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William of Occam and the Higher Law*

Published online by Cambridge University Press:  02 September 2013

Max A. Shepard
Max A. Shepard
Affiliation:
Harvard University
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Extract

William of Occam has fittingly been called the “most subtle doctor of the Middle Ages.” Despite this fact, or perhaps because of it, the vast political writings of this famous fourteenth-century scholastic have been surprisingly neglected by modern students, particularly in England and the United States. It is commonly agreed that among general philosophers of the Middle Ages this “second founder of nominalism” is surpassed by St. Thomas Aquinas alone. Surely, therefore, the presumption is reasonable that the encyclopedic mass of Occam's political writings conceals many “diamonds in the rough,” only awaiting discovery. The present writer hopes that he may throw some light on certain important problems discussed by Occam, especially that most significant one of a “higher” or fundamental law.

An impression seems prevalent in many quarters that Occam obtained most of his political ideas from his famous contemporary, Marsiglio of Padua, who has established himself among modern students as the really great political genius of his times. Without detracting from Marsiglio's well-deserved fame, we are quite unable to accept this view. On the contrary, Occam, as might be expected of such a great general philosopher, can stand upon his own feet, and his political theory in many respects exhibits characteristics entirely independent of any Marsiglian influence.

Type
Research Article
Information
American Political Science Review , Volume 26 , Issue 6 , December 1932 , pp. 1005 - 1023
Copyright
Copyright © American Political Science Association 1932

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References

1 They cover about 900 folio pages in Goldast's, Monarchiae, Vol. IIGoogle Scholar, and are exceeded by those of no other medieval political writer, unless it be St. Thomas Aquinas. Other political works published since Goldast considerably increase this amount. See Scholz, , Unbekannte Kirchenpolitische Streitschriften (Rome, 1911), Vol. I, pp. 141–189Google Scholar; Vol. II, pp. 392-480.

2 Riezler, Sigmund, Die Literarischen Widersacher der Päpste, p. 274Google Scholar.

3 See Dunning, W. A., Political Theories, Ancient and Medieval, p. 245Google Scholar; Janet, Paul, Histoire de la Science Politique, Vol. I, pp. 485–595Google Scholar; and Poole, R. L., Illustrations of the History of Medieval Learning and Thought, p. 244Google Scholar.

4 Cf. Octo Quaestiones, Book VIII, ch. 5, printed in Goldast's, MelchiorMonarchiae (Frankfurt, 1668), Vol. II, p. 393Google Scholar. Hereafter, Goldast, Vol. II, will be cited simply by pages.

5 See Dickinson, John, “The Law Behind Law,” 29 Columbia Law Review, 113–146 and 285–319CrossRefGoogle Scholar. Dickinson does not believe it advisable or correct to designate “higher law” as real law today, although he admits that it was law in the Middle Ages. See his Administrative Justice and the Supremaoy of Law in the United States, p. 84. The present writer agrees completely as far as the Middle Ages are concerned.

6 Many readers will perhaps be surprised to discover that Occam, though called upon to defend the Emperor with the “pen, instead of the sword,” no more envisaged an absolute and unlimited imperial power than a papal one.

7 Opus Nonaginta Dierum, ch. 88, p. 1146.

8 Dialogus, Part III, Tractatus II, Liber II, ch. 4, p. 904.

9 Dial., Part I, Liber VI, ch. 47.

10 Ibid.

11 Ibid., I, VI, 47, p. 51.

12 Ibid., I, VI, 100, p. 630.

13 Ibid., III, I, I, 16, p. 786.

14 Ibid.

15 Ibid., III, I, II, 20, p. 808.

16 Ibid., I, VI, 62, p. 568.

17 Political Theories of the Middle Ages (Maitland trans.), pp. 172-173, note 256.

18 Indeed, the general similarity of their two theories of natural law is quite noticeable and remarkable. Occam borrowed a great deal from Aquinas and must thank the master for many of his underlying ideas about and classifications of law. Aquinas furnished the general lines within which Occam, and indeed all his successors, moved. How far Occam was from a mere plagiarist, however, will become evident to anyone who makes even the most superficial examination of their writings. In countless places Occam refines and subtly develops ideas present, if at all, only in the most rudimentary form in the master. His ever-awe-inspiring ability to draw acute distinctions well merits for him the title of subtillismus doctor, and his synthetic grasp is second only to Aquinas'. Perhaps Occam's greater stress on the jus gentium, as a legal category which did allow for particularistic variations from ideal norms, is some evidence of his nominalistic bias. But the point cannot be pushed very far. Occam also emphasized the ideal and immutable elements of natural law, while, on the other hand, Aquinas was too great a thinker not to realize the importance of jus gentium as a means of adapting ideal norms to practical circumstances. The similarity of the two theories, their oneness on many critical points, deserve, in our opinion, much greater stress than their differences. This is but another and striking testimonial to the widespread, deeply rooted, and unwavering medieval belief in and consciousness of a higher law above all human persons and authorities, a veritable “law behind law.” Here were two philosophers standing at the opposite poles of realism and nominalism in their general philosophies and their Weltanschauungen, yet agreed in their fundamental presuppositions concerning natural and divine law. It would appear that Occam, despite his radical nominalism, could not divorce himself from the ingrained legal thinking of centuries, as summed up in the Summa Theologica of Aquinas. Without in any way disparaging the former's tremendous contributions, immense ability, and marvelous keenness, we cannot help feeling that Aquinas was the more consistent and that his realism (or in modern terminology, idealism) is a truer philosophical expression of the legal ideas which both men held in common than Occam's nominalism. This only makes the extreme importance, fixity, and intensity of medieval higher-law notions the more evident.

