (Philadel-

phia: University of Pennsylvania Press, 1997) and consulted Gerald Phelanand I. Th. Eschmann (trans.), On Kingship, to the King of Cyprus, (Toronto:

Pontifical 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 Intro-

ductions 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].

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However these texts are to be interpreted,45 Aquinas cer-tainly could not say that the state secures humanitys ultimateend in an unqualified sense.46 Thus while he could affirm withAristotle that the state is a perfect community in comparisonwith the communities of which it is composed,47 he had also toaffirm the nature, function and jurisdiction of the church itselfa public association48 and, it seems, a perfect community.49

Aquinass primary concern with theological and philosophicalquestions means that he does not elaborate the precise scope of

ecclesiastical jurisdiction in juridical terms but it is clear thatthe church has spiritual jurisdiction with which the state cannotlawfully interfere.

Aristotle had also said that the city-state pursues a goal thatencompasses the lesser and narrower goals of those subordinatehuman communities of which it is composed.50 Again, Aquinasagrees, but he interprets the proposition as an assertion about

45 Compare John Finnis, Public Good: The Specifically Political Com-

mon 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? FinnissReconstruction 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 offices needed in a political community: Politics, Bk. IV, 1299a3-

19, 1322b18-29; Bk. VII, 1329a27-34. See James Schall, The Uniqueness of

the Political Philosophy of Thomas Aquinas, Perspectives in Political Sci-

ence 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.



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the order of nature and about human things considered inthemselves. Thus, in the Prologue to the Commentary on thePolitics,51 Aquinas observes that nature proceeds from thesimple to the complex (ex simplicibus ad composita), so thatthat which is most complex is perfect and whole and consti-tutes the end of the other things.52 The same is the case, he thenpoints out, in the ordering of human relationships withinsociety. Human beings are organised into societies of variouskinds. [A]mong these societies (communitates), there are vari-

ous degrees and orders (gradus et ordines) and the highest ofthese is the civil community (ultima est communitas civitatis).53

As a consequence, Aquinas can affirm with Aristotle thatpolitical science is architectonic among the practical sciences,for it alone is concerned with the highest and perfect good inhuman affairs (ultimum et perfectum bonum in rebus humanis).54

The propositions are clearly Aristotelian, but the qualificationin human affairs has a special significance for Aquinas, be-cause it leaves room for the supervening role of sacred theol-ogy.55

Theologically speaking, Aquinas clearly affirms that all sov-

ereignty (praelatio) comes from God,56 but he is careful to

51 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.7.1-

3 [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.

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distinguish between the origin (principium), mode (modum) anduse (usum) of sovereignty. The origin or use of sovereignty maybe either good or bad, he says, but the mode of sovereignty isgood in all cases, for the mode of sovereignty consists in a properorder of ruler and subject, and it is in this latter respect alone thatsovereignty can be said to be from God simpliciter.57 Aquinascan therefore affirm that Christians are obliged to obey the sec-ular power (potestatibus saecularibus), citing the famousinjunction of St. Paul, he who resists authority, resists the

ordinance of God (qui potestati resistit, Dei ordinationi resi-stit).58 But Aquinas draws a careful distinction between thesovereignty that comes from God and that which does not. Thereis no obligation to obey sovereignty that is defective in its originor use, he argues, particularly if sovereignty has been usurped, asthrough violence, simony or some other illicit method of acqui-sition, or where a ruler commands things to be done which arecontrary to virtue or ultra vires his legal authority. Not only insuch cases is there no obligation to obey, but there may in fact bean obligation to disobey and a right to cast off tyrannical rule.59

III. SOCIAL AND JURISDICTIONAL DIVERSITY

Aquinass theological adaptation of Aristotles political phi-losophy extended to his treatment of the various forms ofhuman community. Aristotle considered the city-state to be acomposition of households and villages.60 The latter, he said,

57 Sent., II, 44.1.2, co.58 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 interpretationwhich emphasises the development in Aquinass thought on these ques-

tions, 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.



