1 Introduction
Since the emergence of what has come to be called ‘corporation theory’ at the hands of medieval civilians and canonists, a distinction between a corporation (universitas) and an association, or partnership (societas), has become entrenched in both political theory and modern legal systems. A corporation is, by a fiction of law, its own legal person, conceptually distinct from its members. A partnership, on the other hand, is merely a contractual relationship between natural persons; it is not a legal person in its own right. Nevertheless, in the introduction to his translation of selections from Otto von Gierke’s Das deutsche Genossenschaftsrecht, F.W. Maitland claims that, by the time we reach the highpoint of ‘systems of Natural Law’ in the eighteenth century, the distinction between the two types of legal groups became blurred. According to Maitland, the universitas, which medieval jurists did not necessarily conceive of as founded on a contractual relationship, came to be understood as one. This, Maitland believed, resulted in a loss of mystique for the concept, a process he describes as the universitas being “lowered to the rank of societas.” However, as a result of what he calls “the same process,” these natural law jurists admitted that the societas could have its own personality, with the result that it “was raised to the rank of the universitas.” My aim in this paper is to argue that even if civil legal systems today still distinguish between a corporation and a partnership, this phenomenon observed by Maitland is a sign of an important evolution the civil law undertook in the early modern period: that a general theory of the nature of a group as a kind of societas was introduced into civil law, that this general theory enabled such a group to assume on some occasions the character of a person, and that this group-person could then, in turn, be registered in the law.
In his introduction, Maitland attributes the impetus for this move to an earlier recognition on the part of both political theorists and jurists that one particular form of association, the state, sits awkwardly between these two categories. Pointing to the use of this term societas (or its French, Italian, English, and German cognates) in a wide range of medieval and early modern works of political theory, Maitland asks why political theory “borrowed the contract of partnership rather than the apparently far more appropriate act of incorporation.” His answer is that the ‘classical’ doctrine of corporations, which Maitland associates with the jurist-pope Innocent iv (1195–1254), understood a corporation to be “a merely fictitious personality, created by the State and shut up within the limits of Private Law,” and for which reason “was not what the philosopher wanted when he went about to construct the State itself.” The difficulty inherent in the idea of the corporation as developed by medieval canonists and civilians, in other words, is that the status of an entity as a universitas ultimately depends on an act of concession from a higher authority, which poses a problem for understanding the nature of the entity that is supposed to be that higher authority. Maitland’s discussion alludes to Gierke’s treatment of this very problem, where he likens some medieval accounts of state formation rooted in a contract to “the self-constitution of a corporation.” For Gierke, this move was incoherent; he could not find in his sources a legal concept explaining how a contract of partnership could somehow produce a corporation.
The alleged incoherence to which Gierke refers is a consequence of his belief that a corporation can only come into being through an act of concession. But his account of the medieval corporation as purely a product of concession has been disputed by other scholars. In so doing, they have suggested that a self-constituting corporation does not pose the kind of conceptual problem Gierke believes it does. The solution they propose relies on the notoriously difficult – especially with respect to the medieval Glossators and Commentators – concept of the ius gentium, or the common law of all peoples. One such critic of Gierke, Joseph Canning, cites Baldus’ commentary on Digest 1.1.9 to make this point. Baldus admits that a collegium of artisans or scholars is an artificial creation, and therefore a product of concession from a higher authority. But, as Canning reads Baldus, the entity he calls the populus, and which he identifies with the city-states of medieval Italy whose de facto independence from the Holy Roman Empire he, like his teacher Bartolus, defended, is most certainly not. Not only is the populus’ existence a product of the ius gentium, Baldus claims, but also its inherent capacity to govern itself as a corporate entity: “peoples (populi) are from the ius gentium, and therefore the government of peoples is from the ius gentium […] by virtue of the fact that a people’s (populus) existence necessarily presumes that it has a government, just as every animal is governed by its own spirit and mind.”
On this point Canning is joined by Antony Black, who cites the example of the Neapolitan canonist Niccolò Tedeschi, otherwise known as Panormitanus. In his commentary on the fourth and fifth books of Gratian’s Decretum, Tedeschi endorses the view that “all colleges are illicit,” “except those approved by the ius gentium, or by positive law.” This time with reference to Digest 1.1.5, he claims that those corporate entities sanctioned by the ius gentium are “the college of the civitas, camps (castri), as well as cities (villes),” because “since many men must act for the support and utility of the civitas, it is necessary that many come together at the same time.” Among those congregations approved by positive law are various different colleges “of various artisans […] and professions,” such as “scholars.” With this evidence from Tedeschi, as well as other jurists, Black concludes that Gierke’s account of incorporation as solely the product of concession is wrong; the ius gentium alternative remains.
