March 2, 2010
The modern dichotomy between law and morality, like so much else in the realm of political ethics, can be seen proleptically, remarkably clear and well-developed, in Marsilius of Padua’s Defensor Pacis. He begins, like his good scholastic predecessors, by laying out the various senses of the word law. The two relevant ones for our purposes are the third, moral law, and the fourth, civil law. Let’s take a closer look.
“In a third sense ‘law‘ means the standard containing admonitions for voluntary human acts according as these are ordered toward glory or punishment in the future world....In its foruth and most familiar sense, this term ‘law‘ means the science or doctrine or universal judgment of matters of civil justice and benefit, and their opposites.”
So far, not bad, though we may be a bit suspicious about the way he pegs the word “voluntary” on the third, and seems to make it chiefly relevant for the future life.
He goes on, however, to tighten up his definition of the fourth category, distinguishing law in which “there is given a command coercive through punishment or reward to be distributed in the present world, or according as it is handed down by way of such a command; and considered in this way it most properly is called, and is, a law.” Here, he has made the crucial decision to designate civil law enforced by coercion as the paradigmatic, proper defintion of law. “Hence not all true cognitions of civil justice and benefit are laws unless a coercive command has been given concerning their observance.”
But things don’t get really interesting until he returns to distinguish more carefully the nature of ecclesiastical law and civil law. Before looking at this, however, we should backtrack about twenty years, to look at one of Marsilius’s chief anti-papalist predecessors, John of Paris. John of Paris too is eager to extricate the kings from papal control, and to draw firmly the boundaries between church and state jurisdiction, but he is much more conservative in how he does so.
According to John of Paris, the Church has been granted six powers: 1) the power of sacramental consecration; 2) the power of binding and loosing sins (“power in the spiritual forum,” 3) the power of preaching, 4) judicial power, “to coerce in the external forum,” 5) the power of distributing ministers in their various jurisdictions, 6) the power to receive sufficient sustenance to maintain a suitable standard of living.
“The nub of the difficulty,” he clearly perceives, “lies in the fourth power.” Now, John is insistent that “its relevance is purely spiritual, for it can impose no penalty in the external forum save only a spiritual one.” What does this mean? “It is for the ecclesiastical judge to lead men back to God, preventing them from sinning and correcting them; this function is exercised in the way God had laid down, which is that of excluding sinners from the sacraments and from the community of the faithful and the other penalties appropriate to ecclesiastical coercion.”
Why is this so important? Because John recognizes that the difference between church and state is not that the Church’s commands have only voluntary force, while the state’s have coercive force. Although he wants to be clear that the Church is not licensed to use the same tools of coercion as the state, he nevertheless recognizes that church discipline is a judicial, political action, which has a kind of coercive force. There is a middle category between voluntary morality that is enforced by God alone and civil law that is coercively enforced by the State. Not so for Marsilius.
Marsilius doesn’t leave any ambiguity in stating his position: “Neither the Roman bishop, called pope, nor any other bishop or priest, or deacon, has or ought to have any rulership or coercive judgment or jurisdiction over any priest or non-priest, ruler, community, group, or individual of whatever condition.” He seeks to prove this by alleging the various passages in which Christ renounces political power, and teaches his disciples to do likewise. John of Paris, of course, would have granted all these passages, but would have maintained that there is a separate kind of rulership and coercion proper to the spiritual authority, that is not renounced here. According to Marsilius, priests do have teaching authority (John of P’s 3rd power), but this is pretty much it. The priest
“is the teacher in this world of divine law and of its commands concerning what must be done or shunned in order to attain eternal life and to avoid punishment. However, he has no coercive power in this world to compel anyone to observe these commands. For it would be useless for him to coerce anyone to observe them, since the person who observed them under coercion would be helped not at all toward eternal salvation....Hence this judge is properly likened to the physician, who is given the authority to teach, command, and predict or judge about the things which it is useful to do or omit in order to attain bodily health and avoid illness or death.”
(Sounds just like a modern liberal!)
The priest’s job is to offer moral doctrine as advice for believers to follow, but not to offer any kind of coercion. Let me keep quoting Marsilius, since he states his position so unambiguously:
“The evangelic law can stand in a twofold relation to men....In one way, it can be related to them in and for the status of the present life; and in this way it has in its various parts the nature more of a doctrine, theoretic or practical or both, than of a law taken in its last and proper sense...as a coercive standard, that is, a standard in accordance with which its transgressor is punished by the coercive force which is given to the man who must judge in accordance with it. But now the evangelic doctrine, or the maker of that law, does not command that anyone be compelled in this world to observe the things which it commands men to do or omit in this world. Consequently, in its relation to man’s status in and for this world, it ought to be called a doctrine, not a law.”
The second relation, Marsilius goes on, is that of the future life, over which the evangelic law does have a coercive power; but in this case, the coercive function is exercised by Christ alone.
In this present life, the law which the Church propounds has a mere admonitory function. But surely, Marsilius believes that common doctrinal and moral standards must be enforced--that heretics and great sinners may need to be excommunicated, and binding standards may need to be laid down? Why yes, of course he does, in which case the church will need to summon the civil magistrate to its aid to carry out these coercive duties for it, or else receive authorization from the magistrate, since all power of coercion belongs to the civil authority. Hence, inasmuch as bishops are teachers of the gospel, they are agents of the Church, but inasmuch as they should wish to have administrative authority over the churches in their diocese, or to carry out church discipline on notorious sinners, or to make authoritative doctrinal pronouncements, they must operate solely as duly authorized agents of the State.
It was this model, of course, that many of the Protestant reformers, particularly in England, seized upon, such that the Church of England was really conceived of as kind of two-natured entity, on the one hand exercising purely spiritual teaching authority directly from Christ, and on the other, as a department of the English state, responsible for the public administration of religious affairs and answerable to Parliament for it.
I will not go so far as to say that this is the inevitable result of driving a sharp wedge between law and morality, and restricting the Church to the latter, but the conception is clearly a dangerous one. We need to recover a robust idea of church authority as something lying somewhere between the pure coercion of “law” and the pure voluntarism of “morality.” We need to somehow pull back together these threads that Marsilius has so thoroughly separated--future life vs. present life, spiritual vs. political, sacred vs. civil, teaching vs. legislation. Above all, we need to get a clear idea of what we mean by the term “coercion,” and what we think the alternatives to it are.