Marsilius of Padua : the social contractarian

Abstract

This article aims to demonstrate that Marsilius of Padua's Defensor Pacis (1324) encompasses the basics of the social contract theory. Marsilius arrives at the social contractarian theory drawing upon both his past and present political engagements, and the theoretical legal-political debates of his time. He reconciles his background in the city-state of Padua, which struggled with the Holy Roman Empire to keep its autonomous legal order of republican liberties, with his political tendency to and his engagement with the imperial order. Yet, in constructing his political thought, he benefits immensely from the legal and political debates that had been going on since the beginning of the 10th century with the emergence of the Bologna law school, as well as the revival of both Aristotelian scholarship and Ulpian's contribution to the Digest. All of this had a decisive impact on the scope of the debates. The legal debates sought the legitimate origin of the Holy Roman Emperor's sovereignty. However, by breaking sovereignty into parts as executive power and legislative power, Azo Portius introduced the possibility of the separation of powers into the debate. Armed with his engagement with the Aristotelian 'doctrine of the wisdom of the multitude' and the renaissance of the Codex, Marsilius was able to further what Azo had dismantled by shifting the power that underlay the sovereignty from a bundle of legislative and executive powers to merely legislative ones. Through a convention that he derived from lex regia, he constituted the first version of the social contract. However, he applied to his newly formed conventio (contract) the prevailing legislative authority of the populus.