19 Dial., I, VI, 47, p. 551.

20 Ibid., III, II, II, 4, p. 904.

21 Ibid., I, VI, 100, p. 629.

22 Ibid., I, VI, 100, p. 630.

23 For the Emperor, cf. Dial., III, II, II, 26, p. 922-3; and for the Pope, Ibid., III, II, I, 23, pp. 891-2, and Octo Quaestiones I, ch. 2, p. 315.

24 Dial., III, II, I, 10, p. 878.

25 Summa Theologica, Part II, Vol. I, Qu. 94, Arts. 5-6.

26 Dial., III, II, III, 6, p. 932.

27 Ibid., III, II, I, 10, p. 878; cf. above note 9.

28 Cf. Dorner, , “Das Verhältnis von Kirche und Staat nach Occam,“ Theologische Studien, 1885 (1-2)Google Scholar, the best treatment of Occam's political theory of whiah we are cognizant.

29 Dial., III, II, II, 16, p. 915.

30 Ibid., III, II, III, 6, p. 933.

31 Ibid. Occam's great debt to Aquinas will be obvious to anyone who reads the Summa Theologica, II, I, Qu. 94, art. 5.

32 Dial., III, II, II, 28, p. 924.

33 Ibid. This is a theoretical statement of the famous medieval principle of “quod omnes tangit ab omnibus approbetur.” See also Ibid., III, II, III, 12, p. 942. Note that the “consent of all mortals” is not a determinate political authority.

34 Jus gentium is never fully to be abrogated. Ibid., III, II, III, 12, p. 943.

35 Opus Nonaginta Hierum, ch. 92, p. 1150.

36 Here meaning the ideal state of things.

37 Ibid.

38 Cf. the famous couplet: “Ah! but a man 's reach should exceed his grasp. Or what's a heaven for?”

39 Theory of Justice, passim

40 See Ms Partitiones Oratoriae, cap. 37, sec. 130-1.

41 De Republica, I, 25Google Scholar.

42 See Maine, , Ancient Law, p. 46Google Scholar, and cf. Carlyle, , Medieval Political Theory, Vol. IGoogle Scholar, Part II, ch. 3, and passages cited from Roman jurists.

43 Cariyle, op. cit., Part I, ch. 2.

44 Whether St. Augustine regarded justice as essential to the state is a much mooted point. We can only note the controversy here.

45 See Carlyle, op. cit., Vol. II, Part II, ch. 4.

46 Iaid., citing the Summa Decretum, Preface.

47 Summa Theologica, II, I, Qu. 95, art. 4.

48 Opus N. D., 92, p. 1150.

49 Dial., III, II, III, 12, pp. 942-3.

50 Ibid., III, II, III, 12, p. 942.

51 Ibid., III, II, II, 28, p. 924.

52 Partitioned Oratoriae, 137, sec. 130-1.

53 Gratian, Decretum, VI, sec. 1.

54 Summa Theologica, II, I, Qu. 95 and 97.

55 Cf. Sigmund Brie, Die Lehre von Gewohnheitsrecht, passim. This statement, of course, leaves out of account higher natural and divine law which might come in to reenforce the prior customary law.

56 For Bracton, see McIlwain, C. H., Magna Carta and Common Law, p. 35Google Scholar. citing Folio 1B; and for Beaumonoir, see sec. 1514 (Salmon ed., pp. 264-5).

57 The only hint of such a linkage is Bracton's famous statement: “Non sub homine sed sub Deo et lege.”

58 Dial, III, II, III, 12 p. 942; III, II, III, 6, p. 934; III, II, I, 29, p. 902.

59 Ibid., III, II, I, 8, p. 876; ibid., 26, 899.

60 Ibid., III, II, II, 28, p. 924.

61 Ibid., III, II, I, 27, p. 900.

62 Ibid.

63 Cf. A. L. Lowell's “consensus” as necessary to create a real public opinion. Public Opinion and Popular Government, passim.

64 Dial, III, II, II, 27-8.

65 Ibid., III, II, 1, 18, p. 887.

66 Ibid., III, II, II, 28, p. 924.

67 Ibid., III, I, II, 6, p. 794.

68 That is, if we may interpret, he is not bound by his own laws. Cf. note 32 above.

69 Dial., III, I, II, 6, p. 795.

70 Ibid., III, II, I, 10, p. 878, and III, II, II, 5 and 7, pp. 905 and 908.

71 Octo Quaes., V, 3, p. 382Google Scholar, and Dial, III, II, I, 29, p. 902.

72 Ibid., ch. 31.

73 Ibid., III, I, I, 17, p. 786; III, I, II, 27, p. 816; III, II, I, 19; III, II, II, 1; Octo Quaes., II, ch. 1.

74 Oeto Quaes., I, 7, p. 322; and I, 8, p. 324.

75 Dial., III, I, I, 16, p. 786.

76 Ibid., III, II, III, 4, p. 929.

77 Ibid., III, II, I, 23, p. 892; III, II, II, 27, p. 923; III, II, III, 7, p. 935; III, II, I, 16, p. 786; Odo Quaes., I, 7, p. 322Google Scholar; De imperatorum et pontificum potestate (Brampton ed.), pp. 58–9Google Scholar.

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