Posts Tagged ‘Spain’


October 17, 2013
















October 12, 2013


– Edmund Burke.











Private Eye on the Right-Wing Press’ Attacks on the European Court of Human Rights after the SAS Shooting of the IRA in Gibraltar

August 13, 2013

Looking for more information yesterday on Private Eye’s account of how Thames Television lost its broadcasting license due to Thatcher’s anger at its documentary, ‘Death on the Rock’, I came across a piece in its ‘Hackwatch’ column reporting the attacks by the Right-wing press on the European Court of Human Rights for their judgement on the actions of the SAS. It ran:

Hackwatch: Rock Bottom Revisited

In February 1989 the Eye published Rock Bottom, a pamphlet about the SAS shooting the previous March of three IRA bombers in Gibraltar. Its main conclusions were:

1. That the terrorists’ plan to set off a bomb in Gibraltar on 8 March had been well known to intelligence officers in Britain and in Spain, who closely followed the three from Malaga to Gibraltar and never once lost sight of them.

2. The Det Chief Inspector Joseph Ullger, head of Gibraltar special branch, had admitted at the inquest that the terrorists had been allowed on to the Rock without hindrance, though the authorities knew what they looked like, what passport aliases they were travelling under and what car they were driving.

3. That the failure to stop and arrest the terrorists before they got to Gibraltar was crucial to the entire operation. Either the authorities knew there was a bomb in the car and that the terrorists could detonate it, in which case they were putting a substantial section of the Gibraltar population at risk; or they thought or knew there was no bomb in the car (as there wasn’t) in which case there was no danger of a bomb being detonated.

4. That the only realistic conclusion from these facts was that the terrorists had been deliberately allowed into Gibraltar so they could be killed by the SAS – and that this was unacceptable lynch law.

5. That the lynching had been covered up by the British government, especially at the Gibraltar inquest.

6. That the government was supported to the full in its cover-up by its agents in the press, notably the Sun and the Sunday Times, which waged an hysterical campaign against one of the few attempts in the British media properly to report what went on Gibraltar: Thames TV’s Death on the Rock.

The majority verdict of the European court of human rights goes along with points one, two and three. The court refused to accept point four, the ‘execution plot’ theory, but could provide no other reason the terrorists were not arrested at the border.

One reason for the court’s failure to explain such an inexplicable lapse by the authorities was lack of information. Pre-planning by British intelligence about what it would do to the terrorists once they arrived at Gibraltar was specifically barred from the inquest by a flow of our old friends, “public interest immunity certificates” (gagging orders). The judges did not demand a lifting of the gagging orders, even if they were empowered to do so. Accordingly, without the necessary intelligence information, they were reluctant to jump to the “trap” conclusion reached by the Eye.

The European court of human rights was set up after the war, among others by Winston Churchill, as a “bulwark against fascism”. A majority verdict finding the British government guilty of breaching article two – the right to life – might be expected to be greeted in Britain by a moment of humility, even apology. Instead the air has been thick with the delicious noise of law ‘n’ order fanatics denouncing the due process of law and order.

The Sun launched into a vitriolic attack on the court (urging its readers to ring in and abuse any court official they could find who spoke English, which some of them did in racist language embarrassing even to the Sun editors).

The judges who voted with the majority were denounced one by one. In Lithuania, for instance, the Sun shrieked on 28 September, “three people had been sentenced to death for murder” (no doubt the Sun forgot its many angry campaigns for the return of capital punishment in Britain). Greece was savaged for imprisoning Jehovah’s Witnesses. In Luxembourg “five prisoners were held in solitary confinement over the legally allowed limit” and in Spain “prisoners were beaten with truncheons”. Civil liberties campaigners in Britain can look forward to future Sun campaigns against the imprisonment without trial of hundreds of people seeking asylum to Britain or the new “head-opener” truncheons so eagerly wielded by the British police.

Why had the judges done such a terrible thing? Alan Clark in the Mail opined: “We have never been forgiven for leaving the ERM.” But Peter Hitchens, political correspondent of the Daily Express, had discovered the real reason. “Could it be,” he asked, “partly because these judges are infected by the sort of ‘correctness’ which has spread into the governing class from the campus revolutionaries of the sixties”? (including even perhaps the vigorously correct York organiser for the International Socialists in the mid-1970s -a certain P. Hitchens).

But no one could touch the master. Andrew Neill filled his column in the Daily Mail (26 Sept) with a hymn of hate against the judges, and followed this up with an almost identical piece in the Sunday Times (29 Sept). Once again Neill singled out the Thames programme Death on the Rock for special abuse, especially for its use of witnesses. Among matters not mentioned in either article were

1. The huge sums in libel damages paid out by the Sunday Times for the hysterical abuse of honest witnesses to the programme. (Neill faces yet another action from Carmen Proetta for shooting his mouth off recently in the Irish media).

2. The payment by the Sunday Times of £2,000 to a convicted drugs smuggler for “information” to smear one of the Gibraltar witnesses. (The information never materialised and the prisoner hopped it with his loot to the Cost del Sol).

3. The denunciation of Neill and his Insight editor by at least three Sunday Times journalists who complained that their reports and assessments on the ground were twisted to feed the paper’s vendetta against Thames TV.

4. The fact that the award-winning Death on the Rock was subjected to one of the most thorough independent investigations in the history of the British media – and commended and cleared of all the serious charges. The investigation was headed by Lord Windlesham, a former Tory minister’.’

Private Eye, 6 October 1995, p. 11.

The shooting of the IRA terrorists by the SAS was therefore the action of a death squad, rather than soldiers governed by the rule of law. The government covered this up using gagging orders, and when the European court of human rights nevertheless ruled against it, the Right-wing press subjected the court to a campaign of denunciation and abuse. The worst of these propaganda pieces was written by Andrew Neill, now appearing as the fair and balanced host of the BBC’s Daily Politics.

Guns Will Make US Powerful. Obamacare Will Make Us Fat

August 7, 2013













How Committed Have the Lib-Dems Ever Been to the NHS?

July 16, 2013

Looking at the way the Lib-Dems have given their full support to Conservative attempts to dismantle the Health Service, I wonder how committed they have ever been to it. I raise that question because I can remember the statement made about it by the Two Davids in their campaign during the 1987 elections. at the time the Conservatives were considering its privatisation. Lord North wanted the welfare state to be dismantled, and the NHS sold off. Messers Steel and Owen, marching about the country in their woolly sweaters, declared that it shouldn’t matter whether the Health Service was public or private. What should matter was that treatment was free. Looking back at it, it seems their support for the NHS in the face of demands for its privatisation by New Right was tepid.

I also wonder how far Clegg is influenced by other European health services. A Swiss friend once told me that in Switzerland, health care is partly paid for through insurance contributions. The Swiss government will pay for the health care of the very poor. The rich pay for their medical treatment through insurance, as in America. Most people pay for their treatment through a mixture of private and government insurance cover. Clegg’s wife is Spanish, and I wonder if that’s the case in Spain. It’s also the case in some high-spending American states. This might make it attractive to that part of the British establishment that wishes to import the American system, without going as far as the more extreme states that have attempted to leave it as much as possible to private insurance.

Christianity and the Origins of Democracy – The Sixteenth Century: Part 3

August 13, 2008

Huguenot View that Power of KIngs Limited and established by God for Benefit of the People; Constitutions established through the Will of the People

Goulart’s Memoires de l’Estat de France sous Charles IX, and the treatises Du Droit des Magistrats, the Dialogue d’Archon et de Politie and the Vindiciae contra Tyrannos, all considered that humanity had an obligation to God to obey properly constituted political authority, and that normally rebellion against authority was a rebellion against God. Nevertheless, kings were bound both by natural law and the law of Scripture. Their authority is limited, and they were established by God for humanity’s benefit. The Vindiciae quotes the medieval maxim, ‘magistrates were created for the people and not the people for magistrates.’ 23 All forms of government, monarchy, aristocracy and democracy, and all princes and magistrates were established by the consent of the people and it is through the will of the people that constitutions continue to exist. ‘Politie’ in the Dialogue even states that hereditary monarchs are to be regarded as elected by the people.

View Memoires that Monarchy was always Checked by a Parliament, and Duties between King and Subject Reciprocal

The Memoires states that there have never been a monarchy that did not also have a representative assembly to check the monarch’s power. As monarchs derived their power from the people, they held it subject to certain conditions and were thus required to fulfil their duties to their subjects, just as their subjects were required to obey and fulfil their duties to them. This view, that secular power was constrained by the ends for which it existed, was related to Gerson and Pierre d’Ailly’s view that the pope’s power was limited by the ends to which the Church existed.