These criticisms of Gierke provide much needed nuance to his claims about the character of the canonist and civilian corporation, as they suggest that some bodies could claim corporate status without necessarily having a charter from the higher authority. But this does not mean that this alleged ius gentium right to corporate status does not itself ultimately derive from concession. For even though Canning gives us good reason to think that Baldus believed the populi mentioned in D 1.1.9 correspond to a naturalistic, Aristotelian political community, and not an artificial creation of a higher authority, it does not necessarily follow that any legal status for this entity derives from something intrinsic to it. Indeed, the dominant view on the juridical status of kingdoms and cities among jurists up until at least the fifteenth century was similar to that originally held by Accursius in the gloss: that the ‘peoples’ of D 1.1.9 were all subjects of the emperor and that any rights which they may have to govern themselves therefore depended on the emperor’s concession. Moreover, the distinctive identity of these ‘peoples’ would often be traced back by jurists to the demarcation of Roman provinces. ‘Peoples’ were therefore not thought of as self-constituting entities, but instead as the creatures of the Roman Empire, with the result that any ability to bear collective rights and obligations follows ultimately from an act of concession. We should bear this in mind when we interpret Baldus’ comments, considering that he, while certainly attached to the idea that a people’s de facto exercise of sovereignty was legitimate, also held that ultimate authority nevertheless still remained de iure in the hands of the emperor.
As a result, this supposed ius gentium theory of corporate personality does not fully account for the phenomenon of fully self-constituting group persons observed by Gierke and Maitland in the work of early modern natural lawyers. But, as I will argue below, this phenomenon can be explained once we register the significance of the integration of a particular social ontology, derived from Cicero, into the interpretation of the civil law. This Ciceronian social ontology began to appear in the sixteenth century, when it was incorporated into civil law commentaries by a group of French Renaissance jurists affiliated with the University of Bourges, especially François Connan (1508–1551) and Hugo Donellus (1527–1591), as part of their effort to systematize Roman law in a way compatible with nature. In the first section of the paper, I will reconstruct this social ontology as it is elaborated by Connan and Donellus. For these jurists, I will argue, human nature leads people into a number of associations bound by mutual obligations and in pursuit of mutual benefit, with the state, or civitas, being one such association. A combination of factors, in other words, contribute to the natural formation of various associations that assume the shape of societas. In sections two and three, I will demonstrate that they also endorse a Ciceronian theory of personality that enables these associations to assume the character of persons. Finally, in the fourth and final section, I will provide evidence suggesting that this Ciceronian social theory served as the foundation in nature upon which at least one early modern natural law system was constructed. The debt of natural law thinking to Roman law and medieval Romanist jurisprudence has recently come under re-examination; my concluding discussion will suggest that the Renaissance re-orientation of Roman law scholarship around this set of beliefs about the nature of human sociability, taken from Cicero, was a key event that would go on to provide the organizing structure for early natural law reasoning.
2 Self-Constituting Communities
It is well-known that by the end of the fifteenth century, the texts of Roman law had begun to evolve from being treated as the law of a universal Roman Empire, and its continuation in the form of the Holy Roman Empire, to a source of universally applicable legal political concepts. As a consequence of this process, several fragments of the Corpus iuris civilis acquired a particularly prominent position in elaborating a set of universal legal norms. Among the most important of these fragments was Digest 1.1.5, or lex Ex hoc iure. In this fragment, Hermogenianus enumerates the institutions which he claims are the products of the ius gentium, a list that includes wars, nations (gentes), kingdoms, property rights, and various obligations. As we have seen, this passage, alongside Digest 1.1.9, is cited by proponents of the idea that the ius gentium enables the self-constitution of corporate entities; an idea which, once properly contextualized, appears not as opposed to the concession theory of corporate personality as some have taken it to be. There were, however, a small group of late thirteenth and early fourteenth century jurists from the kingdom of Naples who employed this passage to support their claims for the independence of that kingdom from the emperor, on the grounds that ius gentium institutions embody a kind of natural state of things that had been undermined by Roman imperialism. Their accounts offer no elaboration, however, on how these natural kingdoms are established and why the ius gentium sanctions their autonomy. I will argue in this section that the later Bourges jurists were able to offer such an account by employing the Ciceronian idea that there is a certain form of naturally occurring social life that resembles a societas, or partnership, and that many different groups follow this model, from the family (in some instances) to the state.