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are formed to secure the bare necessities of life, whereas thecity-state, being self-sufficient, is concerned with securing thegood life.61 The polis is therefore prior to families and villagesin nature or essence, just as the whole is prior to the part.62 For,as Aristotle insisted, humanity (anthropos) is by nature apolitical animal (politikon z"oon), an animal whose end (telos) isfulfilled only in the polis.63

Subject to the qualification that we are here concernedwith human affairs and with the order of nature,64 Aqui-

nas again agrees with the general thrust of these proposi-tions. But there are important differences in exposition anddetail.65 In his Commentary on the Ethics, Aquinas emphas-ises that human communities such as families and politicalsocieties are wholes that possess not an absolute unity, butrather a unity of order.66 This means that political com-munities consist of parts that in some respects have anoperation independent of the whole community, while inother respects participate in the operations of the whole.67

Notably, the Aristotelian text upon which Aquinas commentshere makes no explicit mention of the question of the rela-

tionship of the whole to its parts.68 Yet Aquinas considers it

61 Politics, I.2, 1252b12-13, 1617, 2831.62 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 treat-

ment 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.

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necessary to insist that, while a political community is acomposition of households, this does not mean that thepolitical community is an absolute unity in which thehousehold has no powers of independent operation. Whilesuch a conclusion is generally consistent with Aristotles ownview,69 Aquinass emphasis on the idea that the state is aunity of order lays the foundation for two significant ways inwhich he departs from Aristotle.

First, rather than follow Aristotle by always referring to

human beings simply as a political animals, Aquinas usuallyprefers the description political and social70 or simplysocial.71 When, in the Commentary on the Politics, h e i sexpositing Aristotles views, it is true that Aquinas generallyadopts the Aristotelian political animal (animal politicum, orits Roman Law equivalent, the animal civile).72 Outside of theCommentary on the Politics, however, Aquinas generally preferssimply to say that we are naturally social or political andsocial animals.73 He uses these expressions, for example,even when in the Summa Theologiae he is specifically citing

69 The idea that households have operations that are independent of thestate is affirmed by Aristotle. See Politics, I.2, 1252b15-16, 27-30, 1253a15-

18; 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 Trini-

tate (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: Pontifical Institute of Mediaeval Studies,

1987).73 See the references at notes 7071 above.



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Aristotles Politics on the point.74 And when Aquinas wants toargue (against Augustine) that even in the state of innocence akind of dominion (dominium) would have existed, he reliessolely on the proposition that man is by nature a social animal(homo naturaliter est animal sociale).75 Indeed, Aquinas takesthe point significantly further in the Commentary on the Poli-tics, asserting that human nature is not only political or civil,but also domestic (homo est naturaliter animal domesticum etcivile),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

74 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 reflect

his endeavour to synthesise the Augustinian account of the origin of humandominion 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 Thirteenth-

Century 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 Philos-

ophy 30(3) (1992): 353.76

Pol., I.1.29 [37]. See also Eth., VIII.12.18 (17191720), where theconjugal (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 defines humankind specifically as a domestic animal; human

nature, according to him, is definitively political.

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various non-political forms of human association and com-munity, such as the social and the domestic.77

A second important difference of emphasis between Aquinasand Aristotle concerns the way in which Aquinas treats theAristotelian analysis of the household, the village and the city.Aristotle understood the polis to be uniquely self-sufficientcompared to the family and the village.78 Now it is true thatAquinas follows Aristotle in regarding self-sufficiency to be anessential characteristic of the city-state (civitas), a characteristic

which distinguishes it from a mere household (domus, familia)

77 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 ofChicago Press, 1958), chapters 410). For a critique of Ullmanns inter-

pretation 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 Aris-

totles polis, but suggests, at 214, that Aquinass respect for the free asso-

ciation 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 thepolitical to the provision of a specifically 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 associ-

ations. 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.



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or neighbourhood (vicus).79 Thus, particularly in the Com-mentary on the Politics, Aquinas repeats the Aristotelian anal-ysis relatively closely, discussing the individual, the householdand the city, and distinguishing sharply between them.80

However, in other works the distinctions are less sharplydrawn Aquinas assesses the self-sufficiency of the variousforms of human community in much more relative terms andhe 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 connota-tions distinct from those of the Greek terms used by Aristotle,in this way also incorporating additional categories of humancommunity into the analysis,82 expanding it, indeed, to incor-porate the entire universe (universalis).83 There is benefit inexamining each of these texts in turn.

