Theologians vs Canonists on Heresy

by John Scott

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The first part of the Dialogue, Ockham's massive treatise on heresy, was, on the evidence of manuscript survival, his most popular work. There are 33 extant manuscripts, mostly from c15 when there were also two printed editions made available.[Note 1] It is not obvious why it should so frequently have been copied. It is true that as a known anti-papalist who had died impenitent and never sought reconciliation with the Avignon papacy Ockham might have been considered something of a model by 15th century conciliarists at odds with the popes of their time. The ultimate purpose of his tract on heresy, moreover, was to establish the possibility of papal heresy and to consider what action should be taken against a pope who had become a heretic. It is perhaps plain, therefore, that both those who wanted to end the prolonged schism in the Church by forcing the resignation of, or deposing, the rival popes and, later, those who advocated the supremacy of a general council of the Church over the papacy would be keenly interested in the first part of the Dialogue as providing them with a justification for action against whichever particular pope they opposed. Papal propaganda from soon after the conclusion of the council of Basle encouraged later historians to pursue this line of thought -- one sure technique for consolidating the papacy's control over the church and for underlining the unorthodoxy of conciliarism was to provide the latter with suspect progenitors, of whom Ockham, along with Marsilius of Padua, was one of the most notorious.

But, in fact, as is now well known, Ockham himself was not a conciliarist.[Note 2] While he provided plenty of grist to the mill of those urging the possibility of papal heresy and fallibility, he was just as insistent that the indefectibility it was believed Christ had promised the Church could not be found in general councils either.[Note 3] Indeed, the Master wielded the razor of logic so ruthlessly that he produced arguments to deny that any part of the established Church, cardinals, the Roman church, all the clergy, all males, even all Christians having the use of reason could be relied on to maintain the faith, ending book 5 of the first part of the Dialogue with the conclusion that 'therefore, Christ's promises can be kept through baptised infants.' No section of the Church could buttress its privileges on the basis of the first part of the Dialogue.

But it seems to me likely that this very first book of the treatise would at once have captured the attention of 15th century theologians and persuaded them that this was a book which they should have. The very first question asked by the Student after the Prologue to the whole work has established the subject matter and means of proceeding is:

Since I am going to investigate many matters in the context of the disagreement I see in Christianity about heretical and catholic assertions ... I have reckoned to seek to find out first to whom it chiefly belongs, that is to theologians or to canonists, to decide what assertion should be considered catholic and what heretical.

We will see in a moment that the competition which this sets up between theologians and canon lawyers was a lively concern for the former in the fifteenth century, but let us note first Ockham's own answer to the question he has posed. Now, as is well known, one of the difficulties about using the Dialogue as a means of determining Ockham's own opinions is that it is one of his recitative works. In these he does not affirm his own views, as in polemical works like the Contra Iohannem or the Breviloquium, but recites or records various opinions about the subject on hand without indicating what his own view is, in the hope perhaps that such works would meet less resistance from orthodox copyists.[Note 4] This technique is made explicit in the Prologue to which I have already alluded where the Student says:

Do not set out only one opinion but ... several opinions about the same question. But would you consent not to indicate to me what you yourself in your wisdom think. For although I certainly do not want you to neglect your own opinion when you examine different and conflicting assertions, would you nevertheless not make clear what your own is?

Despite this method of proceeding we can in some places determine pretty easily what Ockham's own views were. This first book is one such place. The first chapter lists three brief arguments affirming the superiority of canonists while the second deals more substantially with eight arguments for the superiority of theologians; the next three chapters reply at length to the three arguments of chapter 1, while no reply is offered to the eight arguments of chapter 2. That is the procedure that is followed throughout the book -- arguments in favour of canonists are always answered, those in favour of theologians are not. Moreover, while theologians are always referred to respectfully we find this remark from the master in chapter 3:

I want you to know that I am acquainted with some theologians who in their hearts very much look down on canonists of the modern time as being unintelligent, presumptuous, heedless, liars, deceivers, scoffers and ignorant, reckoning that they do not know the meaning of the sacred canons.

