Medieval Law and the Foundations of the State

(Elliott) #1

democratiato refer to the various types of government individually:
when he wished to refer to these political forms collectively, he employed
such terms as ‘polity’, ‘dominion’, ‘power’, and ‘rule’ (regimen). It has
been shown that it was not Aquinas himself, but Louis of Valence in the
version of St. Thomas’s commentary which he published in 1492, who
substituted the terms ‘state of the best’ (optimatum status) for aristo-
cratia, ‘state of the few’ (paucorum status) for oligarchia, and ‘popular
state’ (popularis status) for democratia, having found the new terms in
Leonardi Bruni’s early fifteenth-century translation of the Politics.^16
Nevertheless it seems to have been Aquinas who took the simple but
momentous step which would focus the understanding of Italian city
politics, and subsequently the politics of the kingdoms of the rest of
Europe, on the ‘state of the regime’ (status regiminis). He formulated
the concept of the state as ‘the set order of the governors’ at the heart
of every stable commonwealth—the general concept which was
necessary before the name could be attached to a particular form of
government in Aristotle’s scheme. In ‘the first part of the second part’ of
his Summa Theologica, which is probably contemporaneous with the
commentary on the Politics, Aquinas discusses the relationship between
the Law of the Jews in the Old Testament and the New Law of Christ:
how much of the Old Law is still valid? He concludes that the judicial
precepts binding the Jews lost their force with the coming of Christ and
‘the changing of the state of that people’ (mutato statu illius populi):


The judicial precepts which men have instituted are of permanent force, as long
as the state of regime endures [manente illo statu regiminis]. But if the city or
the active part of it comes under another regime [civitas... ad aliud regimen
deveniat], the laws must change. For the same laws are not appropriate in a
democracy, which is the power of the people, and in an oligarchy, which is the
power of the rich; as the Philosopher makes clear in his Politics.^17


Aquinas’s ideas were carried to the Italian cities by his Dominican
pupils, Remigio di Girolami and Ptolemy of Lucca, and his scholastic
abstraction of Aristotle’s different constitutions turned out to be a
perfect instrument for understanding the volatile chemistry of city
politics: the transformation of one regime into another under the strains
of the party warfare of Guelf and Ghibelline and of economic and
demographic growth.^18 Already in the early years of the fourteenth


4 Introduction. State: Word and Concept


(^16) Sancti Thomae de Aquino Opera Omnia, cura et studio Fratrum Praedicatorum, xlviii.
Sententia Libri Politicorum(Rome, 1971), pp. A8, A17–20, A144–48; R. M. Spiazzi, in his
edition S. Thomae Aquinatis in Libros Politicorum Aristotelis Expositio(Turin and Rome,
1951), 138–9, mistakenly attributed these uses of statusto Aquinas himself.
(^17) Aquinas, Summa Theologica, 5 vols. (Madrid, 1961–5), ii. 720–1 (Prima Secundae,
quaestio 104, article 3, conc. and ad.2).
(^18) Skinner, Foundations of Modern Political Thought, i. 52, 54–5, 59, 82, 144–5; Georges
de Lagarde, La Naissance de l’esprit laïque, 2nd edn. (Louvain and Paris, 1958), ii. 110;

Free download pdf