Moreover, rights of the community were not unrecognized, and indeed were supported by elaborate theories as the Middle Ages advanced to their climacteric. The thought of a contract between ruler and people frequently appears, and reference to the contract made at Hebron between David and the people of Israel (2 Sam. v. 3). The civil jurist also looked back to the principle of the jus gentium giving to every free people the right to choose a ruler; also to that famous text of the Digest, where, through the lex regia, the people were said to have conferred their powers upon the princeps.[415] With such thoughts of the people’s rights came theories of representation and of the monarch as the people’s representative; and Roman corporation law supplied the rules for mediaeval representative assemblies, lay and clerical.[416]
The old Germanic state was a conglomerate of positive law and specific custom, having no existence beyond the laws, which were its formative constituents. Such a conception did not satisfy mediaeval publicists, imbued with antique views of the State’s further aims and potency. Nor were all men satisfied with the State’s divinely ordered origin in human sinfulness. An ultimate ground for its existence was sought, commensurate with its broadest aims. Such was found, not in positive, but in natural law—again an antique conception. That a veritable natural law existed, all men agreed; also that its source lay back of human conventions, somehow in the nature of God. All admitted its absolute supremacy, binding alike upon popes and secular monarchs, and rendering void all acts and positive laws contravening it. It must be the State’s ultimate constituent ground.
God was the source of natural law. Some argued that it proceeded from His will, as a command, others that its source was eternal Reason announcing her necessary and unalterable dictates; again its source was held to lie more definitely in the Reason that was identical with God the summa ratio in Deo existens, as Aquinas puts it. From that springs the Lex naturalis, ordained to rest on the participation of man, as a rational creature, in the moral order which he perceives by the light of natural reason. This lex naturalis (or jus naturale) is a true promulgated law, since God implants it for recognition in the minds of men.[417] Absolute unconditional supremacy was ascribed to it, and also to the jus divinum, which God revealed supernaturally for a supramundane end. A cognate supremacy was ascribed to the jus commune gentium, which was composed of rules of the jus naturale adapted to the conditions of fallen human nature.
Such law was above the State, to which, on the other hand, positive law was subject. Whenever the ruler was conceived as sovereign or absolute, he likewise was deemed above positive law, but bound by these higher laws. They were the source and sanction of the innate and indestructible rights of the individual, to property and liberty and life as they were formulated at a later period. It is evident how the recognition of such rights fell in with the Christian revelation of the absolute value of every individual in and for himself and his immortal life. On the other hand, certain rights of the State, or the community, were also indestructible and inalienable by virtue of the nature of their source in natural law.[418]
This abstract of political theory has been stated in terms generalized to vagueness, and with no attempt to follow the details or trace the historical development. The purpose has been to give the general flavour of mediaeval thought concerning Church and State, and the Individual as a member of them both. One observes how the patristic and mediaeval Christian thought mingles with the antique; and one may assume the intellectual acumen applied by legist, canonist, and scholastic theologian to the discussion and formulation of these high arguments. The mediaeval genius for abstractions is evident, and the mediaeval faculty of linking them to the affairs of life; clear also is the baneful effect of mediaeval allegory. Even as men now-a-days are disposed to rest in the apparent reality of the tangible phenomenon, so the mediaeval man just as commonly sought for his reality in what the phenomenon might be conceived to symbolize. Therefore in the higher political controversies, even as in other interests of the human spirit, argument through allegory was accepted as legitimate, if not convincing; and a proper sequence of thought was deemed to lie from one symbolical meaning to another, with even a deeper validity than from one palpable fact to that which followed from it.