In the Commentary on the Politics, for example, Aquinasrepeats Aristotles argument that the city-state (polis, civitas) ishigher than the other communities of which it is composed,

just as the whole is greater than its parts.84 He also canvassesAristotles criticisms of the view that the household and city

79 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, con-

sociatio, collegium, corpus, congregatio, collectio, multitudo, respublica, reg-

num, 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].

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differ only in respect of the scale upon which they operate andin expositing Aristotles arguments the criticisms seem to bemade even more emphatically than Aristotle did himself.85

Aquinas likewise faithfully recounts Aristotles claim that thecity exists for the good life, that it is the end of the smallercommunities of which it is composed and that it is therefore thebest and prior according to nature.86 However, Aquinassrecognition that the pursuit of the good in an unqualified senseis the domain of faith and of the Church must be recalled at this

point. Aquinas can thus agree with Aristotle as to the superi-ority of the city-state, but this is subject to the importantqualification that he is here concerned with human matters,understood from the point of view of natural reason. The cityseeks that which is highest among all human goods, but it doesnot seek that which is highest in an unqualified sense.

85 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 dutyof obedience is extended as far as his authority. Now a father of the flesh

first 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 gov-

ernment 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 manage-

ment of the home. I have here used Sandra Edwards (trans.), St. Thomas

Aquinas: Quodlibetal Questions 1 and 2 (Toronto: Pontifical 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 Aris-

totles 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 af-

firms 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.,

affirming the authority of a father in respect of the moral education (morum

disciplinam) of his children.



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A similar perspective is to be found in the Summa Theolo-giae. In Quaestio 90.3 of the Treatise on Law,87 Aquinas isparticularly concerned to establish the proposition that only aruler or ruling body (princeps civitatis), as governor of apolitical community (civitatis gubernator), is able to make law(factiva legis). He therefore has to respond to the objection thata father (paterfamilias), insofar as he governs his family(gubernat aliquam familiam), has the power to make law in thefull 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 distin-guished from the individual and the household. Such a dis-tinction supports Aquinass conclusion that while the governorof a family may make certain rules and regulations (praeceptavel statuta), these do not have the nature of law properlyunderstood (non tamen quae proprie habeant rationem legis).Only the ruler of a perfect community has the capacity to makelaw in the fullest sense of the wordand it is the civitas that is aperfect community, not the family or household.

Similarly, in the Treatise on Prudence and Justice,89 Aquinasdistinguishes between (personal) prudence, domestic prudenceand political prudence, and describes the latter type as beingthe most perfect .90 The perfection of political prudence is dueto the fact that it concerns the government of that perfectcommunity which is the city or the kingdom (communitatem

87 ST, I-II, 90114.88 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.

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perfectam civitatis vel regni), which by its very nature calls forthe perfect type of rule (perfecta ratio regiminis).91 Aquinasthus says that a government is the more perfect according as itis more universal, extends to more matters, and attains a moreultimate end.92 He therefore treats cities and kingdoms on thesame 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 hereof the idea that a kingdom (or province) could be relatively

more self-sufficient (and thus more perfect or more com-plete) than a city.

The suggestion is taken up in De Regno. Here Aquinas veryexplicitly describes the self-sufficiency of the various forms anddegrees of human society (multitudinis societas) in progressiveand more extensive terms.93 Whereas an isolated individual(homini singulariter), he says, is not self-sufficient, a solitaryhousehold (domus) enjoys a degree of self-sufficiency, particu-larly with regard to the giving of birth to offspring and theprovision of food. Likewise, a particular street or neighbour-hood (vicus) within a city will be self-sufficient in respect of the

particular trade that is practised there. Then, he says, a city(civitas) is by comparison self-sufficient in respect of all thenecessities of life but not, it seems, absolutely so. Rather, aprovince (provincia) is even more self-sufficient than a city,particularly in respect of its capacity to defend the communityagainst its enemies.94 Thus, although Aquinas follows Aristotlein progressing from household to city, as well as indistinguishing the city as a perfect and self-sufficient commu-nity, he here diverges from Aristotle in identifying a relative

