Roman Law and Human Liberty: Marsilius of Padua on Property Rights

By Lee, Alexander | Journal of the History of Ideas, January 1, 2009 | Go to article overview

Roman Law and Human Liberty: Marsilius of Padua on Property Rights


Lee, Alexander, Journal of the History of Ideas


At the heart of his attack on ecclesiastical involvement in temporal affairs in the Defensor pacts, Marsilius of Padua turned to consider the status appropriate to those in the pastoral office.1 Quoting Matthew 19:21 and Luke 14:33, he stated that any person who aspired to a life in imitation of Christ's example should willingly forsake all that he owned. "See therefore," Marsilius continued,

that the status of poverty and the contempt for the world becomes every perfect man, especially the disciple of Christ and his successor in the pastoral office; indeed, it is almost necessary for him who ought to recommend the contempt for the world to others, if he wishes to make progress with his teaching or his preaching.2

In the chapters that follow, Marsilius attempted to demonstrate that the life of absolute poverty was not only necessary for those in the pastoral office, but also permissible within the law. Once the theological justification for the status of "meritorious poverty" had been established, the argument swiftly moves, via a series of technical definitions, to a consideration of the specifically legal question of whether corporeal objects can be used or consumed without the acquisition of ownership (dominium).

The relationship between Marsilius's interest in property rights and his broader purpose in the Defensor pacts has aroused particular interest in recent years, and it has been well noted that these chapters should be located within the context of the Franciscan poverty debate and its absorption into the late medieval controversy between sacerdotum and regnum. Examining the interplay between the concepts of proprietas and potestas in the Defensor pacts, Conal Condren has convincingly argued that Marsilius developed the position of the Spiritual Franciscans specifically "in order to find terms on which the papacy would argue at a disadvantage."3 In the same vein, Kerry Spiers has illustrated that Marsilius's "ecclesiastical poverty theory" can be understood as a reaction to John XXIFs manipulation of the idea of the universal dominium of Christ and corresponding attacks on Franciscan poverty.4 Such fruitful lines of research have brought to light numerous contemporary parallels and contrasts. In her important article on ratio and dominium in medieval discussions of property, for example, Janet Coleman has explored the intriguing comparisons which can be drawn between Marsilius's use of property rights and John of Paris's engagement with the question of poverty in his De potestate regia et papali, while also alluding to the works of such figures as Aegidius Romanus, Augustinus Triumphus, and James of Viterbo.5

Although Marsilius's application of the poverty question has attracted much attention, however, scholars have been comparatively loath to examine his contribution to the development of the specifically legal issue of property rights.6 For many years, this reluctance was the result of the low opinion of Marsilius's legal knowledge common amongst historians. Supported by research which cast doubt on his ever having received a formal education in law, scholars were long inclined to dismiss or to ignore the detailed arguments of these chapters, and expended little time in enquiring after Marsilius's legal originality or lack thereof.7 Previté-Orton, for example, believed that Marsilius's knowledge of civil law was fragmentary at best8 and spoke most disparagingly of this portion of Dictio II in his edition of the Defensor pacts, troubling himself little with Marsilius's conception of property rights.9 No less forceful was Richard Scholz, who affirmed in his edition of the text that Marsilius's manipulation of sources revealed him to have been no legal scholar.10 Drawing succour from this line of thought, Alan Gewirth, writing some eighteen years later, claimed that the Defensor pacts contained no serious theory of rights and thus declined to examine Marsilius's work on the legality of poverty further. …

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