Greece, Rome, and the Bill of Rights (9 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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community could be seen as a place for the harmonious integration of individual lives.

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That the Christian community can be based on natural law, human reason, and political institutions as well as on God's will is a great breakthrough in human thought. The state is the condition of our existence, Aquinas would say, and in some cases disobedience to it may be a duty. It is important to emphasize, however, that Aquinas's doctrine is not individualistic. While resistance to the state might sometimes be necessary, there is in his thought no call to revolution against the state.
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Thus, while Aquinas dignified the human capacity for reason and effected a new harmony between human and Christian values through his interpretation of natural law, his doctrine by no means constitutes a thoroughgoing rationalistic system. "The proud spirit of modern rationalism is lacking," observes d'Entrèves. "There is no assertion of man's self-sufficiency and inherent perfection. There is no vindication of abstract 'rights', nor of the autonomy of the individual as the ultimate source of all laws and of all standards."
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Aquinas accomplished for medieval theology and philosophy what Roman jurisprudence accomplished for medieval law: an accommodation to Christian principles that retained a faith in human reason as a basis for moral activity and civic justice. In both cases natural law provided the theory that justified the accommodation.
Roman Law in the Middle Ages
Governments in theory operate either from the top down or from the bottom up. The decisive issue in these contrasting theories, which Walter Ullmann calls the ascending and descending themes of government and law,
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is the location of the power to create laws. In the ascending theory, the people are the source of law. Whatever governmental arrangements they make, they retain the original power and must give their consent to the governance. In this theme the people also retain a right of resistance. This state of affairs is at least partly evident

 

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in classical Athens, republican Rome, and the Germanic communities chronicled by Tacitus.
In the descending theme of government, the source of laws resides not in the people but in some otherworldly being or divinity considered the source of all power both public and private. Earthly rulers have a direct relationship with that source and preside as its surrogate. Officeholders are appointed by the rulers and serve at their pleasure. There is no consent, no representation, no accountability, no right of resistance. Implicit in the descending theme is a hierarchical arrangement in which officers have power in direct proportion to their proximity to, or distance from, the highest ruler.
The shift in Rome from republic to empire was a shift from an ascendingalthough narrowly oligarchicalto a descending theme of government. Now the emperor as
princeps
was principal ruler and sole authority. Further, in the wake of his adopted father, Julius Caesar's being declared a god, Augustus expanded from the Hellenistic East the notion of the divinized ruler, a novel concept profoundly incompatible with republican Roman values. It would prove, however, a concept easily transferable to the pope as God's appointed ruler and to other religious and political claims of the medieval Church.
The ascending and descending concepts of government determine two different ways by which a person relates to the state: as subject or as citizen. For most of the medieval period the descending concept held sway, and the view of persons as subjects was predominant. Only during the later Middle Ages did the subject begin to be replaced by the citizen.

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The descending concept also determines that society will be seen as an all-embracing corporation. The faithful Christian, once incorporated into the Church, was from that point forward thought to conduct life not as a "natural" human self with autonomous social functions, but as a "new self " formed by Christ and the Church. This meant that as members of the religious corporation, individuals were no longer agents but subjects in public affairs. In their social and political life they were now subject to the

 

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laws that were given them, not creators of laws they had made.

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The organic theory of societyarticulated by Aristotle, made concrete in the system of Roman law, and appropriated at the beginning of the Christian era by the apostle Paulprovided a strong foundation for a Church Universal. What it did not permit was a theory of the autonomous rights of individuals.
When the empire became Christian in the age of Constantine in the fourth century, Roman ideas and practices permeated the new arrangement from the beginning: Hellenistic philosophy,
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the idea of the divine ruler, governance from above instead of from below, and a strong belief in the body politic as determinative of one's status as a person.
Ullmann observes that the fusion of Roman law with Christianity, together with monotheism and the legalism permeating the Bible, paved the way for the acceptance of a monarchic political order. The late Roman emperors practiced a highly bureaucratized form of monarchy that made Constantine's conversion easy to accommodate within the prevailing political culture. All that was required to incorporate the Church into the Roman body politic was a simple decree.
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Constantine's decree granting the Church a legal corporate personality brought it into accord also with Roman public laws governing religious practices. For example, the law that regulated the priests of the sacred cults, the
ius in sacris
, also formed the constitutional basis of the emperor as the
pontifex maximus
.
Roman law provided the foundation for the new regime, however, in more than strictly religious matters. From the early period Christian organizations were imbued with Roman institutional practices, of which none was more important than the idea of law itself, the most Roman idea of all. The Hebrew Bible was filled with laws, but even independent of that, pagan Roman law permeated the growing body of Christian doctrine.
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Roman law entered effortlessly into Christian doctrine most of all because of the apostle Paul, whose letters

 

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created in Christian scripture a climate friendly to Roman law. Paul came to Christianity as a Roman citizen deeply imbued with the corporational nature of Roman law with its hierarchical notions of civic organization. Those notions deeply influence his teaching.
Whereas Romans in the classical period had been members of the Roman state or
corpus
, now baptism brought individuals into the body of Christ, the
corpus Christi
. This doctrine is explicit throughout the Pauline letters. In 1 Cor. 12.1213, for example, Paul writes: "For Christ is like a single body with its many limbs and organs, which, many as they are, together make up one body."

