The Franciscan priest John Duns Scotus was born in the Scottish border village of Duns in about 1266. He must have excelled in his studies, because when he was, at most, in his early teens he was taken to the Franciscan centre in Oxford to continue his education.1He remained there as a teacher of philosophy and theology for most, if not all, of the following two decades or so, and then in 1302 moved to the University of Paris, where he continued to teach and write. It seems to have been at this point that he developed his political theory. That theory, composed during the last years of William Wallace, provides what may be a clue to Scotus’s attitude to the dispute between Scotland and England over the right to rule Scotland.
Elsewhere I have suggested that it was a coincidence that Scotus was exploring the power of the human will and the concept of freedom while a war of independence was being waged in Scotland.2 I no longer think it a coincidence. The dispute between Scots and English must have informed in a particularly vivid way Scotus’s youthful experiences in the Borders, given the military and political turmoil that then marked the Scottish borderlands, and it may also have informed his experiences during his years in Oxford, a centre of legal and theological excellence to which King Edward I turned for guidance in the preparation of his case for his right to rule Scotland. It would not be surprising if these experiences impacted on his philosophy.
However, I do not wish to discuss here the question of what motivated Scotus’s interest in political theory and in particular the question of the origin of political dominion, although it should be said that Allan B. Wolter, OFM, the leading Scotist scholar of the past half-century, has suggested that Scotus’s interest arose from his active involvement in the dispute between Pope Boniface VIII and Philip the Fair concerning the origin of the French king’s ownership both of his political authority and of his feudal possessions.3
Whether or not this explanation of Scotus’s interest in the question is to be preferred to the explanation (not considered by Wolter) that Scotus developed his political doctrine with an eye on the political relations between Scotland and England, the fact remains that whatever the reason for his interest, his ideas might still have been taken up by Scots who were actively engaged in the political process that in due course led both to Scottish independence and to the document that most famously defined that independence, the Arbroath Declaration. For Scotus was much the most outstanding Scottish philosopher and theologian of his day, and it would be natural for the Scottish leaders to turn to him, or at least his writings, to see what help he might provide in the articulation of the arguments they sought to construct in justification of their acts. Here I shall be comparing Scotus’s ideas with the ideas of those at the forefront of the movement for Scottish independence and shall not seek to resolve any of the related problems concerning historical causation.
To put flesh on these considerations, I wish now to take the first steps towards arguing that Scotus’s political doctrine impacted on the content of at least two major Scottish documents, the Declaration of the Clergy (1310) and the Declaration of Arbroath (1320),4which were penned during the twelve years that followed his death in 1308.
SCOTUS’S CONCEPT OF FREE WILL
Scotus was the great philosopher of freedom in the Middle Ages. This description of him is particularly merited in view of what he has to say of freedom at the level of the individual, but there is a formidable unity in his thinking as a whole, and it is therefore not surprising that in his political theory the emphasis is on a concept that we would now identify as that of national independence, a kind of freedom that bears a strong formal resemblance to the individual sort. I shall therefore first expound his concept of individual freedom before expounding his concept of the kind of freedom that characterises a community.5
Scotus identifies two sorts of act of will, one of which he describes as natural and the other as free. To deal first with natural will: biological creatures such as us desire certain things by our very nature. Above all we desire to stay alive. When we are threatened with death it is almost as if the organism then takes over and does whatever it can or must in order to maintain itself in existence. If we are choking, we fight for breath; if a lethal blow is aimed at us, we try to ward it off; if we are starving, we reach out for food. That is how we are by nature. The desire to stay alive takes charge and impels us to act. Beyond this most basic desire there are other desires: for warmth, for sleep, for company, and so on. We are dealing here with biological imperatives that we have to obey if we are to function well as the biological creatures we are. Scotus speaks of the ‘will’ in this context, for by our nature we will to obey these imperatives. And for obvious reasons he calls this ‘natural will’.
But the will to obey a biological imperative can be thwarted. We can say ‘no’ to it, for we are not merely passive beings, so constructed that we must sit back and let nature take its course. For there is another principle in us, one that Scotus terms ‘free will’. That we can reject a biological imperative is demonstrated by the fact that we can say ‘no’ even to the imperative that we stay alive. For people can overcome their natural fear of death and instead voluntarily become martyrs in a religious cause, voluntarily fight for their country or voluntarily commit suicide. In such cases the will is active but it is plainly a different principle of action from the principle of natural will. Although hungry, I do not necessarily eat food that is to hand, for I may know that the food belongs to someone else and that taking it without permission is therefore theft. In such an act of forbearance I display my freedom.
