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By Andrew Latham
A complete genealogy of the late medieval/early modern idea of sovereignty would entail tracing the evolution of its constituent concepts (legibus solutus; plenitudo potestatis; potesta absoluta; pro ratione voluntas; persona ficta; imperium; and dominium) across a number of distinct sites of political theorizing (canon law; Roman law; various polemical literatures; and the works of theologian and philosophers) over the course of several centuries (1075-1576). The purpose of this brief essay is more modest than that, however. Specifically, its goal is to demonstrate the plausibility of such a genealogy by tracing the evolution of three key concepts (plenitudo potestatis; potesta absoluta; and pro ratione voluntas) at one particular site of theorizing (canon law) during one specific century (the thirteenth).
Pro Ratione Voluntas, Plenitudo Potestatis, Potesta Absoluta
Pope Innocent III’s decretal Quanto personam, issued on 21 August 1198, makes a number of claims regarding the locus, source and character of supreme authority within the Church. With respect to the locus of supreme authority, the decretal clearly asserts that such authority is vested in the papal office. In condemning Bishop Conrad’s unauthorized translation from the see of Hildesheim to that of Würtzburg, Innocent argued that a bishop is married to his see and may not leave that see unless the marital bond had been dissolved. As only God, he maintained, was able to dissolve the bond of marriage, so only God was able to dissolve the episcopal marriage of a bishop to his see. Innocent then asserted that the pope is the “vicar of Christ” – that is, Christ’s deputy or agent on Earth – and that the pope, therefore, is exclusively empowered to sever the bond of episcopal marriage and translate a bishop from one see to another.
In conceptualizing the pope as the sole “vicar of Christ”, Innocent thus echoed Bernard of Clairvaux’s claim that the papal office was the sole locus of supreme authority within the Church. The pope did not share the title with the episcopate; nor were the bishops vicars of Christ in their own right. Rather, the pope stood above the bishops, in the place of Christ, wielding supreme power within the Church. But Innocent went far beyond the Abbot of Clairvaux, reconceptualizing the very nature of supreme power vested in the papal office. In making his case against Conrad, Innocent distinguished between two types of power wielded by the pope. On the one hand, he argued, both popes and bishops possessed what he called “ordinary” authority – that is, legitimate power derived from, and limited by, human law, tradition and custom. On the other hand, Innocent argued that the pope, by virtue of his being the vicar of Christ, also possessed an extraordinary form of authority – which he labeled “divine” authority. This authority, reserved exclusively to the papal office, allowed popes to exercise Christ’s extraordinary prerogative to transcend human law, tradition and custom in certain circumstances.
In conceptualizing the pope’s power in this way, Innocent thus added a further dimension to the idea of papal plenitudo potestatis. By the time Innocent was elected pope, the meaning of this term had largely been fixed in decretist thought. When used in connection with its adjunct in partem sollicitudinus it highlighted the difference between the pope’s universal jurisdiction and the bishops’ merely local jurisdiction. When detached from its adjunct, the term conveyed a sense of papal legislative omnicompetence and judicial primacy (in language of Roman law papa est iudex ordinaries omnium). And, by the end of the twelfth century, plenitudo potestatis had also come to imply that the partial and lesser jurisdictional powers of the bishops were derived from the fuller and greater jurisdictional authority of the pope.  In Quanto personam, however, Innocent invested it with an additional layer of meaning: for Innocent, the idea of papal plenitudo potestatis also entailed a claim that the pope both shared in, and exercised, the divine power of God Himself.
Henricus of Segusio, or Hostiensis as he came to be known after he was created cardinal bishop of Ostia in 1262, developed the concept of plenitudo potestatis more fully than any of his canonist predecessors. Through commentaries on Innocent III’s Quanto personam, and on subsequent Innocentian decretals such as Cum ex illo, Inter corporalia, Proposuit, Magnae devotionis and Cum ad monasterium he introduced a number of conceptual innovations that brought the seeds planted by Innocent to full flower. Foundationally, Hostiensis refined and amplified Innocent’s idea of vicarius Christi. The decretists and early decretalists had not made much of this idea, focusing their attentions instead on the idea of pro ratione voluntas. But in Hositiensis’ hands, the idea that the pope shared in and exercised Christ’s divine authority became the cornerstone of a more unfettered papal absolutism than even Tancred had espoused. His argument was simple, even if typically expressed in extravagant language. All political authority is derived from God, therefore all who exercise such authority can be said to govern by divine mandate. But the pope’s authority, he argued, was qualitatively different from that of other princes. Echoing language used by Innocent and drawing on many of the same texts as Laurentius, Hostiensis argued that the pope did not govern by divine mandate; rather he governed as a divine agent. As the vicar of Christ he acted in Christ’s place. Therefore, he concluded in his gloss on Quanto personam, whenever the pope acts de iure, he exercises Christ’s divine authority and therefore his acts are, ipso facto, licit. The only factor limiting the papal exercise of this divine authority was sin: Given that Christ was without sin, Hostiensis argued, the pope simply could not be acting in Christ’s place if he was acting sinfully.