This theme of the ignorant and dangerous canonist was one that was eagerly taken up by many fifteenth century theologians, only too well aware that they had fallen behind in the competition. So we find hostility to canonists in both Pierre d'Ailly and Jean Gerson. The former frequently attacks rudas iuristas and believed that the legalistic spirit of the times encouraged people to forget epikeia in interpreting positive laws. It was not the law itself that he was critical of but its practitioners who did not plead for those who needed help but were driven by a love of gain. The canonists' approach to the scriptures is a sign of their magnae ruditatis et ineruditionis, he argued.[Note 5] Gerson, in his capacity of chancellor of the University of Paris, delivered a number of addresses still extant to graduates of the Faculty of Canon Law. In each of them he delineates carefully the contribution canon law can make to the church, emphasising its inferiority to theology, the architectonic science to which it is to be subordinated, and warning the new graduates that they must not presume to involve themselves in matters that theologians should deal with. The presumption of contemporary canonists had led to many of the contemporary church's problems, he believed. In particular, he insists that the determination of heresy is something that should be left to theologians.[Note 6] Later conciliarists, caught up in the conflict between Eugenius IV and the council of Basle, were even more distressed by the influence of canonists. For Heimerich van der Velde the lamentable state of the church was due to men who undervalue 'the revelations of theology' and who prefer 'human wisdom', that is legal knowledge which is 'foolish in the eyes of God.' Juan de Segovia was another who believed in the primacy of theology and blamed the jurists for the development of the theory of papal sovereignty.[Note 7] Perhaps the clearest statement of the theologians' case is found in a letter from the Council of Basle to the emperor in 1439 exhorting him to seek advice from universities on the question of which side to support, because they have 'many very expert and studious doctors and masters in theology, whose proper office by the nature of their profession and studies it is to decide on faith'; bishops may no longer decide alone 'now that the weeds of human laws, to which bishops of modern times give such importance, have grown up.'[Note 8]

It is not surprising that theologians committed to the reform of the church and to a general council's role in that reform should have been suspicious of canonists -- one constant and powerful argument of the papalists was that a general council could be summoned only by the pope and similarly could be prorogued only by him. This argument, like most of the papal case derives from the Decretum.[Note 9] Overall the papal position, as van der Velde recognised, rested on 'the very numerous judgements of the jurists.'[Note 10] But, in addition to the theologians' intellectual opposition to the canon lawyers, there was very probably another factor in their frequent diatribes against canonists in the 15th century, and that was the gradual but inexorable supplanting of theology by law as more popular with students and, more importantly, as more highly valued by those who would be employing graduates. Ecclesiastical courts, which had been staffed predominantly by theologians in the early 14th century, came to be dominated by law graduates later in that century and particularly in the 15th century. Such statistical data as have been extracted from the (mainly English) sources show this fairly conclusively. For instance, a study of the academic degrees of English bishops shows that in the reign of Henry III there were 15 theologians and 1 lawyer, but in the years from 1377-1509 there were 48 theologians and 55 lawyers.[Note 11] A study of the qualifications of Exeter canons shows that there was a steady growth in the number with legal qualifications from 39% in 1300-1325 to 61% in 1426-1450.[Note 12] Alan Cobban's studies of the colleges at Oxford and Cambridge lead to the same conclusion. He sums up the situation thus, ' ... by the time of the foundation of New College [1379], a degree in civil or canon law or both had come to supersede a qualification in theology as a prerequisite for a successful career in ecclesiastical administration.'[Note 13]

Anecdotal evidence confirms the same trend. We can note, for instance, the late 14th century sermon lamenting that fathers are putting their sons to law not to divinity, and d'Ailly's accusation 'that the apostolic see promotes more lawyers and canonists than theologians to prelacies of the church.'[Note 14] Even Richard de Bury, bishop of Durham, who quite deliberately had few law books in his library and was early in his career the patron of Bradwardine, Burley, Fitzralph, Holcot and other theologians, was forced by the needs of his diocese to employ more lawyer clerks than theologians towards the end of his life.[Note 15]

In these circumstances it is not surprising that Ockham's 15th century readers embraced his dismissive opinions about canonists. More puzzling is their place in, or, rather, the primacy of their place in his treatise. Why did Ockham begin his treatise on heresy with the question of the respective merits of canonists and theologians? Despite the fact that John XXII, like most of his predecessors since Innocent III, was a lawyer, or, as Ockham says of him in Contra Benedictum 'a quarrelsome advocate completely ignorant of theological learning'[Note 16], his pontificate provided great employment for theologians. Ironically, as though he had read Ockham and been persuaded by him, it was his zealous pursuit of heretics that led to this. The reason for Ockham's own presence at Avignon, for instance, was to allow an examination of suspect opinions of his by a commission of theological experts - as John XXII put it in a letter to King John of Bohemia in 1330, '[Ockham] had been called to the Curia and his writings had been assigned to many doctors so that they might examine them with diligence and make clear what they found that was heretical or erroneous'.[Note 17] Moreover, a contemporary resident at Avignon was Meister Eckhart, whom Ockham believed to be an outrageous heretic, whose opinions were also being examined by theologians.[Note 18] And it is well known that John's overturning of traditional Franciscan views on poverty followed a full debate on the question by theologians whose opinions he had sought. His encounter with Marsilius of Padua also provoked a widespread canvassing of the views of theologians.[Note 19] The situation is nicely summed up in a letter from one Stephen of Kettleburg to his friend John Lutterell, former chancellor of Oxford and Ockham's accuser before the pope at Avignon.