There are two aspects to our freedom, one negative and the other positive. The negative aspect is our independence from nature; that is, we are not determined to act by any act of nature. In particular, we can always do as morality demands even if the moral demand conflicts with a demand of nature. And where we do act as nature demands, but do so only in light of the judgment that the act is morally permissible, then we have acted not because nature has demanded the act but because our conscience has sanctioned it. Hence, even to act according to nature is to act freely so long as we act in light of our moral judgment and not simply because of a natural urge.
The positive aspect of our freedom concerns what Scotus terms our ‘openness to opposites’, the fact that whatever we actually do in a given concrete historical situation, we could in that same situation have done something else instead. Possibilities open to us are real live possibilities. Our future is not predetermined. What in fact transpires does so because we have realised one of the several genuine possibilities. We are independent, therefore, in the double sense that we are both free from nature and free to realise one of the several mutually opposed possibilities that are always open to us. Of course, there is a sense in which dead matter can produce opposite effects. For example, the sun can bleach some things and blacken others; it can melt some things and harden others; but the point is that what it bleaches it cannot, in those same circumstances, blacken; what it melts it cannot, in those same circumstances, harden. In that sense, far from having power the sun is powerless, for it cannot do other than precisely what it does do. We human beings are quite otherwise. We can do otherwise than we do, and this is because we are, in the way just described, independent of nature. Our principle of change lies within us, with our own judgments and choices. The principle is not imposed from outside.
SCOTUS’S CONCEPT OF INDEPENDENCE
It is upon this concept of individual independence that Scotus proceeds to construct a concept of independence in the political sense. His political theory occurs in the context of the theological question whether a thief can be truly penitent if he has not made restitution.6 This might seem an odd context but it is not really so, for restitution of property to its rightful owner naturally raises a question about the origin of property rights, and that question is a central one in political theory. As Scotus puts the question: ‘What is the source of distinct ownership such that this may be called “mine” and that “yours”? For this is the basis of all injustice through misappropriation of another’s property and consequently of all justice in restoring it.’7 It is natural to think that Scotus had in mind such things as an ordinary thief might steal, but I wish to hold in the background the thought that Scotus might also have had in mind a non-ordinary thief, such as a king who had stolen another country and who also (as with the ordinary thief) cannot be a true penitent unless he restored to its rightful owners the property he had stolen.
The source of property rights, argues Scotus, cannot lie in the ‘state of innocence’, the state of nature prior to the Fall, for there was then no mine or thine; instead, everything was held in common. Scotus invokes in support of this claim a proposition in theDecretals of Gratian: ‘By the law of nature all things are common to all.’8 They are common to all because, as Scotus puts the point, such an arrangement will contribute to a peaceful and decent life and will provide needed sustenance.9 In the state of innocence a person would not seek by violence to take from another what another needed for life or comfort. It is therefore only after the Fall that property rights come into existence.
According to Catholic theology, the loss of innocence involved a radical change in human psychology in the direction of covetousness and a willingness to use violence against one’s neighbour. In the state of innocence there are no oppressors. After the Fall oppressors are part of the human scene and their presence has to be dealt with. A covetous and violent person would not only take more than he needs of the things that have been held in common, he would also be willing to use violence to withhold them from another who has a genuine need of what the covetous person has needlessly appropriated. In the face of this new psychological reality, it becomes necessary to divide up what has previously been held in common. The division could not be by natural law, since that law, as already stated, sanctioned the common ownership of things, and hence positive law was required for the task. A legislator is therefore required, and Scotus argues that the legislator must possess two qualities, prudence and authority.10 Prudence is needed for the obvious reason that the legislator’s job is to form a correct judgment as to the principles of division that would result in a decent and peaceful life for the citizens, and such judgment involves the exercise of practical right reason, that is, prudence. Furthermore, authority is required because prudence by itself is not enough. The mere fact that the legislator is prudent does not imply that others will attend to him. The word of a legislative authority must be sufficient to bind others also, and for that he must be recognised as having just command over others.