View of Vindiciae that Power of Ruler based on Contracts and Covenants between Himself, God and His People

The Vindiciae furthermore followed Calvinist Covenant theology in expressing the relationship between God, people and the prince as a series of contracts and covenants. The prince in his contract with God bound himself to serve God and to ensure that the people also did so. The people also bound themselves before everything else to worship God properly. The prince and the people were responsible to God for each other. The prince would be held responsible if the people abandoned the worship of God, while the people are also responsible if the prince becomes a traitor. There was also a second contract by which the prince bound himself to rule justly and respect and maintain the rights of each one of his subjects. The people were bound to obey him so long as he did so. The moment he violated the contract, they could disobey and resist him.

View of Vindiciae that Subordinate Authorities in Country – the Inferior Magistrates – have Power delegated to them by the Sovereign People to Check Power of Monarchy

In fact the Vindiciae declared that the true lord of sovereign of a country were the people, and that tyrannous kings were thus traitors and rebels to the sovereign people. Private individuals, ordinary citizens, did not, however, have the right to rebel against an unjust monarch. This could only be done by the permanent political representatives of the people. In the Du Droit and the Vindiciae, these were the feudal aristocracy, who originally had been normal magistrates, the parlements and the estates-generals. As the people’s delegates, they shared sovereignty with the monarch and had a right to depose him. These aristocrats and officials constituted the inferior magistrates Calvin considered safeguarded the people’s rights and the contracts that formed the basis of society.

Huguenot View that Power to Resist Monarch not Matter of Majority Vote, but Magistrates also represented their Particular, Individuals Communities

These treatises did not consider that resistance or rebellion against a monarch could be achieved through a majority vote, which is one of the central tenets of contemporary democracy. Indeed the dialogue states that even if the majority of people support a tyrant, the minority still have a right to rebel. Nevertheless, they did believe that a magistrate appointed or acting for a particular community, such as the local estates-general for a province or a magistrate or group of magistrates for a city, could rightfully raise a rebellion as the proper representative of that province or city.

Huguenots Not Democrats, but Placed Kings Partly at Level of Ordinary People through Sharing Common Obligation to Fulfill Duties of Vocation to the Best of One’s Ability

The Huguenots were not democrats and had no intention of abolishing the traditional social hierarchy, and viewed the aristocracy, not the ordinary people, as the true guardians of the constitution and liberty against the power of the monarchy. Nevertheless, despite the view that kings were, like other forms of government, ordained by God, from whom they received their authority, the view that they had been established and had the powers limited by covenants removed the personal charisma that surrounded the monarchy and gave it part of its immense prestige and authority. Kings had occupied a divinely appointed position above their subjects in the cosmic hierarchy. While they still did so, the most important aspect of monarchy was simply how well they performed their duties as rulers. This was indeed a religious duty, but everyone also had a religious duty to perform their occupation well, regardless of their particular social position. In this way the king was thus placed on the same level as the rest of humanity, as another member of society required to perform the responsibilities of his occupation properly and well, albeit at a particularly exalted level of society. 24

View of French Roman Catholics that Royal Power Limited and that Political Authority held by Estates-General

French Roman Catholics also argued that the power of Crown was limited and that the people had a right, through constitutional institutions, to resist unjust legislation or depose the king as they attempted to defend Roman Catholicism against the spread of Calvinism, and particularly the possibility of the coronation of a Huguenot, such as Henry of Navarre, the future Henry IV, as king. The Catholic League formed in 1576 included members who believed that estates-general had a constitutional role in government and shared sovereignty with the king. The League expressed this view of the political role and authority of the estates in its first declaration of 1575. The assembly of the estates at Blois in the same year also expressed their support for it. Thirteen years later in 1588 it was declared that the king should officially recognise the right of the citizens to resist by force any attempt at taxation that did not have the estates’ authorisation. The Miroir des Francais, published in 1581, stated that the estates had the power to depose the king if he acted unlawfully. A pamphlet published by the League in 1589 similarly declared that the king had to obey the estates just as the pope had to obey a general council. If the king refused to act according to the advice and wishes of the estates, he could be deposed.

View that People Possessed Right to Depose Unjust Kings

Many of the pamphlets written by the League to support their opposition to Henry of Navarre, stated that kings were established by the people for their welfare, and that sovereignty thus resided with them, rather than with the king. Thus, kings who acted unjustly and who threatened to harm the kingdom could be lawfully deposed. Some of the writers considered that the parlements had the power to do this, while others limited to the aristocracy and other government and legal officials. One of the major League writers, Jean Boucher, a doctor of theology at the University of Paris and Prior of the Sorbonne, in his De justa abdicatione Henrici tertii of 1589 argued that the people had the right to depose the king. In a volume of sermons, published in 1594, he stated that sovereignty resided with the people in the states-general. The French people had chosen to establish a monarchy as their particular form of government. Nevertheless, they retained the right to depose the king, and even to abolish the monarchy altogether. These rights were inalienable, and it was the estates-general who expressed the will of the people.

Ability of Community to Establish Form of Government it Wishes, and Limit Authority of Monarch

Similar views were expressed by the author of the book De Just Reipublicae of 1590. This stated that society and government had both arisen to satisfy human needs. The state had developed naturally, and communities had the ability to establish for themselves the form of government they considered most suitable. This ability, and the ability to elect and depose monarchs, was established by the nature of things as created by God and the rational nature of humanity. Kings and other magistrates were established according to human reason to perform certain functions, such as the protection of their subjects’ lives, property and their freedom. Kings did not possess a hereditary right to rule, and the people had the power to establish limits to the authority of the monarch, or even reject monarchy as a form of government. The book did not, however, state that sovereignty lay with the estates or any other institution or group. He did, however, state that once a king was declared to be a tyrant, anyone had the right to assassinate him.

View of Some Jesuits that Secular Authority Independent of Church, Delegated to King by People, who can Depose Heretic Prince

Some Jesuit writers such as Robert Bellarmine and Luis Molina also argued that secular authority was independent in origin from the church, having been established by the community for its benefit in this world. The king thus received his power from the people, and his authority was therefore limited and subject to certain conditions. People normally had an obligation to God to obey the prince, but this obligation did not exist if the king was a heretic. Furthermore, everyone, including the king, is equal in divine law and before the pope. Molina furthermore considered that the people had a right to depose the king as its delegate. This was done not by the pope, but by the state, although the state may be required to do so in accordance to a decision by the pope.

View of Jesuit de Mariana that Government Established by People in Remote Antiquity to Provide Security and Protection

The Spanish Jesuit, Juan de Mariana, who during his career was a lecturer at the universities of Paris and Rome, also believed in the sovereignty of the people and their right to depose tyrants and heretical princes. In his De Rege et Regis institutione, based on his studies of Spain’s history and constitution, he considered that government had similarly arisen in response to humanity’s primeval need for security and protection. Originally, humanity had lived in a state of nature very much like the animals. However, they formed groups and societies in order to protect themselves. In doing so, they recognised certain basic rights, such as the right to property. This, unfortunately, resulted in humanity, which had been relatively free of these evils in the past, becoming increasingly greedy, deceitful and treacherous, and requiring increasing levels of law to restrain and punish them.

View that Princes Granted Power Conditionally by Sovereign People, who Exercised Power through Govermental Assembly

Princes had originally been granted their power by the community. This grant of power was conditional, however, and continued to be made from day to day. He also considered that the community reserved to itself the right to levy taxes and pass legislation, and also possessed the right to establish the particular form of religion and the right of succession of a monarch in the state as fundamental and unalterable institutions. The community was only able to put its ability to pass legislation and raise taxes into action through a representative assembly, such as the estates. Although the estates shared their power with the king, ultimately authority and sovereignty lay with them as they represented the community and its will that first established the monarch.

Ability of Governmntal Assemblies and Private Individuals to Discern and Depose Tyrants

The people had a right to restrain by force, rebel against or even depose and kill a prince who exceeded the limits of his authority. He did not consider that private individuals had the right to do this on their own initiative, but that they should only do so when authorised by the representative assembly. Any king that acted against the decision and advice of the estates, or refused to allow them to meet, was a tyrant. Princes, who were revealed as tyrants either by their own actions or those of the estates, could be deposed and killed by private citizens. People naturally possessed the ability to discern tyrants, just as they naturally possessed the ability to distinguish between right and wrong. Thus, although Mariana was a Jesuit who believed that the Church definitely had a power to direct political decisions, he also viewed the state as a product of the nature of humanity and justified by humanity’s need for it. He thus appears to have developed, with some qualifications, a conception of the secular, national state, based on earthly needs, such as those of peace and security, as a complete entity in its own right, independent of the church.

