The Emergence of New Theories of Secular Government and Secular Law

It is the thesis of this chapter that modern Western political science, including modern Western theories of the state and of law, are rooted in the struggle between the opposing forces of the Papal Revolution.

Between ancient times and the fifteenth century, according to the conventional view, political thought was dominated by Stoic and patristic theory, as modified by medieval theology; and both Stoicpatristic political theory and medieval theology are thought to be too much concerned with Christian doctrine to qualify as "modern." To be sure, in the late thirteenth century, especially with the first Latin translation of Aristotle Politics ( 1260), there were some foreshadowings (it is said) of modern political science, although political thought remained basically theological and "scholastic." Only in the next century were there a few writers who are counted as important precursors of modern ideas and methods of analyzing politics. In particular, Marsilius of Padua (about 1275-1342) stressed the principle of popular consent as the basis of all legitimate government, whether secular or ecclesiastical, and from that drew the conclusion that the secular ruler could be supreme over the church (the papacy being merely an executive ecclesiastical office established by the community). The first really modern political thinker, however, is usually said to have been Niccolo Machiavelli ( 1469-1527), who is often given the credit not only for inventing the

-275- word "state" to refer to the secular polity but also for founding the modern science of politics based on empirical observation and rational analysis of political institutions.

It is the conventional view that no systematic theory, or science, of the state could have been developed before the late fifteenth or sixteenth century, because prior to that time there existed no fully developed state, in the modern sense, although some individual attributes of statehood may have appeared in the late thirteenth and fourteenth centuries. It is further argued that the very concept of the state, in the modern sense, is alien to the "Middle Ages" since it is contrary to the existence of papal supremacy or claims of supremacy over the whole of Christendom, contrary to the feudal system of decentralized political power, and contrary to the Christian idea that the king should be under God and the natural law.

It has been shown here, however, that the first state in the West was that which was established in the church by the papacy in the late eleventh and the twelfth centuries. This, of course, will not satisfy the objection that -- for some reason not fully articulated -- the discussion should be limited to secular states. But even if this limitation is accepted, it is not difficult to find examples of modern European secular states that were first formed at the height of papal power, at the height of the feudal regime, and at the height of belief in the supremacy of divine and natural law. The Norman Kingdom of Sicily under the rule of Roger II ( 1112-1154), England under Henry II ( 1154-1189), France under Philip Augustus ( 1180-1223), Flanders under Count Philip ( 1169-1191), and Swabia and Bavaria in the time of Frederick Barbarossa ( 1152-1190), would qualify, as would many independent city-states which had elaborate systems of secular law and government as early as the middle of the twelfth century -- cities such as Genoa, Pisa, Freiburg, Cologne, Ghent, Bruges, and dozens of others. Each of these was a state in the sense of a unified, independent, territorial polity under the authority of a sovereign ruler empowered to raise armies and fight wars as well as to make and enforce laws. Furthermore, during the twelfth and thirteenth centuries theories of secular government and secular law were developed by political and legal thinkers to explain and justify the existence of those states.