But from where is this just command to come? It is in his answer to this question that Scotus moves into territory that is also occupied by the Declaration of the Clergy and the Declaration of Arbroath. According to Scotus, authority takes two forms. The first, parental, is entirely according to nature, not according to any human convention or voluntary arrangement. Hence, even in the state of innocence the parent has a right to command and the child has a duty to obey; and after the Fall it remains a part of the natural order. It is simply a natural feature of parenthood. This is to be contrasted with the other kind of authority, the political. There are several differences. First, political authority is not exercised solely over members of the authority’s own family, and indeed it is possible that no member of the authority’s family is subject to his political command. Secondly, parental authority over a child does not cease if the child moves to a distant place, but political authority is held over people who live together in a civitas, a city or state, and if someone ceases to be an inhabitant of the state, the political authority that the ruler has over him thereby ceases. Thirdly, political authority can reside with either a single person or with what Scotus terms a community (communitas), a group to which he assigns no upper size. Fourthly, in contrast to parental authority, the justice of which is a natural endowment, political authority, as Scotus states the matter, ‘can be just by common consent and election on the part of the community’.11 While it is not by ‘common consent and election’ that parents justly command their children, by contrast the just rulership of a political authority derives from the choice of those who will be ruled. Scotus continues:
Thus, if some outsiders [extranei: that is, people who are not all in the one family] banded together to build a city or to live in one, seeing that they could not be well governed without some form of authority, they could have amicably agreed to commit their community to one person or to a group [communitas], and if to one person, then either to him alone – and to a successor who would be chosen as he was – or to him and his posterity. And both of these forms of political authority are just, because one person can justly submit himself to another or to a community in those things which are not against the law of God and as regards which he can be guided better by the person or persons to whom he has submitted or subjected himself than he could by himself.12
There are several elements in this doctrine that we have to take with us into the question concerning the major political scheme in the minds of Scottish political leaders in the two decades after Scotus devised and taught his doctrine. The first element is that of a social contract. The people are to choose their ruler by agreeing among themselves as to who the ruler should be. Secondly, and consequently, the people also choose the principle of transference of authority. This is crucial. It is not that the people choose the first ruler, and that thereafter the question of who is to rule is out of their hands; on Scotus’s scheme, it is never out of their hands. It could be agreed by the people that the transference of authority could be by birth, say, the principle of primogeniture, or at the end of one ruler’s rulership the people could agree among themselves as to who should be the next ruler. Thirdly, the ruler is put in place because there is a job to be done, one that requires exercise of practical right reason, that is, prudence. As Scotus says, the ruler must be able to guide the people better than the people individually can guide themselves. Fourthly, the people can choose as a ruler either a single person or a ‘community’.13 This should be mentioned if we are looking to support the claim that there is a close relation between Scotus’s political theory and the politics of Scotland. For in the decades from 1286, the phrase ‘community of the realm’, referring to the political elite in Scotland, had become a term in rather frequent use in Scottish documents,14 and the phrase perhaps gives particular significance to Scotus’s use of the term ‘community’ in his description of one kind of just rulership. But whether the political authority be a single person or a ‘community’, the outcome is that a nation governed in the way described by Scotus is independent in the sense that, as with individual independence, the principle of change lies within and is not external. The people come together and decide among themselves and for themselves who is to govern them and what the principle of change of ruler should be.
Before moving on to the question of the relation between Scotus’s political theory and Scottish politics, I should add that Scotus, in political theory as in so much else, was his own man. None of his contemporaries and predecessors produced a theory quite like his. Some did describe a form of social contract theory, although in that feudalistic age very few endorsed one, but nevertheless Scotus’s form of the theory was unique, unlike that of any of his contemporaries and predecessors.
SCOTUS AND TWO SCOTTISH POLITICAL DECLARATIONS
I turn finally, and briefly, to the question of how Scotus’s doctrine stands in relation to the politics of Scotland in the first two decades of the fourteenth century and in particular to the Declaration of the Clergy and the Declaration of Arbroath. First, the Declaration of the Clergy in which the clergy of Scotland declared themselves in favour of King Robert: the date of the declaration is disputed although the document itself bears the date 24 February 1310.15 The declaration begins by affirming that John Balliol was made king of Scotland by the king of England. This is the nub of the clergy’s criticism of Balliol’s status, for they argue that the English king does not have the authority to determine who will be king of Scotland. Only the Scots themselves have that authority:
The people and commons of the aforesaid kingdom of Scotland . . . agreed on the said Lord Robert, the king who now is, in whom the rights of his father and grandfather to the aforesaid kingdom, in the judgment of the people, still reside and flourish incorrupt; and with their concurrence and consent he was raised to be king, to reform the deformities of the kingdom, correct what required correction, direct what needed direction; and by their authority having been advanced in the kingdom, he was solemnly made king of Scots . . .