View of Scots Philosophers that KIngs’ Authority Delegated to them by Sovereign People, Who could Depose Them

The influential Scottish philosophers John Major and George Buchanan also believed that sovereignty lay with the people and that a king who overstepped the limits of his authority could be deposed by the estates. John Major was a historian as well as a philosopher, whose History of Great Britain was one of the great works of sixteenth century British history. His political philosophy was strongly based in medieval scholasticism. He considered that the sovereignty of the people was absolute, and that it was merely delegated to the king. Kings should not be given the power to raise taxes arbitrarily, except in times of special emergency. Those monarchs who ruled unjustly could, if they refused to be corrected, be deposed and executed. He believed that this could only be done by duly constituted authority, and not solely by acts of private violence. The estates, however, possessed at all times the authority to so act against a tyrant. Major stated in his History of Britain that these principles had always been a fundamental part of the Scottish constitution.

View of Buchanan that Primitive Humans formed Societies through Natural Law and Love of Company and Sense of Reciprocal Obligation Implanted by God

While Major’s views were derived from medieval philosophy, Buchanan was a Renaissance humanist. He lectured at Sainte Barbe and Le Moine in Paris and taught Latin at the universities of Bordeaux and Coimbra. His book, De Jure Regni apud Scotos, although published in 1578, appears to have been written much earlier, possibly before 1570, in order to justify the deposition of Mary, Queen of Scots. Like Mariana, Buchanan believed that originally human existence had been extremely primitive without law, with people living either in huts or in caves, wandering about the earth. Humans started to form societies, not because of any feelings that such societies were useful, but because they were guided by natural law and the innate human inclination to form societies. God implanted in everyone a natural love of company and a sense of reciprocal obligation. In that sense, states and communities, for Buchanan, were founded by the Almighty. Of the various communities and associations humans form, he considered states to be the most pleasing to God.

Kings Established by Will of the People, who Impose Conditions on, and Can Depose Him

Kings were established solely for public purposes by the will of the people. The law nature prohibits any one individual from possessing power over another, so the people established kings by delegating their authority to them. Nevertheless, there were limits set to royal authority, Law was made by either a representative assembly or by the people themselves, possibly through a plebiscite, and the king was bound by it. As the king’s power is merely delegated to him by the people, he is responsible to them, and they can remove these powers from him when there is a good reason for doing so. Although monarchies are hereditary, this does not guarantee their power or right to rule, as they were granted this power through legislation passed by the people, which the people can also repeal. Kings were granted their authority through a contract between themselves and their subjects. If they broke this contract by not governing for the benefit of their people, or by claiming greater powers than those originally granted to them, then they were tyrants who could be justly deposed.

View that War against Tyranny the Most Just War, and that Political Decisions May Be Properly Settled through Majority Vote

Indeed, Buchanan regarded war against a tyrant to be the most just of wars, and considered that not only a tyrant’s oppressed subjects, but that every human had the right to kill them. Tyrants were criminals who should be punished like anyone else who broke the law. Unlike other contemporary political theorists, who believed that sovereignty lay with the people, but did not consider that political decisions could be decided simply by the majority, Buchanan did believe that the decision of the majority was sufficient to pass legislation as humans were never unanimous in their views. This view, that the majority can make decisions on behalf of the wider community, was one of the great practical political discoveries of the Middle Ages and has naturally been accepted by politicians. 25


  1. Allen, History of Political Thought, p. 316.
  2. Koenigsberger and Mosse, Sixteenth Century, p. 279.
  3. Allen, History of Political Thought, p. 341.

The Medieval Christian Origins of Western Democracy: Part 2

July 19, 2008

In the first part of this essay discussing the medieval Christian contribution to the rise of democracy, I discussed how the medieval idea that political authority lay in the whole of the community, and that monarchs, as well as their subjects, were bound by the law, led to the establishment of constitutional checks on the power of the monarch. Some states went further, and established systems of government in which power was effectively exercised by an assembly, rather than the reigning monarch, such as medieval Novgorod, or attempted to abolish feudalism altogether and establish a republic ruled by the citizens in opposition to the aristocracy. European monarchs had ruled with the advice of assemblies of their lords since the early Middle Ages. In the thirteenth centuries these assemblies, particularly those in England and Spain, began to establish themselves as parliaments. Similar assemblies of the aristocracy, knights and representatives of the municipal elite from the towns were also held in France, Germany, Italy and the papal states as part of the system of government. Such assemblies received powerful philosophical and theological support from Thomas Aquinas and other political theorists, who considered that humans were equal in their essence, stated that laws should be directed towards the common good rather than the personal benefit of the individual ruler, and maintained that the people had the right to depose an unjust monarch.

In the second part of the essay, I will discuss how Aquinas considered that the people were also the source of law as they had produced the customs that governed European society. This view was part of Aquinas’ wider view that laws held their authority through the consent of the people. Although he considered monarchy to be the best form of government, Aquinas also considered that the best constitution was one that included elements of monarchy, aristocracy and democracy, and thus gave philosophical and theological support to the parliamentary assemblies that advised monarchs.

The political theories that resulted in the establishment of secular governmental assemblies also led to similar developments in ecclesiastical government with the emergence of the Conciliarist movement that attempted to establish a general, ecumenical council as the governing authority in the Church, with authority even over the pope. The authority of both political and ecclesiastical governmental assemblies were partly based on the notion of mandated authority, which had been developed by Canon lawyers to establish the legal and constitutional basis for the ability of one section of the church to make decisions on behalf of the wider community. This idea of delegated authority also supported the constitutional position of the feudal councils that advised monarchs, so that they gradually developed into parliamentary assemblies that had powers to check the king on behalf of the subjects.

Furthermore, Canon lawyers stressed that law was rational, and that Natural Law and Roman Law affected the whole of humanity and transcended national boundaries, thus producing a system of international law that allowed disputes between nations to be settled peacefully. The insistence that law must be fundamentally rational resulted in the British constitutional attitude that viewed any law that did not possess a basis in reason was invalid.

I will also discuss how, during the Peasants’ Revolt in England, the serfs argued against their social status partly on religious grounds. Finally, although the medieval states that were governed through parliamentary assemblies were certainly not democratic, as they reserved active political participation only to those members who were considered to be the best qualified, I will nevertheless discuss how they provided the basis for later constitutional developments that made these early governmental assemblies more democratic and allowed them to develop greater power to check the monarch and act as institutions of popular government.

Recognition in Medieval Law of People as Source of Popular, Customary Law

While Aquinas himself did not state whether either the people or their ruler was the source of law, he did recognise that people, rather than the authorities, were the source of the customary law operating during the Middle Ages. Customary law, however, was nevertheless rational in that human actions, like their speech, were the result of reason. Princes had the right to alter laws, but this had to correspond to the common good. Following the Roman legal theorist, Ulpian, Aquinas considered that new laws should possess evident utility. Aquinas argued that the law should correspond to custom as much as possible, as law lost its force when custom was removed. Medieval Canon law viewed customary law as ‘unconstituted postive law’, in contrast to the ‘constituted positive law’ promulgated by an authority such as a pope or monarcy. Unconstituted positive laws were the customs of a particular community, which were considered to derive their power from the implicit consent of the communities, which practised them. Other legal theorists, such as the Canon lawyer, Rufinus, considered that custom only had legal authority if it was recognised and permitted by the authorities, who had the power to alter it. 44 Thus law was considered to derive its power to a certain extent from the consent of the people who lived by it and who, in their day-to-day activities, produced new customs and legal procedures. In the 18th century conservative political theorists, such as Edmund Burke, emphasised the role of tradition in maintaining a nation’s culture and stability against the political turmoil and violence of radical constitutional change produced by the French revolution. In the 20th century libertarian economic theorists, such as Von Hayek, also stressed the immense importance of traditional political institutions in promoting social and economic stability.

Aquinas’ View that Best Constitution Included Elements of Monarchy, Aristocracy and Democracy, and that this Existed in Ancient Israel

Like Aristotle, Aquinas also considered in his Treatise on the Law that the best regime was a ‘well-combined constitution’, which included features of monarchy, aristocracy and democracy. 45 Such a regime combined unity, rare virtue, and popular consent. 46 Aquinas considered that this mixed constitution was found in ancient, noting that Moses governed Israel, according to Deuteronomy 1:15 through the chiefs of Israel’s tribes and wise men, and, according to Exodus 18:21, able men who had been chosen from all the people. Thus Aquinas believed that there should be limits on royal power, and advocated a form of constitutional monarchy. 47 Aquinas was almost certainly influenced by the feudal councils of great lords in his view of the aristocratic element in such a mixed constitution. There were, however, no contemporary political institutions that may have influenced Aquinas’ view of the democratic element, and historians have therefore considered that he was either considering the representatives of the towns that were sent to the assemblies of southern Italy, Germany and the Papal States, or simply accepted Aristotle’s view on the subject without reference to any contemporary institution. 48

Thus, while Aquinas certainly was not a democrat, and favoured monarchy as the best form of government, he also recommended constitutional limits on the power of the monarch, viewed sovereignty as ultimately deriving from the people and recommended that the best constitution included a democratic element, as well as monarchy and aristocracy. This ideal constitution, for Aquinas, had existed in ancient Israel. His ideas were further developed to support the deposition of tyrannical kings, and the development of more democratic forms of government. In the 20th century the Roman Catholic political theorists Yves R. Simon and Jacques Maritain based their support of democracy on Aquinas’ political theories.

