4. Philosophy of the State and of Law.
The originality of the modern doctrines of natural law was formerly overestimated, as it was not known to how considerable an extent the way had been prepared for them by the mediaeval philosophy of the state and of law. It is evident from the equally rich and careful investigations of Otto Gierke[1] that in the political and legal theories of a Bodin, a Grotius, a Hobbes, a Rousseau, we have systematic developments of principles long extant, rather than new principles produced with entire spontaneity. Their merit consists in the principiant expression and accentuation and the systematic development of ideas which the Middle Ages had produced, and which in part belong to the common stock of Scholastic science, in part constitute the weapons of attack for bold innovators. Marsilius of Padua (Defensor Pacis, 1325), Occam (died 1347), Gerson (about 1400), and the Cusan[2] (Concordantia Catholica, 1433) especially, are now seen in a different light. "Under the husk of the mediaeval system there is revealed a continuously growing antique-modern kernel, which draws all the living constituents out of the husk, and finally bursts it" (Gierke, Deutsches Genossenschaftsrecht, vol. iii. p. 312). Without going beyond the boundaries of the theocratico-organic view of the state prevalent in the Middle Ages, most of the conceptions whose full development was accomplished by the natural law of modern times were already employed in the Scholastic period. Here we already find the idea of a transition on the part of man from a pre-political natural state of freedom and equality into the state of citizenship; the idea of the origin of the state by a contract (social and of submission); of the sovereignty of the ruler (rex major populo; plenitudo potestatis), and of popular sovereignty[3] (populus major principe);
- ↑ Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staatstheorien, Breslau, 1880; the same, Deutsches Genossenschaftsrecht, vol. iii. § II, Berlin, 1881. Cf. further, Sigm. Riezler, Die literarischen Widersacher der Päpste, Leipsic, 1874; A. Franck, Réformateurs et Publicistes de L'Europe, Paris, 1864.
- ↑ Nicolas' political ideas are discussed by T. Stumpf, Cologne, 1865.
- ↑ Cf. F. von Bezold, Die Lehre von der Volkssouveränität im Mittelalter, (Sybel's Historische Zeitschrift, vol. xxxvi., 1876).