91 ST, II-II, 50.1.92 ST, II-II, 50.1.93 De Regno, I.2.4 [14].94 De Regno, I.2.4 [14].



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self-sufficiency in the household and neighbourhood and aneven greater self-sufficiency in the province.95

Furthermore, it is noteworthy that Aquinass vicus is notnecessarily equivalent to the Aristotelian village (kome).96

When using the term vicus, Aquinas probably has in mind thestreet or neighbourhood of a medieval town,97 thus assimilatingthe Aristotelian idea of the village to the material conditions ofmedieval city life. Such a conclusion is reinforced by the factthat Aquinas elsewhere observes that particular crafts are

practised in particular vici.98

What Aquinas leaves to implica-tion, however, is that those who practised various crafts inmedieval society were typically organised into guilds.99 Suchguilds were partly self-constituted, largely self-governing, en-

joyed a significant degree of autonomy from town and citygovernments, and were often represented as such in the

95 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 definition [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 Genossenschaftsr-

echt, 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.

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governing institutions of town and city.100 Johannes Althusiuswould, a number of centuries later, take the guild very seri-ously, according it a constitutive and public status as a self-governing, autonomous and participating community withinthe government of the city.101 Aristotle, by contrast, did notspeak explicitly of units within the polis as self-governing or asparticipating in the government of the city as such. He wasalmost certainly aware of the so-called tribes (phulai) anddistricts (demes) of Athens, but understood these to be subject

to the superior rule of the city.102

And Aquinas (followingAristotle) does not in the passages so far under considerationaccord the guilds and similar associations an explicit self-governing capacity or representative function within the city orkingdom.103 Yet, when in Contra impugnantes Dei cultumet religionem he is defending the status and functions of the

100 Moreover, craftsmen and merchants traded on the basis of a devel-

oping 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 Con-

suetudo 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 significant powers of self-government. See David Whitehead, The

Demes of Attica, 508/7ca. 250 B.C.: A Political and Social Study (Prince-ton: 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.



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religious orders, Aquinas undertakes an extended treatment ofthe various kinds of associations, religious and secular.104

In this latter work, building on Aristotles analysis offriendship in the Nicomachean Ethics,105 Aquinas distin-guishes two categories of society, public and private, as welltwo sub-categories of each type, perpetual and temporary.106

A society, he says, is a union of men, assembled together forone and the same purpose. Because societies can be formed fordifferent ends, there are different kinds of societies. A private

society (societas privata) is formed for private purposes, such asmerchant trade, whereas a public society (societas publica),he says, is created when men assemble for purposes con-nected with the common weal (homines sibi communicant in unarepublica constituenda), forming themselves into one city orone kingdom (unius civitatis vel unius regni). Furthermore, eachof these kinds of society can be either perpetual or temporary.When a number of individuals band together to form a city, onehas a perpetual society (societas perpetua) which is a public orpolitical society (societas politica). But there can also be aperpetual 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 pri-vate society (societas privata et temporalis), as when individualsassociate in order to engage in some temporary and privatebusiness, such as to manage an inn. And there can even be atemporary public society (societas publica sed temporalis), aswhen traders associate so to form a public fair.107

Aquinass immediate concern in Contra impugnantes is toshow that there can be no objection to religious persons asso-ciating with secular persons for the purposes of scholarship(collegio scholastico). It is true, he admits, that laymen andclerics should not be members of societies formed, respectively,for strictly religious or secular purposes.108 But lay and reli-gious persons alike belong to the one society of the Church of

104 Impugn., II.2 (Proctor, Apology, I.3).105 Nicomachean Ethics, VIII.106 Impugn., II.2, co (Proctor, Apology, I.3, p. 88).107 Impugn., II.2, co (Proctor, Apology, I.3, p. 87).108 Impugn., II.2, ad 1 (Proctor, Apology, I.3, pp. 889).