The Conciliarist Movement and its Attempt to Establishment an Ecumenical Council as Governing Authority in Western Church

The medieval view that sovereignty lay ultimately with the people found radical expression within ecclesiastical as well as secular politics in the Conciliarist movement of the early 15th century. This was an attempt to repair the Schism that had occurred in the late 14th century with the election in September 1378 of Clement VII as a rival pope in Avignon to Urban VI. This Schism, which divided the Church between rival popes in Avignon and Rome, continued for thirty years, so that by the fifteenth century there were three popes claiming leadership of the western Church, John XXIII, Gregory XII and Benedict XIII. The Conciliarist movement was an attempt to end this Schism and restore the unity of Christendom under a single pope by developing the constitutional institutions through which unsuitable popes and rival claimants to the papacy could be deposed.

Initial suggestions for repairing the Schism included arbitration and negotiation between the rival popes and a mutual agreement to abdicate. The University of Paris, however, rejected these suggestions. Jean Gerson, the university’s chancellor, argued that the sovereignty and power to decide ecclesiastical issues, its plenitudo potestatis, lay in the body of the Church as a whole. This sovereignty was duly expressed and exercised through a general ecumenical council. The Conciliarists partly based their ideas on the way the Church held diocesan and provincial synods to solve disputes at the local level, and so recommended that this process should be extended to the Church as a whole to solve the debate that was scandalously dividing the western Church. Thus, Henry of Langenstein argued for such a council, stating that

‘New and dangerous emergencies, which arise in any diocese are dealt with in a council of that particular diocese or a provincial synod, and therefore it follows that new and arduous problems which concern the whole world ought to be discussed by a General Council. For what concerns all ought to be discussed by all, or by the representatives of all.’ 49

Origin of Idea of Delegated Authority of Governing Group from Broader Community in Canon Law to Provide Constitutional Basis for Decisions of Church Councils

In fact meetings of small numbers of clergy, such as cathedral canons and college of cardinals, to decide issues affecting the wider church, such as the whole of the clergy within a particular diocese, or the entire western Christian church, had long been the subject of discussion and debate amongst canon lawyers to investigate by what right the decisions of these individual clergymen could be considered to be binding on their  communities. The canon lawyers solved the problem through the adoption of the idea of mandated authority from Roman commercial law. Late antique Roman law recognised the existence of individuals, termed procurators, the origin of the English word ‘proctor’, who had been granted authority by another to act in their name to conduct business that would otherwise have been inconvenient or impossible for that person. Canon law extended this principle to argue that small groups of individuals, such as a cathedral chapter, also had power mandated to them as representatives of the wider community or group for whom they acted. Thus a cathedral chapter represented the wider Christian community in a diocese in the same way that a Roman procurator acted for his principal, the person who had granted him his power to act for him. 50 When a cathedral chapter thus gave its consent to a bishop’s decision, or the college of cardinals agreed to a particular papal policy, they acted on behalf of each and every member of the wider church, whether of the local diocese or in the whole of the western Church.

Canon Law Idea of Mandated Authority Basis of Constitutional Support for Secular Governing Councils

The theory of mandated authority clearly gave such advisory assemblies great powers and authority. Nevertheless the theory had been developed to solve the practical problem of how each person in the community could be represented in a matter when ‘what touches all should be approved by all’. In the cases of an ecclesiastical issue that affected every member of the church in the diocese, it was difficult or impossible to consult them individually. The idea of mandated authority allowed an advisory assembly, such as a cathedral chapter, to make decisions on their behalf as their representatives. The theory also gave considerable legal support to such councils, whether ecclesiastical or secular, such as the feudal grand councils, parliaments and estates-generals. It thus supported checks on the power of princes and bishops by granting legal rights and status on the councils that advised them. 51 Thus, for historians such as Brian Tierney, ecclesiastical Canon law formed the basis of ‘parliamentary constitutionalism’ – the constitutional rights of parliaments and representative assemblies, rather than monarchs, to make laws. 52

Attempt by Concialiarists to Make Authority of General Council Superior to the Pope

From the view that authority within the Church derived from its members as a whole, expressed and operating through a general council, the movement’s theorists developed more extreme views in which such general councils were therefore superior to the papacy in matters of faith. Furthermore, as the Church was the only infallible earthly institution, it possessed the power to decided church doctrine and correct and depose the pope if his doctrines were incorrect and he was incapable of properly governing the Church. Like Aquinas and the theorists of secular politics, the Conciliarists accepted the subject’s right to resist an unjust ruler, and that the best form of government was a mixed constitution that included elements of monarchy, aristocracy and democracy. These ideas resulted in the declaration of Council of Constance in 1414 that all authority within the Church ultimately derived from such a council, which possessed power over everyone within it, including the pope. 53

This decree has been described as ‘the most revolutionary official document in the history of the world.’ 54 The Council succeeded in ending the Schism by deposing John XXIII, achieving the resignation of Gregory XII, while Benedict XIII was later condemned as a schismatic and heretic. In their place, the Council elected a new pope, Martin V. However, there then followed a period of conflict between the Councils and the papacy, which eventually resulted in the emergence of two Councils, one at Florence and another at Basel, which elected an anti-pope, Felix V. 55 This new period of conflict and schism was eventually resolved in 1460 with the formal condemnation of the movement by Pope Pius II. Pius II had already reconciled the German emperor, Frederick III, to the papacy, and so deprived the Conciliarists of his support. 56

Roman and Canon Law Used also by Secular Courts as International Law for Particular Cases

The constitutional theories and movements that attempted to limit the power of secular princes through the establishment of advisory councils or other checks on their authority, and the Conciliarist movement to subordinate papal authority to a general council of the Church both developed from the interdependence in Europe of secular and Canon law. Both civil and canon law used Roman law, and the revival of Roman law in the 12th century reinforced the canon lawyers’ interest in it. 57 Such was the interdependence between secular and Roman law that when judges and plaintiffs in secular courts were unable to find a way of satisfactory solving a dispute, they turned to Roman and canon law to find a solution. Roman and Canon Law, to medieval lawyers, represented ‘everyone’s general law’, as both were considered to be universally applicable. They thus constituted a ius commune, or international law that could be used to settle disputes when there was a conflict in points of law between two parties of differing legal systems. This system of Roman and Canon law therefore became a ‘peacemaker’s law’ that allowed international disputes to be settled peacefully without military conflict. 58

Medieval View that Law Rational and that Unreasonable Laws therefore had no Force

The medieval Canon lawyers also stressed the rational nature of law, and considered that any law that was unreasonable was therefore invalid. Stoic philosophy had considered that there was a universal Law of Nature affecting human conduct. The Romans identified this Law of Nature with the ius gentium, the universal law that was held to govern the actions of the peoples of all nations. Canon Lawyers identified this natural law with the divine law revealed by the Almighty, which they considered an extension of a natural law. The great canon lawyer Gratian, at the end of his Decretum, declared that the golden rule was the Law of Nature, and that this was superior to all other laws because of its antiquity and dignity, and whose power therefore superceded custom and the legislation of human authorities. The British legal historian Sir Frederick Pollock considered this attitude towards the innate and superior rationality of the Law of Nature to be the origin of the English lawyer’s view that a custom could not be good if it was contrary to reason. It was also for him the origin of the attitude from the 16th to the 18th centuries that a law was invalid if it was held to be against reason and ‘common right’. 59

The thirteenth century Canon lawyer Hostiensis held the same view that laws should be reasonable. In his Golden Summa, extending and commenting on Gratian’s Liber Extra, Hostiensis indeed stated that the divine law revealed by God in Scripture was an extension of natural law, and that any law or judicial decision that was in conflict with rational natural law was invalid and untenable. 60

Conciliarists and Supporters of Secular Governmental Assemblies not Advocates of Democracy

