Print Story Marsilius of Padua on why human law is the only law
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By lm (Mon May 03, 2004 at 02:56:33 AM EST) (all tags)
Why does Marsilius of Padua say that only human law is law in this world; i.e., why are not natural law (jus naturale) and divine law to be considered law in this world?

Marsilius of Padua divides law into four sense: a sensitive inclination to an action or passion, any exemplar or measure used as a model, divine law concerning rewards and punishments on a future day of judgment, and human law concerning matters of civil justice and benefit. The first two of these Marsilius considers to be irrelevant to the question as they are not laws in any sense that matters to a discussion of political life. The third (divine law) is held to not operate in the present world, but in the next by Marsilius as it will not be enforced until the future day of judgment. The last of these (human law) is divided by Marsilius into two components, coercive force and natural law (jus naturale), of which only one component, coercive force, is necessary for law to be law.



Marsilius defines the essential element of law to be coercive force. While a law needs the moral element of jus naturale to be perfect in Marsilius' view, he does not think it necessary for a law to be perfect in order to be a law. A law lacking this moral component may very well be unjust, but Marsilius considers it to be a law nonetheless as it is enacted as law and backed by the coercive force of the state. As long as a law is enforced by coercive force, it is a law in Marsilius' view.

Marsilus does admit that there is a natural law (jus naturale) that can be observed in all places as argued by Aquinas. This law, however, Marsilius rejects as truly being law unless it is enacted as human law by the state and, hence, enforced by the coercive force of the state. Further, despite the fact that natural law (jus naturale) can be observed in all places, not all people understand it. Natural law, then, in the view of Marsilus fails two of Aquinas' criteria for a law to be law, being rational and being promulgated to the whole people. If not everyone understand natural law, as is argued by Marsilius, then it cannot be said that natural law is promulgated to everyone and natural law cannot truly be law. Marsilius also points out that natural law must be accepted on faith rather than being reasoned to and, as such, cannot be a rational measure. Marsilius differs from Aquinas on this because of Marsilius' distinction of faith and reason being entirely separate that Aquinas does not share.

Divine law, in the view of Marsilius, shares the same cardinal problem as natural law, it is not presently enforced by coercive force. Divine law, per Marsilius, is entirely concerned with a future judgment and has no temporal enforcement. Marsilius raids the Christian scriptures to prove his point and cites Jesus' explanation to Pilate of His kingdom being yet to come and Jesus' submission to the Roman authorities to the point of death. If divine law were active in the present world, Jesus would not have submitted to the coercive force of the secular state, nor would Jesus have pointed out that his kingdom was yet to come.

Marsilius also points out that our everyday observations point to the fact that God does not enforce divine law in this world. Marsilius suggests that people commit many immoral deeds in this world and are not punished by coercive force except where their immoral deeds violate the civil law as well as the divine law.

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Marsilius of Padua on why human law is the only law | 6 comments (6 topical, 0 hidden) | Trackback
This is the last one by lm (6.00 / 2) #1 Mon May 03, 2004 at 02:57:30 AM EST
Now I just have to make sure that I have ~ 5,000 words of content memorized and go take the final.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic


Interesting reading. by ana (6.00 / 2) #2 Mon May 03, 2004 at 03:11:07 AM EST
Thanks for sharing it with us.
K5: Because that dead horse ain't gonna beat itself --Armaphine
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I'm glad you liked it by lm (3.00 / 0) #3 Mon May 03, 2004 at 03:22:47 AM EST
I thought that the ideas were pertinent enough to share, so I did. I probably would have gave up around #4 if there had not been substantial encouragement going on behind the scenes in addition to the complaints and encouragement posted in my diary entries.

What I think is most interesting is that ancient and medieval political philosophy seems to anticipate most modern political philosophies. For example, Marsilius anticipates just about everything that Machiavelli has to say and basically defines the state in the manner to which modern anarchists are reacting. You can see echoes of Marsilius' thinking in the secularism of much of Europe (especially France) and in Turkey and other states.

Thanks again for your kind words and may the bright colors of your wardrobe continue to add flourish to the world.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
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I concur with ana by cam (3.00 / 0) #4 Mon May 03, 2004 at 08:28:20 AM EST
Very interesting reading. Please share more of your notes with us.

cam
Freedom, liberty, equity and an Australian Republic
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interessin' by Patriclus (3.00 / 0) #5 Mon May 03, 2004 at 11:33:51 AM EST
a few thoughts posed as a response to your diary but what may not be coherent (or whatnot) enough to respond to (themselves (?)) or even be considered other than as mere thought.

----------------------------

1. Four kinds of law declared to exist. Fixing to figure what these mean in terms more concrete to my own mind. Examples arise:

Of the first -- regarding inclination to action or passion. I am thinking of this as akin to a law of physical science. Gravity, e.g., will incline a rock towards the earth; or, the law (let's say) of (if I can fudge this adequately) vengeance will incline a person to react to an act taken to be offensive.

Of the second -- regarding an exemplar or model: I am thinking of laws of social science, such as economics. The law of marginal utility posits that a person will value an additional unit of a good less highly than he will the previous unit, and from this exemplar or model we can presume that he will forego the additional unit more readily.

Of the fourth -- human law --  what's also known as civil law, I presume to understand you to say: measures taken by means of coercion, or,(?) measures undertaken in accordance with the rules found by way of right reason.

I don't have this last one right.

Etc.
-Patriclaus


My apologies for the lack of clarity by lm (6.00 / 1) #6 Mon May 03, 2004 at 12:08:56 PM EST
Fortunately, I was able to be more precise during my exam this afternoon.

The first sense of natural law corresponds to lex concupiscientiae, the natural inclination of the human being to act or feel a certain way. Marisilius follows Aquinas in rejecting this as an actual law. It isn't rational and since it isn't a rational measure it can't be law. As it isn't a law at all, it is irrelevant to Marsilius' position.

The second sense of natural law resides on Plato's theory of forms. There is a immaterial, eternal form of a chair that is the model for the creation of material chairs. Even if this notion of forms as law is true, it would be irrelevant because it is so vague that virtually every idea qualifies as a law.

Human law, which is the same as civil law, has two components for Marsilius. The first component is that it is enforced (made law) through the threat of coercive force. The second component is natural law (which isn't really a law as I explained in the answer to the other exam question). The first component of civil law, coercive force, is the only necessary component of law. Natural law (jus naturale) makes a law perfect (just) but an imperfect (unjust) law is still a law. Some people mistake natural law for the conclusions of right reasoning, but natural law is really just a matter of faith. Which is why Marsilius rejects it.

The Medieval Sourcebook at Fordham has bits of a translation of Marsilius' only extent work Defensor Pacis online. The Catholic Encyclopedia has a good entry on Marsilius of Padua that gives some of the historical background, but bear in mind that Marsilius was part of the court of Ludwig of Bavaria who set up an anti-Pope in Rome in opposition to John XXII during the Avignion captivity. Hence, the entry in the Catholic Encyclopedia isn't very flattering.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
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Marsilius of Padua on why human law is the only law | 6 comments (6 topical, 0 hidden) | Trackback