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Christ (collegio unius Ecclesiae Christi), and they may certainlyassociate together for the purpose of study (collegium studii).109

A private society (collegium autem privatum), Aquinas contin-ues, will be part of a public society (publici collegi), just as ahousehold (domus) or family (collegio alicuius familiae) is partof a city (collegio civitatis). An individual may therefore belong,simultaneously, to a private and a public association, but wherethe private association is a part of a public association, thatindividual is not in fact a member of two different associations,

because membership in the former necessarily entails mem-bership in the latter. Notably, Aquinas in this connectionreadily acknowledges that a cleric cannot be attached to twodifferent churches. However, he insists that the same does notapply to other associations, including a public association suchas a city or a kingdom, because the same man can be a citizenof two cities (unus et idem homo potest esse civis in duabuscivitatibus).110 In drawing these careful distinctions and inclaiming that a person can be a citizen of two cities, Aquinasgoes beyond Aristotle in significant 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 amuch wider scale, such as kingdoms (regni), nations (gentes)and provinces (provincia), themselves composed of a multi-plicity of households, villages, towns and cities. A nation isclearly a community on a scale much larger than a city, andAquinas actually goes so far as to say that the good of thenation is more divine than that of the city, family, or person.112

109 Impugn., II.2, ad 2 (Proctor, Apology, I.3, pp. 8990).110 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.



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Moreover, although the term regnum can in certain contexts betaken to refer to the idea of political community in the abstract,when Aquinas uses this word the context often indicates that hehas in mind a form of political community on a scale muchlarger than an individual city. This is made quite clear, forexample, when he writes in De Regno of a kingdom (regnum)containing towns, farms and castles, as well as centres for thepursuit of learning, the training of soldiers and the conduct ofcommerce compared to an individual city (civitas) that con-

tains, he says, places for worship, the administration of justiceand the pursuit of various trades.113 Similarly, in the Summacontra Gentiles, Aquinas describes an entire kingdom as anexample of a kind of universal order which is comprised of alarge variety of sub-ordinate particular orders consisting ofindividuals, 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 com-munity 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) andconsulted 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 inter-

changeable, 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 ref-

erences, see De Regno, I.2.3 [12]; I.3.1 [16]; I.3.5 [20]; I.4.8 [28].

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to be analogous with, if not identical to, the regnum.116 But,unlike regnum, the term provincia has an additional significance,as it evokes the existence of an even wider and more compre-hensive form of political community, namely the Empire(imperium).117 Aquinas could have restricted himself to the termregnum to designate the princely realms and emergent nationalkingdoms of his day,118 as he does in later parts of De Regnoand 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 jurisdictionwithin the Catholic Church.121 Aquinass reference to provincia

116 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 find in Aquinas the view that the Provincia is a more

perfect community, because more self-sufficient, than the Civitas, as the

Civitas is more self-sufficient than the Vicus... [I]t was only a small stepfurther to see the culmination of this hierarchy of States in a universal

Imperium, the finally most self-sufficient 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. 44ff.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 Univer-

sity 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).



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thus calls to mind the most universal of communities: theEmpire and the Church.122 Accordingly, although Aquinas oftenappears to avoid discussion of the Empire,123 he not infrequentlywrites in a way that suggests the picture of a variety of bothco-ordinate and sub-ordinate jurisdictions, consisting of cities,realms and empire. Thus, Aquinas often has occasion to remarkabout the superior power of the emperor over a proconsul andof a proconsul over a governor (and, likewise, the power of thepope over every other spiritual power in the Church).124 Yet,

elsewhere, he also points out that the subjects of one city orkingdom (civitate vel regno) are not bound by the laws of thesovereign of another city or kingdom, since they are not subjectto his authority.125

Finally, Aquinas regularly compares the governance of asingle individual, household, city or kingdom to the divinegovernance of the universe as a whole.126 And thus, whenAquinas claims that the community of the entire universe(tota communitas universi) is itself a perfect communitygoverned by the eternal law of divine providence, the pictureis indeed made truly universal in scope.127 But while this

122 Eschmann, On Kingship, 10, note 23, observes that nothing is very

definite 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 con-

frontations 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 com-

munitatis universi) and ST, I-II, 100.5 (communitatem seu republicam homi-

num 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].