While the Conciliarists considered that the Church’s authority lay in the community of the Church as a whole, and that this authority was expressed and exercised through general councils, they were not democrats in that they did not consider that this meant that everyone should have an equal vote. The extreme Conciliarists believed that everyone, including women, had a right to be heard in the Church’s debates, but considered that only the most important section of the ecclesiastical community was qualified to make decisions. 61

The Conciliarists were not alone in reserving practical political decisions to a better qualified minority, rather than the majority. Secular political theorists, like Marsilius of Padua, who strongly advocated populated sovereignty and rejected any involvement in politics or secular privileges by the Church, also considered that people did not possess an equal right to vote or involvement in politics. In his Defensor Pacis of 1324, Marsilius of Padua argued that the source of legislation was the people, expressing their will through a general assembly, stating that

‘The legislator, or the primary and efficient cause of the law, is the people or the whole body of the citizens, or the weightier part thereof, through its election or will expressed by words in the general assembly of citizens, commanding or determining that something be done or omitted with regard to human civil acts, under a temporal pain or punishment.’ 62 This ‘weightier part’ of the people, according to him, referred to ‘the quantity and quality of the persons in that community over whom the law was made.’ 63 Thus while he appears to have accepted that the whole community did indeed possess the power to make decisions, nevertheless his statement that this could rest in the best-qualified section of the community appears to indicate that he also accepted Aristotle’s view that citizens should participate in the community according to their position in society, with the result that those citizens lower down the social scale would have correspondingly little or no political involvement. 64

Nevertheless, although the Conciliarists were not democrats, their arguments for the sovereign authority of councils, rather than individuals, was a powerful contribution to the development of modern ideas of democracy. The historians Brian Tierney and Francis Oakley, have noted the similarities between the arguments used by the supporters of parliament against the king in 17th century England, such as Philip Hunton, Henry Parker and Charles Herle, and the Conciliarists two centuries previously. Indeed, the Royalist writer, John Maxwell, in his Sacro-Sancta Regum Majestas, had stated that the parliamentarians had been influenced in their idea that the people had the right to depose a monarch by the French Roman Catholics of the League during the Wars of the Religion in the 16th century, and the Conciliarists, including Gerson, Marsilius of Padua and William of Ockham. 65

Common Origin of Conciliarist Movement and English 17th Century Parliamentary Political Theory in Medieval Constitutional Political Philosophy

Historians have also suggested that the Conciliarists spread the idea of constitutional limits on power across Europe through its application to the papacy, thus spreading the idea beyond its use in national politics to the whole of western European Christendom. As a result, they preserved the idea of constitutional checks and balances against the development of absolutism, and spread its popularity throughout Europe. 66 Even if there was no direct link between the parliamentary supporters of popular sovereignty and the authority of governmental assemblies and the Conciliarists, it is possible that both were influenced in their views by the common culture of political philosophy that had developed in Medieval Europe. This common culture of political philosophy continued the medieval view of popular sovereignty, derived ultimately from the adoption of Roman ideas of the people as the source of political authority by the early Church.

Theological Arguments by English Serfs During the Peasants’ Revolt for the Abolition of Serfdom

The later Middle Ages was torn by a number of popular revolts against monarchical, aristocratic and municipal oligarchic authority, such as the Peasants’ Revolt of 1381 in England, the Jacquerie in Paris of 1358 and the revolt of the Maillotins, again in Paris in 1382, the revolts of the weavers of Ghent and Bruges of 1379-82, and the insurrection of the Ciompi in Florence in 1378. They were primarily the result of economic and political grievances against the abuse of power by the ruling elites, and demanded specific reforms to redress them. The English Peasants, however, justified their revolt against serfdom on religious grounds. According to the French chronicler, Froissart, they argued that there were no slaves and serfs at the beginning of the world, and that slavery should not exist except for those that had betrayed their lords. As, however, both serfs and lords were equally human, the peasants had a right to resist their subjection and demand wages for the services they performed for their lords. 67

Attempts to Establish Government by Parliamentary Assemblies on Partially Successful

The medieval attempts to establish systems of government based on advisory councils or representative assemblies, founded on popular sovereignty, was only partially successful. Republican administration of Novgorod was destroyed in the 15th century when it was annexed by the Grand Duke of Moscow, who carried off its bell. Political turmoil and dissension in the Italian republics resulted in the replacement of democracy by muncipal tyrants such as the Sforza, Visconti and Medici families. The English and Scots parliaments became established parts of these nations’ government, as did the cortes in Spain.

Although the estates-general was regularly held in France during the 14th and 15th century, it failed to become an established, constitutional part of the French governmental system in the way parliament had in England. Louis XI finally established the right of the French crown to levy taxes and wage war without calling the estates, which made its last efforts to assert its authority in 1484. 68 The imperial diets in Germany similarly failed to achieve any effective power, and only met occasionally when the emperor required them to consider the levying of extraordinary taxes. 69

The states-general in Germany was nevertheless successful in establishing itself as a representative body for the whole of Germany, where laws were passed through the consent and decision of the majority. Moreover the German princes managed to establish the local estates-general within their territories as constitutional governmental institutions. 70 As part of the landtag – the estates-general of that particular German state, they acted as a constitutional check to the power of the prince, thus creating a form of balanced constitution. 71 In France the provincial estates-general continued to meet and vote on taxes in the fifteenth century until they, like the national estates-general, were ended by the expansion of royal power by Charles VIII. 72

Conclusion:Medieval Governmental Assemblies not Democratic, but Origins of Later Parliamentary Government and Constitutional Limits to Power of Monarchy, partly Produced and Accepted by Theologians, Philosophers and Canon Lawyers

Even when such assemblies did become an established part of a state’s system of government, they were not democracies. Membership of these governmental councils, and the ability to vote in their election, was confined to members of the aristocracy, knights, and municipal commercial elites. Nevertheless, the Middle Ages had succeeded in establishing constitutional limits to the powers of monarchs and the authority of councils to represent the wider people, based on ideas of popular sovereignty, partly based on the arguments of theologians such as St. Augustine and Thomas Aquinas, and developed by canon lawyers from the conduct of ecclesiastical councils. These theories and their legal support were based on ancient Greek and Roman political theory, and Roman commercial law.

Although such institutions could become secular, such as Marsilius of Padua’s idea of a secular city state ruled by such an assembly of citizens in his Defensor Pacis, the papacy was also willing to call such governmental assemblies of its citizens in the administration of its states, while the Russian Orthodox Church had fully participated in the republican governmental institutions of medieval Novgorod. Even when these parliamentary assemblies failed to become part of system of government, monarchs were still subject to constitutional checks. From the Middle Ages to the French Revolution, the parlement of Paris – not an assembly of subjects, but a committee of lawyers – had the responsibility of examining royal legislation to check whether it was constitutional. These ideas of popular sovereignty, constitutional limits on the power of the monarch and the ability of governmental assemblies to pass legislation and advise the monarch, were further developed in the 16th and 17th centuries to provide the foundations for modern theories of representative government and democracy.


  1. James A. Brundage, Medieval Canon Law, (Harlow, Longman 1995), pp. 157-8.
  2. Waley, Later Medieval Europe from St. Louis to Luther ( Harlow, Longman 1985), p. 8; Hittinger, Liberty, Wisdom and Grace: Thomism and Democratic Political Theory (Lanham, Maryland, Lexington Books 2002), p. 50.
  3. Hittinger, Liberty, Wisdom and Grace, p. 50.
  4. Waley, Later Medieval Europe, pp. 8-9.
  5. Hittinger, Liberty, Wisdom and Grace, p. 51.
  6. Henry of Langenstein, ‘Consilium Pacis’, cited in Waley, Later Medieval Europe, p. 105.
  7. James A. Brundage, Medieval Canon Law , p. 107.
  8. Brundage, Medieval Canon Law, p. 108.
  9. Brundage, Medieval Canon Law, p. 110.
  10. Waley, Later Medieval Europe, pp. 105-6.
  11. Waley, Later Medieval Europe, p. 106.
  12. Waley, Later Medieval Europe, p. 106; Henry Bettenson, Documents of the Christian Church (Oxford, OUP 1963), p. 136.
  13. Bettenson, Documents of the Christian Church, p. 136.
  14. Brundage, Medieval Canon Law, p.111.
  15. Brundage, Medieval Canon Law, p. 112.
  16. Jacob, ‘Political Thought’, in C.G. Crump and E.F. Jacob, The Legacy of the Middle Ages (Oxford, Clarendon Press 1923), p. 527.
  17. Brundage, Medieval Canon Law, p. 157.
  18. David Wootton, ‘Introduction’, in David Wootton, ed., Divine Right and Democracy: An Anthology of Political Writings in Stuart England, (Harmondsworth, Penguin Books 1986), pp. 48-9.
  19. George Holmes, Europe: Hierarchy and Revolt, 1320-1450, second edition, (Oxford, Blackwell 2000), p. 111.
  20. Holmes, Hierarch and Revolt, p. 111.
  21. Wootton, ‘Introduction’, in Wootton, ed., Divine Right and Democracy, p. 49.
  22. Wootton, ‘Introduction’, in Wootton, ed., Divine Right and Democracy, p. 48.
  23. E.F. Jacob, Political Thought, in Crump and Jacob, The Legacy of the Middle Ages, p. 521
  24. Holmes, Hierarchy and Revolt, pp. 74-5.
  25. Charles Johnson, ‘Royal Power and Administration’, in Crump and Jacob, Legacy of the Middle Ages, p. 482.
  26. Charles Johnson, ‘Royal Power and Administration’, in Crump and Jacob, Legacy of the Middle Ages, p. 483.
  27. Geoffrey Barrowclough, The Origins of Modern Germany (Oxford, Basil Blackwell 1947), p. 349.
  28. Barrowclough, Modern Germany, p. 351.

