Religion, Law and the Growth of Constitutional Thought, by Brian Tierney

By Brian Tierney

To appreciate the expansion of Western constitutional notion, we have to give some thought to either ecclesiology and political thought, rules concerning the Church in addition to rules concerning the country. during this ebook Professor Tierney lines the interaction among ecclesiastical and secular theories of presidency from the 12th century to the 17th. He indicates how principles revived from the traditional previous - Roman legislations, Aristotelian political philosophy, teachings of Church fathers - interacted with the realities of medieval society to supply distinctively new doctrines of constitutional executive in Church and country. The learn strikes from the Roman and canon legal professionals of the 12th century to varied thirteenth-century theories of consent; later sections ponder fifteenth-century conciliarism and points of seventeenth-century constitutional suggestion. clean methods are advised to the paintings of numerous figures of principal value within the background of Western political thought. one of the authors thought of are Thomas Aquinas, Marsilius of Padua, Jean Gerson, Nicholas of Cues and Althusius, in addition to many lesser-known authors who contributed considerably to the expansion of the Western constitutional culture.

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But what if he did? In exploring this question the canonists anticipated almost every twist and turn of later resistance theory. The most radical view held that, in such a dire emergency, the cardinals or bishops in council held an authority superior to that of the erring pope and so could judge him. Thus Alanus wrote, 'It is true that a pope can be judged against his will only for heresy . . '17 But this view was hard to reconcile with the generally accepted doctrine of papal supremacy. Other canonists, starting from the view that the pope-and-council together were greater than the pope alone, argued that, if a general council had condemned a heresy and excommunicated in advance anyone who fell into it, then a pope who did so fall would automatically incur the sentence already pronounced beforehand.

And sometimes, as we shall see with Hervaeus Natalis, they wrote oblijyare and asked how men could come to be obliged. They were addressing the question that has been with us ever since, the question of political obligation. When all this is understood we are still left with an unresolved problem. Why did the first association of individuals into political groups seem so important? Or, to put it differently: How did the tradition begin of addressing the real problem of obligation through the pseudoproblem of origins?

Granted that the universitas became a model for the state (and the universal church), the constitutional theory that emerges depends greatly on the kind of universitas that is taken as a model. 38 In the Roman law model of a corporation all power resided in the community and was delegated to an official who acted on behalf of the community. Similarly, in Roman constitutional law, the emperor derived his power from a grant by the people. This doctrine could have an absolutist form if the powers delegated were conceived of as permanently alienated, and indeed this was the most common teaching about imperial power among medieval Roman lawyers.

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