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picture is undoubtedly hierarchical,128 it is a hierarchywhich includes a remarkable diversity of jurisdictions. Thus,although Aquinas regards human beings and angels to bepart of the one hierarchy of rational creatures under God, hemaintains that there is a real sense in which they live underdifferent hierarchies, just as those, he says, that cannot begoverned in the same way by a prince belong to differentprincipalities and, therefore, under one king there are dif-ferent cities, which are governed by different laws and

administrators.129

This progression starting with the individual; moving pro-gressively through the categories of household, neighbourhood,city, kingdom and province; and culminating in the Empire issuggestive of what Otto von Gierke considered to be typical ofmedieval political thought: the conception of a universal orderconsisting of a manifold and graduated system of intermedi-ating units lying between the individual on the one hand, and auniversal empire and church on the other.130 In all of this,therefore, Aquinas was adapting the Aristotelian account of thecity-state to a medieval institutional context in which there was a

wide range of jurisdictions, ecclesiastical and secular, rangingin scale and complexity from the smallest rural village to theempire and church as a whole.131 The spiritual jurisdiction of the

128 See ST, I, 108.18 and 112.14, where Aquinas describes a graded

hierarchy of angels, fulfilling 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. Com-

pare Dante, De Monarchia, (c. 1312), I:3ff., discussing the government of the

household, village, city, kingdom and empire. I have here used DonaldNicholl (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 Vinogradoff, Feudalism, in Cambridge Medieval History (Cambridge:

Cambridge University Press, 1924), Vol. III, p. 458.



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church stood alongside of, and in some respects was taken to besuperior to, the secular jurisdiction of the state.132 Moreover,legal historians point out that spiritual and secular authoritywas distributed among a diverse range of specific jurisdictions,involving varying degrees of autonomy, hierarchy and corpo-rate representation.133 Within both the spiritual and secularspheres there were particular, partially independent or autono-mous spheres of jurisdiction.134 And most of these jurisdictionswere organised at a local, regional, provincial and universal

level, thus forming a hierarchy from the most specific to themost general.135 As Gerd Tellenbach has explained,

In the eleventh and twelfth centuries there seems to have been an intensi-

fication 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 defining the boundaries of

spheres of influence 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 definitions.136

Government in these various jurisdictions, particularly athigher levels within a particular hierarchy, might be described(as will be seen) as a kind of mixed constitution, combiningelements of monarchy, aristocracy and democracy. However,the composition of such governments, while formally mixed,

132 For the relevant documents, see Brian Tierney, The Crisis of Church

and State 10501300 (Englewood Cliffs, 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.

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was in fact dictated by complex systems of corporate repre-sentation, organised into a kind of quasi-federalism which,while in some respects hierarchical, involved a very signifi-cant 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 self-

government.138

In this context, bodies that exercised wider and superiorjurisdiction were composed of representatives of subordinatebodies which exercised relatively narrower and more specific

jurisdiction. Such was the case for chapters and councils of theChurch at a diocesan, provincial and universal level, for thediets and parliaments of the Empire and nascent kingdoms, aswell as for the provincial and general chapters of the variousreligious orders.139 Likewise, individuals who held specific non-

hereditary offices such as bishops and pope, abbots and

137 Gierke, Political Theories of the Middle Age, 2021; Frederick Mait-

land, Roman Canon Law in the Church of England (Cambridge: Cambridge

University Press, 1898), pp. 101105; Finnis, Specifically 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 Tier-

ney, A Conciliar Theory of the Thirteenth Century, Catholic Historical

Review 36 (195152) 415, 429431; Post, Roman Law and Early Repre-

sentation, 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.



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priors, university rectors and emperor were typically electedby representatives of the constituent bodies over whom theyhad jurisdiction.140 A flourishing system of corporate repre-sentation by delegates was, as a consequence, well establishedthroughout western Europe by the year 1300.141 Despite theclaims of some popes and emperors to pure monarchical rule,other authoritative voices insisted that they must govern inconjunction with their colleges and councils.142 Moreover, suchregimes of

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