The Medieval Christian Contribution to Western Democracy: Part One

July 19, 2008

The Middle Ages aren’t a period people would normally associate with democracy. This was, after all, the period when kings and princes ruled through hereditary right and military prowess and the mass of the population were landless serfs working on their estates. Nevertheless, as I have pointed out in the two articles on Judaism, Christianity and the origins of western democracy, the Bible expressed and commanded the fundamental values at the heart of democracy – the moral commitment to denounce tyranny and to work for the common welfare of humanity, and the idea that everyone is equal before God. These ideas continued into Christianity, which took over Roman constitutional theories of popular sovereignty.

In this essay I hope to continue my examination of the way Christianity contributed to the emergence of democracy through the establishment of limits on the power of monarchs. This was achieved through the notion that sovereignty belonged to the people, and was only delegated to princes. The idea of delegated authority, elaborated by Canon lawyers, strengthened the position of the consultative assemblies that had been called by monarchs as an instrument of government since the early Middle Ages, and allowed them to develop into parliaments. Canon lawyers also stressed that monarchs were bound by the law, and that the people were also the source of law in the case of the popular customs that comprised much of medieval law. Philosophers and theologians such as Thomas Aquinas considered monarchs and authorities should interfere as little as possible in popular customary law as too much legistlation and interference in custom weakened the law generally. The result was that by the end of the Middle Ages many states in Europe had developed parliaments and governmental assemblies to advise and check the power of the monarch, as well as other constitutional limits to their power.

In this first part of the essay I shall examine the strong sense of popular rights, which existed in the Middle Ages, the existence of medieval republics and monarchical states governed through parliamentary assemblies, such as the republic of Novgorod in Russia and the Italian city states. I will also discuss the existence of the feudal assemblies kings and princes had called to advise them and assist them in government since the France of Charlemagne, and how these developed into parliaments in England and Spain, noting that the papacy approved of these governmental assemblies and called and used similar assemblies in the government of its own territories, the papal states. Although Thomas Aquinas considered that monarchy was the best form of government, nevertheless he also argued that the best form of the state was a well-mixed constitution, which included elements of monarchy, aristocracy and democracy. His view that the sovereignty on which the monarch based his power belonged to his people was developed by later philosophers and theologians to justify the right of the people to depose an unjust ruler.

Medieval View of Popular Rights and Sovereignty

The Middle Ages also possessed a strong sense of popular rights, which the king was bound to uphold, and whose violation by the king was just cause for resistance to the sovereign. The Sachsenspiegel, a medieval 14th century law code, stated clearly that if the king acted contrary to the ‘good customs’ of the people, their resistance to him to recover their rights was not a rejection of their allegiance. 1 As kings owed their sovereignty to the people, the people therefore possessed the power to depose a corrupt or tyrannical king. Manegold of Lutterbach, defending Pope Gregory VII during the Investitures Contest with the German emperor, stated that ‘since no-one can create himself Emperor or King, the people elevates a single one person over itself to the end that he may rule and govern it according to the principle of righteous government; but if in any wise he transgresses the contract of which he is chose he absolves the people from the obligation of submission, because he has first broken faith with it.’ 2 The result of this conception of popular sovereignty was that by the end of the Middle Ages, some statesmen, philosopher, theologians and lawyers had developed constitutional theories of the people as the foundation of the state that come very close to the modern conception of popular democracy. The Seneschal of Burgundy, Philippe Pot, at a meeting of the French estates-general – a meeting of the representatives of the nobility, clergy and ‘third estate’ to discuss the state of France after the death of Louis XI, declared that in the case of a king who was unable to govern, the right to rule lay in all the people, not just a few.

‘I wish to tell you, as far as my intelligence will allow me, what I have learned from great and wise men on the authority and the liberty of States. It is certain that the royal power is a dignity and not the property (haereditas) of the prince. History relates that at the first the sovereign people created Kings by its vote. It is in its own interest that each nation gave itself a master. The whole world repeats that the state is the creation of the people. If it is so, how could the people abandon its charge? How can flatterers attribute supreme power to the prince who exists only in virtue of the people? That being so, what is the power in France which has the right of governing when the king is incapable of doing so? Clearly this task reverts neither to a sole prince, nor a handful of men, but to all, that is the people, the giver of power. This task it must take up as it were its own, all the more so because it is always the victim, the sole victim of a bad government.’ 3

Republic of Novgorod Ruled by Governmental Assembly

The vast majority of European states remained feudal monarchies, ruled by kings and princes, though with governmental institutions that limited their power and represented the interests of the wider people. A very few states, however, did develop a very democratic character very much like the later constitution monarchies in which kingship was limited by representative, elected governmental institutions. 12th century Novgorod has been described as a republic. Historians have considered that its constitution ‘may be characterized as a democracy limited to a certain extent by the interests of the upper classes – de facto, if not de jure.’ 4

In Novgorod, sovereignty rested in the city, described as ‘Lord Novgorod the Great’, rather than the prince. This sovereignty was exercised through the veche, the city assembly, which met either in the square before the Prince’s Palace or in front of the cathedral of St. Sophia. These meetings were called by the tolling of the cathedral bell. 5 The male head of every free family in Novgorod had the right to vote, with the exception of slaves and the smerdy, free peasants who were under the authority of the local prince, or in the case of Novgorod, the city itself. 6 Laws could only be passed with the unanimous consent of the assembled citizens. To prevent the appearance of violent conflict between competing factions in the absence of a clear majority, the veche possessed a ruling committee of 300 members, chaired by the archbishop, called ‘the Lords’, composed of the prince’s lieutenant, senior municipal officials and the local boyar aristocracy, with the duty of preparing bills for debate in the veche. 7

The two most important officials were the mayor, termed the posadnik, and the chiliarch or tysiatsky. The posadnik was responsible for the city’s government, though he was also chief justice for legal disputes over land. The tysiatsky, however, commanded the city militia and was the chief justice for commercial law. Both posadnik and tysiatsky were elected for brief, but unspecified periods of time, though they could be re-elected, and continued to hold considerable authority even after leaving office. 8 The city was further divided into five autonomous boroughs or communes, each of whom elected their own mayor, called a starosta or elder. 9

Constitutional Limits Power of the Prince in Novogord

Although the city was ruled by a Grand Duke, the prince’s right to rule was strictly limited by city’s constitution. From 1136 onwards princes and their non-Novgorodian retainers could not own estates within the state of Novgorod. In 1196 a congress of Russian princes recognised that the people of Novgorod had the right to elect their own prince, provided that the elected prince should always be a member of the House of Riurik. Each prince on his accession to power, was required to sign a contract with the people of Novgorod in which he formally recognised the prohibition against him and his retainers owning land in Novgorod. He also recognised that the people of Novgorod had the right to elect city officials without interference from the prince, that these official could not be dismissed by him without a trial by either a court or the veche, and that the veche, not the prince, was the supreme judicial authority. 10

Condemnation of Slavery, Existence of Serfdom by Church and Recognition of Women’s Rights in Novgorod

While the Church strengthened the authority of princes through the example of the strict subordination of its members in its organisational hierarchy, it also acted to preserve some freedom by condemning complete slavery and supporting the social class of izgoi. 11 These were mostly freedmen, though they also included priest’s sons who remained illiterate, bankrupt merchants and orphaned princes, who had nowhere to go and no means of earning a living. The Church protected them from re-enslavement and gave them a livelihood by granting them church land, for which they paid rent and services and to which they were tied. They were thus serfs under the jurisdiction of the church. 12

Kievan Russia also recognised women as possessing rights. The ‘Church Statute’ of Yaroslav the Wise, compiled in the 13th century, punished with a fine the man who stole his wife’s hemp, flax, linen or other fabrics. Husbands were fined if they committed adultery, and parents were held responsible for the death of a daughter if she committed suicide after being forced to marry against her consent. 13 Women also were able to hold property and inherit property in their own right. 14

Limits on the Power of the Monarchy in Kievan Russian Polictical Philosophy

There was no comprehensive treatise on government in Kievan Russia, though some of the political ideas of that period in Russian history can be found in the sermons and correspondence of Russian clergy. All of them accepted the institution of monarchy, but every discussion of the powers of the monarch stated that the ruler was bound by the law. The monk Iakov, in his epistle to Prince Dmitry of c. 1072, stated that the ruler should retain his guiding principles, even when threatened with force, and should not permit any arbitrariness in his government.