The declaration then refers to the cardinal virtues by which Robert Bruce is fitted to rule and be worthy of the name of king, a point to be borne in mind in view of Scotus’s emphasis on the ruler’s possession of the cardinal virtue of prudence. And it continues: ‘and if any one in opposition claims right to the foresaid kingdom by letters sealed in the past and containing the consent of the people and the commons, know that all this took place by force and violence which could not then be resisted . . .’16
It is clear that the political doctrine in this document is Scotus’s so far as it focuses repeatedly on the doctrine that legitimate rulership depends on the consent of the people; the ‘people agreed’ upon Lord Robert; it was ‘with the concurrence and consent of the said people’ that Robert was King; it was ‘by their authority’ that he was set over the people. If anyone has documents to the contrary, including documents containing ‘the consent of the people’, then the people were not then, that is, at the time of giving their consent, acting freely or voluntarily; their consent was extracted by force and was therefore not real consent. In light of the fact that the political theory underlying the declaration is thoroughly Scotistic, it is of particular interest that the document was presented in the General Council of Scotland celebrated in the Church of the Friars Minor, the Franciscan Church, in Dundee. In short, Scotus’s own order provided the venue for the occasion.
The Declaration of Arbroath, ten years later, repeats the message that a king does not rule except by the consent of those who are ruled, for it states that Robert was made prince and king ‘by the due consent and assent of us all’. And it then adds a new element to the Scotistic story that we have extracted from the Declaration of the Clergy. I quote in full:
We are bound to him [King Robert] for the maintaining of our freedom both by his right and merits, as to him by whom salvation has been wrought unto our people, and by him, come what may, we mean to stand. Yet if he should give up what he has begun, seeking to make us or our kingdom subject to the king of England or to the English, we would strive at once to drive him out as a subverter of his own right and ours, and we would make some other man who was able to defend us our king.17
Nothing could more clearly encapsulate Scotus’s doctrine that the ruler justly rules his people solely by their choice and consent. From this doctrine it follows immediately that the ruler’s authority can be transferred solely by an act of the people and not at all by an act of the ruler. Of course, the people unwilling to lose their political power, which is, above all, the power to decide who will rule, are bound to replace the errant ruler by one who will work for and not against them.
The independence of the people resides, more than in anything else, in their freedom to determine who will rule; and having determined this, the people’s will is not followed by a period of passivity – their will is not switched off. They remain watchful, judging the quality of the job done by the person they have elected and ready to withdraw their consent to his rule if he fails them. In this collective act of self-determination lies their independence. It is formally the same as with the individual person, whose actions are determined from within and whose act of will is not followed by passivity – the will is not switched off. The person remains watchful, judging whether the line of action decided upon remains appropriate in all its aspects or whether it requires modification or abandonment in light of developments.18
I have argued that Scotus’s theory of freedom is articulated in the two great declarations that were issued within a few years of his death. There remains the question of historical causation, which I am not competent to answer, of whether this identity of doctrine in the theological work of Scotus and in the declarations was a coincidence or not. But I do note that Scotus was much the most prominent Scottish philosopher/theologian of his time and that his doctrine was therefore one that the senior Scottish clergy were likely to know.
My conclusion is that while Wallace was fighting for Scottish independence, Scotus was developing precisely the intellectual framework that the Scots within a few years would deploy in the chief documents that defined that independence. I also believe it possible that the documents in question were compiled with Scotus in mind. There remains an intriguing thought, which I have not pursued, that Scotus was actively engaged in the development of Scottish thinking on the matter of Scottish independence through discussions that he might have had with Scots whom he met at the great centres where he worked. If such discussions did indeed take place, then my suggestion, made some years ago,19 that the relation of Scotus to the Wars of Independence was one of theory to practice, is false. Scotus may, after all, have been on the side of practice as well as theory by working to the same end as the Scottish military leaders even although by utterly different means.20