Upon this understanding of vicarius Christi, Hostiensis then proceeded to develop precise legal concepts to replace Innocent’s somewhat nebulous formulations. Perhaps most importantly, where Innocent had written vaguely about papal plenitudo potestatis, and where the decretists had attempted to flesh out Innocent’s thought in rhetorically expansive but conceptually imprecise ways, Hostiensis set out to enumerate the specific legal powers inherent in the pope’s fullness of power. One way he did this was to attempt to parse the vague phrase “above the law” (supra ius or supra omnia iura) that had come into increasingly wide use among the canonists since Innocent’s decretal Proposuit. According to Hostiensis, the pope could act supra ius in two ways. On the one hand, under the doctrine of what he (following Innocent) called suppletio defectuum, the pope could make good any deficiency in fact, law or legal procedure. As Watt put it, the “suppletio was an act of the absolute power to remedy defects that had arisen either through the non-observance of existing law or because existing law was inadequate to meet the particular circumstances.” On the other hand, Hostiensis argued that the power to act supra ius entailed the authority to dispense from the law. Again quoting Watt, dispensation “was a use of the absolute power to set aside existing law.” To be sure, Hostiensis believed that the pope required a valid cause or reason to act supra ius. But he also believed that ultimately it was the pope himself who had the power to determine whether such cause or reason existed in any given case.
Hostiensis also sought to refine the concept of plenitudo potestatis by bringing greater precision to Innocent’s somewhat fuzzy concept of papal “divine power.” He did so by drawing on the works of early thirteenth century theologians such as Godfrey of Poitiers, William of Auxerre and Alexander of Hales who had distinguished between two facets of God’s divine power: His absolute power (potestas absoluta) and His ordinary power (potestas ordinata). According to these theologians, potestas absoluta referred to God’s abstract or theoretical power to do whatever he pleased, while potestas ordinata referred to the limited or ordered power He actually chose to exercise. Applying these theological concepts to the idea of papal authority introduced by Innocent in Quanto personam, Hostiensis argued that the pope, too, exercised two kinds of power. Here, however, he dramatically altered the meaning of the distinction introduced by the theologians. Where they had understood this distinction as referring to the difference between “what God could have done other than things he chose to do,” Hostiensis understood the pope’s absolute power or potestas absoluta as a form of divine power. On his view, the pope’s ordinary power or potestas ordinata was his human power to act within, and on the basis of, the law, while his potestas absoluta was his divine power to transcend the law – that is, his power to act beyond the laws that defined and limited his potestas ordinata.
Drawing these two strands of thought together, Hostiensis further elaborated his idea of potestas absoluta in his commentaries on two papal decretals, Alexander III’s Ex publico (dealing with marriage law) and Innocent III’s Cum ad monasterium (dealing with solemn vows). In the first of these, Hostiensis argued that the pope could “allow a spouse to separate from an unwilling partner by exercising his absolute power.” In the second, he made the case that the pope could use his potestas absoluta to dispense from the monastic rule, but only with just cause. Taken together, these commentaries reveal that Hostiensis had come to believe that while the pope could not promulgate divine law, and was in fact subject to it, he could dispense from it in certain narrowly prescribed matters. This was a new element of papal potestas absoluta. Hostiensis’ decretist and even decrelalist predecessors had argued that the pope could, in certain circumstances, supplement or dispense from positive law, but none had gone so far as to claim that the pope could dispense from higher law. But Hostiensis now claimed that as vicar of Christ the pope could exercise God’s authority to set aside natural and divine law as it pertained to marriage and vows. In subsequent comments on Celestine III’s decretal Sicut unire (dealing with the pope’s power to unite episcopal sees), Hostiensis went even further, arguing that the power to dispense from divine law was not limited to marriage and vows, but could also be used to regulate the status ecclesiae itself. In so doing, he broke with his predecessors who had argued that the pope was bound by the Church’s fundamental constitution and could neither alter nor abolish the status ecclesiae.
But if Hostiensis broke with his predecessors regarding the specific limits of the papal potesta absoluta, he did not break with them regarding the general principle that papal power was in fact limited. For Hostiensis, the concept of plenitudo potestatis did not entail or imply unbridled or arbitrary power. To be sure, as Innocent had argued in his decretal Proposuit, Hostiensis believed that the pope’s potesta absoluta allowed him to act supra ius with respect to positive law simply on the basis of his will. But even Hostiensis accepted that the pope could only act above natural or divine law “with cause” (i.e. a valid reason). And like other jurists of the era, Hostiensis also believed that, although not bound by the law, the pope should nevertheless subject himself to it, except on rare occasions.
In Quanto personam, related decretals and their glosses, Innocent and the canonists made a number of important contributions to the idea of supreme authority. The pope established that the papal office was the sole locus of supreme authority within the Church and that, as vicar of Christ, the pope alone exercised what he called “divine power” on earth. Building on this, the canonists began reimagining the legal character of papal authority, first by locating the source of canon law in the will of the pope and then by loosing the pope from almost all of the constraints of positive, natural and divine law (at least in certain circumstances). In the process, they developed and refined a number of concepts – pro ratione voluntas; plenitudo potestatis; potesta absoluta – that were to find their way into the thought of Bodin and other early modern theorists of sovereignty.
1. Watt, The Theory of Papal Monarchy, 76, 79-80, 85. Benson, “Plenitudo potestatis,” p. 217.
2. Pennington, The Prince and the Law, p. 46.
3. Pennington, The Prince and the Law, p. 51.
5. Watt, “The Term ‘Plenitudo Potestatis’ in Hostiensis,” p. 167.
8. Pennington, The Prince and the Law, 66.
9. Pennington, The Prince and the Law, 67.
10. Pennington, Prince, 56.
11. Pennington, Prince, 64.
Dr. Andrew A Latham is a Professor at Macalester College and a recipient of a 2017 National Endowment for the Humanities research grant in support of a book project entitled “A History of Sovereignty: 1075-1576.” .