Contemporary discussions of the nature of government and royal power did not recommend any particular legislation limiting royal power. They did not mention the democratic institutions of the republic of Novgorod, and so political theory was in many ways behind the reality. 15 However, Russian chronicles such as the Book of Annals considered that in order to rule well, a wise prince should surround himself with good councillors and pay attention to the Duma, the council of the boyar aristocracy. Similarly, the institution of the veche as the popular legal assembly was recognised. The Laurentian edition of the Book of Annals, compiled in the 14th century, states that ‘From aboriginal times, the Novgorodians, as well as the Smolensk, and the Kiev, and the Polotsk men, and the people of other lands, used to assemble for the veche for the deliberation of their affairs.’ 16 It was considered that there was a moral pact between the prince and his people. If the people were corrupt, then the prince had a duty to correct and punish them. If the prince was evil, he should be overthrown and replaced with a better ruler. 17

Republican Institutions and Government through Councils of Citizens in Italian City States

Novgorod was remarkable in the extent to which it had limited the power of the monarch and developed democratic, republican institutions, but not unique. The mid- and late thirteenth century saw Italian mercantile cities such as Florence and Perugia similar throw off the power of local feudal lords to become republics. The Italian republics had originally been communes, towns, which had acquired a degree of autonomy, governing themselves through a municipal guild. Such towns had been established across Western Europe in countries such as France, Flanders, Germany, England and Scotland during the urban revival of towns in the 11th and 12th centuries. Originally the Italian communes had been governed by a parliament of all the citizens, the arenga, and a class of administrative officials, the consuls. By the early thirteenth century, however, the consuls had been replaced by a single official, the podesta, who functioned as a kind of ‘town manager’. 18 The supreme authority in the commune, however, was the guild or popolo. This was governed at first by a captain, and then, by the late 13th century, a number of guild officials called priors. 19 These city states then passed a series of legislation excluding the feudal aristocracy from power. In Florence in 1293 the citizens established the post of Standard-bearer of Justice, or Gonfaloniere de Giustizia with the responsibility of punishing crimes by the local aristocracy. A magnate who killed a member of the guild automatically received the death penalty. His house would be destroyed and his property confiscated. If he vanished and could not be found, his next of kin was liable to be punished in his place. As aristocrats could not be members of the guilds, they were unable to hold office as priors. 20

Independent Towns Ruled by Councils in Medieval France and Flanders

Similar communes with a high degree of independence existed in north-western France and Flanders, where the ruling officials were termed echevins. These had originally been appointed by the towns’ feudal lords to dispense justice. After these towns gained their independence from their feudal overlords, the echevins formed the cities’ governing councils. Originally appointed by the lords for life, their term in office was now limited to one year, though in practice towns such as Ghent rotated the office among a strictly limited number of individuals, so that while it was in theory governed by a council of thirteen, it was in fact ruled by an oligarchy of 39 leading citizens. 21

Development of Feudal Councils as Part of Royal Government into Parliamentary Assemblies in Middle Ages

Medieval political theorists, however, generally considered monarchy to be the best form of government. As God was monarch of the universe, so secular monarchs were considered to be limited representations of God’s lordship of the cosmos. Medieval political theory stressed the goal of social unity, and considered this could only be achieved through the government of a single individual. 22 In practice, however, the power of the king was limited through consultative assemblies of his lords and vassals, such as the witangemot, or council of wise men in Anglo-Saxon England, and the feudal grand council of nobles elsewhere in Europe. Archbishop Hincmar of Rheims, in his treatise on royal government, The Government of the Palace, written in 818 for Charlemagne’s grandson, Carloman, gave a detailed description of the operation of the royal feudal assembly in France. 23 This met twice a year. In winter, a small number of experienced councillors met to consider the issues that would need to be discussed at the main meeting in the summer. It was during the plenary meeting of the main summer council, usually held in the afternoon and attended both by the great magnates and the lesser lords, that the issues and legislation proposed by the Frankish emperor were heard and occasionally discussed. It was after the assembled lords had confirmed them that the king’s proposals formally became law. 24 Individual lords attending the assembly were questioned by the king whether there were any complaints or dissatisfaction in his part of the kingdom, which the assembly needed to deal with. Thus, Frankish kings used the assembly to deal with popular unrest before it could escalate into rebellion. 25

The thirteenth century saw the appearance of such grand councils as an established governmental institution in England, Aragon and Castile. These assemblies – parliament in England, and the cortes in Spain – originally could only advise the king and had no power to block royal legislation. Nevertheless, they were de facto limitations of the royal power, and indicated the possibility of further constitutional developments. 26 In Aragon, each of the three constituent provinces had its own cortes, representing the clergy, nobility and the towns. These met every three years, regardless of the wishes of the monarch. During the 14th century, Catalonia, then Aragon and Valencia, established a standing committee, the generalitat. This was originally responsible for supervising that the grants of money made by the assembly were properly spent, but soon acquired judicial and military functions. Royal power was further limited in Aragon by the justicia, which was elected by the minor aristocracy to protect their interests from attack by royal officers. 27 The great law code compiled by Alfonso X of Castile, the Siete Partidas, stated that while only kings, emperor or the deputies could make laws, this could only be done in counsel with the good, most honoured and learned men in the kingdom. 28

Similar assemblies were called by the emperor Frederick II in Foggia for the southern kingdom of Italy in 1232, including representatives from the towns; by William of Holland in the Rhineland from 1247-56, and by Pope Innocent III in the Papal States in 1207. Indeed, similar meetings were held regular in some provinces of the papal states in the second half of the thirteenth century. 29 These early parliamentary assemblies chiefly represented only the aristocracy, knights and the new urban industrial and mercantile classes. The peasants, who constituted the vast majority of the medieval population, were generally excluded from them. Remarkably, some provincial assemblies, such as the provincial diets of Tyrol and Wurttemberg in Germany, did include the peasants. 30 This was extremely unusual, considering the strongly hierarchical nature of medieval European feudal society. Nevertheless, it illustrates how these early governmental assemblies had the potential to develop something like the character of a democratic parliament.

Concern by Papacy for Royal Justice

While the struggles between popes and emperors for political ascendancy are one of the most important and recurring features of medieval history, the papacy was nevertheless genuinely concerned to ensure that secular monarchy was the source of justice. When Charles of Anjou ascended to the throne of Sicily and Naples, he received a letter from Pope Clement IV advising him on how to rule justly. The pope advised that royal judges should be incorruptible, with a salary and sitting daily. Complaints against royal officials should be investigated rapidly, by an official, either a monk or a good-natured knight, who was specifically responsible for handling them. The king should take innocent people hostage, or make them pay for those who were genuinely guilty. During inquiries about royal rights, the burden of proof should only be placed on the subjects in reasonable circumstances. Furthermore, the king should not abuse his feudal rights to interfere in the marriage of his tenants’ daughters. He was also advised to find a solution to the problem of that year’s taxes through agreement with his barons, clergy and townspeople. 31 Thus in practical politics the papacy here was concerned to ensure that Charles of Anjou governed well as a feudal monarch through just, efficient administration and a process of consultation and agreement with his vassals.