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At 1 Cor. 12.27 he returns to the topic: "Now you are Christ's body, and each of you a limb or organ of it." In Eph. 1.23 he writes: "He put everything in subjection beneath his feet, and appointed him as supreme head to the church, which is his body and as such holds within it the fullness of him who himself receives the entire fullness of God." Another reference to one body occurs at Rom. 12.5: "For just as in a single human body there are many limbs and organs, all with different functions, so all of us, united with Christ, form one body, serving individually as limbs and organs to one another.''

The message is clear: If persons are parts of a body, they cannot function alone. They are not autonomous individuals.
The incorporation of persons into the Church had fundamental political as well as religious significance. It meant that a human being was no longer defined as a living creature who is politically activeAristotle's "political animal,"
politikon zoon
but is rather a new creature, a
nova creatura
. After addressing an issue in the church in Galatia about whether Christians should continue Jewish rituals, Paul exclaims: "Circumcision is nothing, noncircumcision is nothing; the only thing that counts is new creation" (Gal. 6.15). In a letter to the Corinthians he adds: "When anyone is united to Christ, there is a new world; the old order has gone, and a new order has already begun" (2 Cor. 5.17).
Not only are the "new creatures" removed from their

 

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former state of nature, but now they are also members of a corporation. As such, they are instructed to obey all superiors whether secular or ecclesiastical. Paul is adamant about this: "Every person must submit to the supreme authorities. There is no authority but by act of God, and existing authorities are instituted by him; consequently anyone who rebels against authority is resisting a divine institution" (Rom. 13.12). For Paul, the authorities are "God's agents" who are ''working for your good" (Rom. 13.4).
The same admonitions thread through the non-Pauline epistles of the New Testament. 1 Pet. 2.1314, for example, admonishes obedience to superiors: "Submit yourselves to every human institution for the sake of the Lord, whether to the sovereign as supreme, or to the governor as his deputy." Slaves likewise are instructed to submit unquestioningly to their masters: "Servants, accept the authority of your masters with all due submission, not only when they are kind and considerate, but even when they are perverse" (1 Pet. 2.18). The masters are also to be the objects of prayer: "First of all, then, I urge that petitions, prayers, intercessions, and thanksgivings be offered for all men; for sovereigns and all in high office, that we may lead a tranquil and quiet life in full observance of religion and high standards of morality" (1 Tim. 2.12).
Earthly rulers receive their powers as a divine concession. Only God has power, and that power is supreme. God may confer power on earthly rulers, but subjects have no rights in the public realm other than those royally conceded. Furthermore, if the rulers do not fulfill their obligations, there is no power on earth that can make them do the right thing. They answer only upward.

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It was this Pauline doctrine with its emphasis on law, order, and hierarchy, rather than the more affiliative message of the Gospels, that was passed on to medieval society. John Chrysostom, explaining Paul's doctrine in the early fifth century, emphasized this hierarchical nexus between human law and divine law: "It is the divine wisdom and not mere fortuity which has ordained that there should be rulership, that some should order and

 

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others should obey."

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In short, one's status is determined by membership in the group, and one's political and religious duty is to obey one's superiors.

Paul, the Roman citizen, had learned his Roman law well.
Tertullian (150230) was one of the first Christians to cast religious ideas into legal form. Also a Roman jurist, he describes the relationship between God and human beings in terms of legal rights and duties, setting up a pattern that could fit easily into Roman jurisprudence. He, too, stresses the idea of the
corpus
, establishing a precedent whereby Paul's theology could eventually be brought to the service of government ideology.
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At first there was a certain pessimism about the sinful nature of human creatures and human institutions, resulting in a notion that Christians must live as aliens on this earth while waiting to get to the divine city hereafter. This is especially apparent in
The City of God
, in which Augustine praises the ancient Romans for their greatness but concludes that their world was only "smoke that weighs nothing" when compared with the Heavenly City: "Our City is as different from theirs as heaven from earth, as everlasting life from passing pleasure, as solid glory from empty praise, as the company of angels from the companionship of mortals."
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This early pessimism lasted until at least the end of the thirteenth century, impeding the development of an adequate theory of the dignity of temporal power.
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Eventually, however, the incorporation of Stoic natural law and Roman positive law into the Church provided triumphalist Christianity with a systematic claim to the social and political institutions it now controlled. In time Christianity ceased to be hostile to the world, becoming comfortably at home in a thoroughgoing Romano-Christian civilization.
The new order was informed by two Latin texts above all others. The first was Jerome's translation of the Bible, known as the Vulgate, which was the primary source of political as well as religious ideas in the Middle Ages. "The Latin Bible," says Walter Ullmann, "was suffused

 

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