The situation at the Curia these days has changed, in that our Lord the supreme Pontiff has shifted wholly and completely his special affection, which heretofore he directed towards jurists thinking them the wise ones, to theologians - and especially to masters in sacra pagina. The result has been that any master proficient in fact and by reputation in theology, who is worthy to bear the title of master and who comes to the apostolic see, does not depart from the Curia. For in the first place, our Lord the Pope liberally provides them with great honours and prebends, and depending on varying conditions some he elevates to episcopal dignity and others to archiepiscopal sees ...[Note 20]

That Kettleburg speaks of the situation as having changed shows that there was nonetheless tension between the two disciplines, and Ockham was not the first to compare the practitioners of the two disciplines. As early as 1240 Humbert of Romans in the chapter 'On those studying canon law' of his De eruditione praedicatorum had complained that 'There are others who so extol their own science that they have reached such a level of stupidity as to say that the church of God is better ruled by their laws than by theology.'[Note 21] Aquinas thought it unsuitable and laughable for professors of sacred doctrine (theologians) to adduce iuristarum glossulas as authorities 'since we ought to assent to divine more than to human judgement'[Note 22] and Dante's lament that 'the Gospel and the great Doctors are neglected and only the Decretals are studied' is well known.[Note 23] There is a Quodlibet of Godfrey of Fontaines on the subject and a quaestio disputata of Francis Caraccioli on whether a lawyer or a theologian would be a better ruler of the church. In the latter, the argument in favour of the theologian takes up about 3 pages, with liberal quotations from St. Bernard's De consideratione, a widely known source of anti legal gems, while the lawyer is allowed only the following single line, 'And when it is argued in reply that a jurist can better defend the rights of the church, it should be said that it is not so (quod non).'[Note 24]

Nevertheless, these general barbs directed against canonists can not, I think, explain why Ockham would begin his major treatise on heresy with a consideration of canonists and theologians. The work is a sustained and well argued theoretical investigation, 'the most extensive single discussion of heresy in our period'[Note 25], not a work an engaged thinker as Ockham was at this time would introduce with a popular debating topic. Why then did he begin in this way? I suggest that there were two pressing reasons for this, and for his implicit but unmistakable conclusion that the determination of heresy belongs to theologians. The first is that it was essential to the whole practical purpose of the treatise that the authority of canon law be impugned. Ockham was convinced that John XXII was a heretic; most of his contemporaries, even among his fellow Franciscans, did not agree but rather accepted John as a legitimate pope. It was therefore necessary for Ockham to define heresy in such a way that he could turn the tables on John who had condemned him and the other Michaelists as heretics. The accepted view was that a heretic was someone who obstinately maintained an opinion that had been condemned by the authority of the universal church. Ockham agreed with this, but the key question for him was who possessed such authority. The standard opinion was that it was the pope,[Note 26] and the justification for this opinion lay in canon law. Aquinas is explicit about it in his Summa Theologica: 'This authority resides principally in the highest pontiff', he affirms, buttressing this opinion with a reference to the Decretum.[Note 27] Given his own position relative to that of Pope John XXII this is just what Ockham could not accept. As is well known, he wanted to replace the institutional authority of the pope with the cognitive authority of theologians like himself.[Note 28] Hence, since the papal claim to the right to make authoritative decisions about heresy relied on canon law there was for Ockham a need from the very start to affirm the superiority of theologians to canonists.