View of Aquinas that Best Constitution included Element of Democracy

Thomas Aquinas also made a contribution to political theory, particularly in his treatises On Kingship and the Treatise on Law. Although he strongly supported monarchy as the best form of government, nevertheless in the answer to the question ‘Whether the Old Law Enjoined Fitting Precepts Concerning Rulers?’ Aquinas considered that the Mosaic Law provided for the inclusion of a democratic element in government. 32 In his discussion of the nature of the state and the best type of government, Aquinas combined Aristotelian political theory with the contemporary, medieval view of government, supporting his conclusions with reference to scripture. Historians have therefore considered that ‘in his writings is to be found the same characteristically medieval blend of classical influences with those of contemporary society: his views on politics comprise in essence an attempt to apply a Christianized version of Aristotle’s thought to the feudal monarchies of his own day.’ 33

Monarchy the Best Form of Government in Aquinas

Aquinas considered that the best institution or process was always one that most closely corresponded to a natural process. Monarchy was the best form of government, because in nature government was always by a single entity. Thus, according to Aquinas, the human body was moved only by one organ, the heart, the human soul possessed a single, ruling faculty in reason, bees had one ruler, and there was only one God in the universe. 34 Monarchy was further better than democracy or oligarchy, because government by a single person could promote unity in peace, while government by many produced dissension and conflict. He considered that experience demonstrated that the cities and provinces, which were not ruled by a single person, were therefore subject to division and political turmoil. Aquinas accepted Aristotle’s view that the majority of people were unable of attaining moral standards. Moreover, humans possessed a great variety of talents. Some were more talented than others. Aquinas considered that government should always be by the best individuals, a principle that could clearly justify monarchy, aristocracy or rule by a military elite. 35 Thus, Aquinas himself was not a supporter of democracy, and indeed considered the best form of government to be a monarchy.

Support for Democratic Ideas of Human Equality and the Direction of the law to the Common Good in Aquinas

Nevertheless, Aquinas also provided support for democracy through his philosophical views on human equality, the necessity of working towards the common good, and particularly his idea of the constitution of a well-mixed regime. Christianity, like Judaism, maintained the Biblical view of the fundamental equality of the human race before the Lord. Aquinas supported this view with the argument in his work, Being and Essence, based on Aristotelian philosophy, that there was one, universal human essence, which was abstracted from all the differences of individual humans. 36 Aquinas was also influenced by Aristotle’s Politics that the essential goal of political organisation, institutions and policies should be the common good. The common good was the standard governing everything from the imposition of taxation to the constitution of states. 37 Thus, in his Treatise on Law, in his answer to the question, ‘Whether the reason of any man is competent to make laws’, Aquinas stated

‘A law, properly speaking, regards first and foremost the order to the common good. Now to order anything to the common good, belongs either to the whole people, or to someone who is the vice-gerent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.’ 38

View of Aquinas that Rulers Govern on Behalf of their People Source of View that People Have Right to Depose Unjust Monarchs

Thomas Gilbey, in his 1966 translation of Aquinas’ writings on law and political theory, noted that the term ‘vice gerent’ was derived from the Latin phrase ‘gerere vicem’, to act on behalf of someone. The vice-gerent was thus, for Aquinas, ‘the public personage, the figure who personifies the community, and is its guardian and, in the fullest sense, its caretaker.’ 39 If the government was not directed towards the common good of the majority of citizens, but only towards the private good of the ruler, it was unjust and the ruler was clearly a tyrant. 40 Aquinas further supported his argument on this point by quoting Ezekiel 34:2 ‘Woe be to the shepherds of Israel that do feed themselves! Should not the shepherds feed the flocks’ 41 It has been noted that Aquinas in this passage does not recommend that the ruler should consult with the people before passing a law, only that he does so as the representative of the whole community. 42 Nevertheless, Roman Catholic theologians and political theorists such as Cardinal Cajetan, Cardinal Bellarmine and Francisco Suarez based their views on the limitation of the power of the monarchy on this passage. Cajetan considered that while the Pope could not be deposed, he therefore had the power to depose secular rulers. Bellarmine considered that no single individual possessed power, but it belonged to the people as a whole. Suarez went further and argued that the most natural form of government was democracy, because it required no institution, while all other forms of government were the result of a conventional institution. 43

Thus the medieval view that kings were bound by the law and that sovereignty ultimately lay in the people, rather than the monarch, resulted in the idea that unjust kings could be legitimately deposed. As a result, republics emerged during the Middle Ages, like the Italy city states and the republic of Novgorod, which were ruled by governmental assemblies. Monarchies, such as those of England, France, Germany, Spain and Italy also included parliamentary assemblies in their governmental systems. Although monarchy was considered the best system of government, nevertheless Thomas Aquinas strongly argued for human equality and provided the philosophical and theological arguments that formed the basis for the views of later philosophers and theologians that the monarch could be legitimately deposed by the sovereign people or the papacy as a check on immoral or corrupt government.

In the second part of the essay I will examine the way Aquinas, although he considered monarchy to be the best form of government, nevertheless also argued that the best form of constitution included features of aristocracy and democracy, as well as monarchy. I will also discuss the way the view of Aquinas and the Canon lawyers that the people were also the source of law in the case of the customary law which operated in medieval Europe, and that as law was innately rational, unreasonable laws had no force. I will also discuss the emergence of the Conciliarist movement, which attempted to govern the church through a system of ecumenical councils that were superior to the papacy, and the philosophical and theological link this had with the development of secular political assemblies. Medieval Canon law provided the basis for the authority of such advisory councils and governmental assemblies on behalf of the wider community through its notion of mandated authority, developed to allow ecclesiastical authorities to make decisions on behalf of the wider church. I will also discuss the theological views articulated by the English peasants in the Peasant’s Revolt that serfdom should be abolished as all humans had been created equal. Although the medieval governmental assemblies were strongly oligarchic, with membership reserved for nobles, knights and members of the urban elite, nevertheless these provided the foundation for later parliamentary democracy while the Conciliarist movement may have inspired and provided the basis for the arguments of the parliamentarians during the British Civil War/ War of the Three Kingdoms. Thus the constitutional theories developed by philosophers, theologians and lawyers during the Middle Ages formed the basis for modern, parliamentary democracy.


  1. E.F. Jacob, ‘Political Thought’ in C.G. Crump and E.F. Jacob, The Legacy of the Middle Ages, (Oxford, Clarendon 1926), p. 526.
  2. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 529.
  3. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 531.
  4. George Vernadsky, Kievan Russia (New Haven, Yale University Press 1948), p. 199.
  5. Vernadsky, Kievan Russia, p. 198.
  6. Vernadsky, Kievan Russia, p. 144, 198, 199.
  7. Vernadsky, Kievan Russia, pp. 198-9.
  8. Vernadsky, Kievan Russia, p. 199.
  9. Vernadsky, Kievan Russia, pp. 199-200.
  10. Vernadsky, Kievan Russia, pp. 197-8.
  11. Vernadsky, Kievan Russia, p. 205.
  12. Vernadsky, Kievan Russia, pp. 153-4.
  13. Vernadsky, Kievan Russia, p. 156.
  14. Vernadsky, Kievan Russia, pp. 155-6.
  15. Vernadsky, Kievan Russia, p. 288.
  16. Vernadsky, Kievan Russia, p. 289.
  17. Vernadsky, Kievan Russia, p. 289-90.
  18. Daniel Waley, Later Medieval Europe from St. Louis to Luther, Second Edition (London, Longman 1985), p. 21
  19. Waley, Later Medieval Europe, p. 22.
  20. Waley, Later Medieval Europe, p. 21.
  21. Waley, Later Medieval Europe, p. 23.
  22. Jacob, ‘Political Thought’, in Crump and Jacob, Legacy of the Middle Ages, p. 518.
  23. Janet L. Nelson, Charles the Bald (London, Longman 1992), p. 43.
  24. Nelson, Charles the Bald, p. 46.
  25. Nelson, Charles the Bald, p. 48.
  26. Waley, Later Medieval Europe, p. 10.
  27. ‘The Rise of Spain and Portugal’ in Esmond Wright, History of the World: Prehistory to the Renaissance (Feltham, Newnes Books 1985), p. 498.
  28. Waley, Later Medieval Europe, p. 7.
  29. Waley, Later Medieval Europe, p. 10.
  31. Waley, Later Medieval Europe, p. 6.
  32. John P. Hittinger, Liberty, Wisdom and Grace: Thomism and Democratic Political Theory (Lanham, Maryland, Lexington Books 2002), p. 50.
  33. Waley, Later Medieval Europe, p. 8.
  34. Waley, Later Medieval Europe, p. 9.
  35. Hittinger, Liberty, Wisdom and Grace, p. 50.
  36. Hittinger, Liberty, Wisdom and Grace, p. 44.
  37. Waley, Later Medieval Europe, p. 8.
  38. St. Thomas Aquinas, cited in Hittinger, Liberty, Wisdom and Grace, p. 42.
  39. St. Thomas Aquinas, Summa Theologiae, Law and Political Theory, Thomas Gilbey, ed. and trans., in Blackfriars vol. 28 (New York, McGraw-Hill 1966), cited in Hittinger, Liberty, Wisdom and Grace, p. 47.
  40. Waley, Later Medieval Europe, p. 8.
  41. Ezekiel 34:2, in the Bible, KJV (London, Collins), p. 799.
  42. Hittinger, Liberty, Wisdom and Grace, p. 47.
  43. Hittinger, Liberty, Wisdom and Grace, pp. 40-1.