The second reason why this first book was a necessary introduction for Ockham was because in fact the investigation and prosecution of heretics were governed by canon law. Despite John's own employment of theologians to examine particular opinions the theoretical basis for the examination of heretics was to be found in the Decretals, the second volume of canon law.[Note 29] Although heresy had become a vital a problem throughout the 12th and 13th centuries it had not been well pondered by theologians, or at least not at the theoretical level, although there was a number of detailed examinations of the beliefs and practices of particular heretics. Alan of Lille's De fide catholica which treats of the Cathars, the Waldensians, the Jews and the Muslims is a well known early example,[Note 30] and contemporaries of Ockham who were writing tracts on heresy fell into this pattern too. One example is Alvarus Pelagius whose Collirium contra novas hereses deals, like Alan of Lille, primarily with the beliefs of heretics; for instance, he writes typically, 'Again, the heretic Marsilius dogmatised that any priest has as great a power as has the pope, which is a heresy because ... .'[Note 31] Apart from these specific analyses of a variety of particular heresies theologians had not explored the concept of heresy as such in depth.[Note 32] Of course, in commentaries on Lombard's Sentences there were references to heresy, but usually only in connection with specific questions, such as the validity of sacraments administered by heretics or the church's role in the punishment of heretics.[Note 33] Even Aquinas's account in the Summa Theologiae consists only in one question with four articles, namely, Is heresy a kind of unbelief? What is its field? Are heretics to be tolerated? Should those returning from heresy be received?[Note 34] Even the ecclesiological treatises that were written by the generation before Ockham, by men such as Giles of Rome or James of Viterbo, did not treat of heresy.

Ockham admits frankly this problem for the theologian. The Master presents this argument in chapter 11 of book 1:

Some canonists seem to think that it pertains chiefly to them to judge between heretics and catholics. It can be argued as follows. ... To judge between heretics and catholics pertains more chiefly to those who reflect on heretics more carefully and with more application. However, such people are canonists. So it is that a sufficiently long special title on heretics has been inserted in the book of Decretals. ... However mention is rarely made of heretics in theology.

So Ockham was writing the first medieval theoretical treatise on heresy[Note 35] and as a result had to establish first of all his, or rather theology's, credentials. In this regard it is significant that, despite the Student's framing of the question in terms of canonists and theologians, an important part of the debate is conducted by comparing the scientia of the canonists and of the theologians. An key issue dealt with is which of the two is subalternating and which is subalternated. The locating of one's subject matter as a scientia within one of the various schema of sciences that had been drawn up had become a standard practice since the translation of Aristotle's Posterior Analytics in the late 12th century. In particular, related sciences were analysed in order to determine which was superior to which, which relied on principles derived from its superior or subalternating science.[Note 36] I have noted an allusion to it already in Humbert of Romans. Indeed by Ockham's day the Prologue to most Sentence commentaries began with a consideration of the scientia of theology. The first question in Scotus's Ordinatio was Utrum theologia sit scientia and this is the second question that Ockham treats in his commentary. Most of the theologians of the day have left treatments of this question, either in their Sentence commentaries or in Quodlibetal disputations. Augustinus Triumphus asks specifically which of the scientie of theology and canon law subalternated the other.[Note 37] I think that we must see it, therefore, as an important preliminary task in a new intellectual endeavour to establish its status as a scientia prior to an exposition of it.

I believe that this was especially important for Ockham because there was available a widely known and powerful presentation of the claims of the status of the scientia of canon law. This is in the Prologue to the Summa aurea of Hostiensis, perhaps the best known and most highly regarded of medieval canonists. After the usual invocation to God, called 'the head and author of all sciences', and some standard self-justification, the author has a section headed Unde habuit originem liber iste. This begins with the Creation and after a brief history of the development of law we read this:

You have three kinds of scientia, that is, civil wisdom ... then theological scientia. But canonical scientia comprehends both these, and indeed all law, whether it be divine or human, public or private. ... This scientia of ours, therefore, is not purely theological or civil but participates in both. ... This scientia of ours can truly be called the scientia scientiarum ... since it is the art of arts.. ... For if it is understood and known well, both spiritual and temporal matters can be ruled by it, so it should be accepted and maintained by everyone ... and all ought to be led by it and not by their own understanding.[Note 38]

After showing by natural reason that this scientia is worthier than all others and should be preferred to all, he concludes the Prologue thus:

Thus canonical scientia seems to embrace all philosophy ... and so it seems that we should not ask to what part of philosophy it should be supposited but to what scientia the whole of philosophy should be supposited, and one can reply, to the canonical scientia which comprehends everything.[Note 39]

We can not be sure that Ockham read Hostiensis, but it seems highly likely given his wide knowledge of the canonists and the latter's reputation. But even if he had not, the Prologue shows both the ambitious claims that were being made for canon law, which Ockham had to counter, and the importance of the idea of scientia in contemporary thought. I believe that such claims and the increasing importance of canon law provide the background against which the first book of Ockham's treatise on heresy can best be understood.

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