The Bourges jurists likewise develop their accounts of the ius gentium as a body of universal legal norms in the early chapters of their commentaries on the Corpus iuris civilis. They do so, also like their Commentator predecessors, by defining the relationship between ius gentium and natural law. Connan does this by deploying a highly developed account of the state of the nature, and the transition from it to a state of society. Natural law, he argues, is the law that obtains within this state of nature: “the first men, simple and rustic,” he says, “lacking desire and competition, and not seeking for themselves the protection of relatives and neighbors, but dispersed in mountains and forests, seem to have used natural law.” Natural law, then, is not suitable for life in society, limited “to solitary man, living life in the field with a wife and children.” Similarly, the jurist Hugo Donellus explains that the natural law applies to human beings outside society, regulating merely “the joining of a man and woman for the purposes of procreation, the procreation and education of children, defense, and liberty.”
The ius gentium, on the other hand, is law created specifically for social life. Both authors argue that the impetus to transition into social life comes through the application of an innate natural reason. It is through natural reason, Connan argues, that human beings, “dispersed in mountains and forests,” come to know natural law, and it is on account of this same natural reason that they decide to leave it. “But since [a man] is led by nature to associations (societates) and unions (coetus) of men,” he says, “he gradually moved outwards, first to an association (societas) with kin, then to one with extended family, then to friends, later to neighbors, and finally, through commerce, to an association that encompasses the whole of humanity.” Connan attributes the cause of this outward movement to an aspiration to “live a more commodious life,” with the resulting implication that these societates and coetus assume a particular form: they are defined by “the exchange of duties and commercial matters.” Led by natural reason, in other words, individual human beings enter into different groups, beginning with the closest – the family – and extending outwards to eventually encompass the whole world, in which they pursue mutual benefit and are bound by a sense of mutual obligation. The content of the ius gentium, he eventually concludes, are the obligations and institutions necessary to maintain these groups: the law “which all men use who […] are joined into association (societas).”
Later on in the chapter, Connan makes this same point again, but this time far more abstractly. He refers to the beginning of a just “golden age,” which he claims began with the intervention of a lawgiver. This lawgiver, he says, “brought together men dispersed in fields and joined them […] he transformed them from wild and unruly beings, into peaceful (mites) and tame (mansuetos), with the result that now they administer all things more through the judgement of the mind (animus) than through physical strength.” Moreover, they now “have a method in all things concerning divine religion, human duties, and impartial justice,” which enables them to “give and receive benefits from one to the other, taking nothing from another’s due, only each person thinking one and the same thing, namely the utility of the whole.” On the surface, there is some tension between this mythological account and the historical one given earlier, but what they share in common, and what is really the point Connan wishes to emphasize, is the centrality of mutual obligation to a beneficial social life, and that the source of these obligations lies in natural reason. Social life – or at least those forms of social life in which justice is a concern – whether it is natural, or whether it is instituted through the intervention of a lawgiver, assumes this particular form, and this applies across the spectrum of groups, from the family to the state.
In addition to illustrating the same point about the nature of a certain kind of natural social body and how this serves as the foundation of law, both arguments Connan employs to make it draw explicitly from Cicero. The fable of the lawgiver is cited almost word-for-word from the introductory chapters of Cicero’s rhetorical treatise De inventione, a text that, while widely read by rhetoricians and humanists since at least the twelfth century, had only recently begun to appear in the work of jurists. Connan’s other, more historical argument, comes from Book 1 of Cicero’s De officiis. There Cicero claims that natural reason incentivizes human beings to enter into social relations by making them aware of the benefits they bring. “As the Stoics believe,” he says, “everything produced on earth is created for the use of mankind, and men are born for the sake of men, so that they may be able to assist one another.” “Consequently,” each person should “follow nature as [their] leader” and “contribute to the common stock things that benefit everyone together.” These relationships are preserved, he says, “by the exchange of dutiful services,” and “by giving and receiving expertise and effort and means.” He then proceeds to attribute the emergence and growth of human social life to the unfolding of this particular natural inclination toward collaboration and cooperation, an account which Connan likewise cites nearly verbatim:
There are indeed several degrees of fellowship (societas) among men […] the first fellowship (societas) exists within marriage itself, and the next with one’s children. Then, there is the one house in which everything is shared. Indeed, that is the seed-bed, as it were, of a political community (res publica). Next there follow bonds between brothers, and then between first cousins and second cousins, who cannot be contained in one house and go to other houses, as if to colonies. Finally, there follow marriages and those connection of marriage from which even more relations arise. In such propagation and increase, political communities have their origin.
Albeit with fewer explicit references to Cicero, Donellus also employs a similar account of the nature and origins of social relations that become the object of law. He begins by going back to “the beginnings of the world,” during which a small population emerging from “the first two men” lived in relative abundance, and there was no “injury”; an idea not that different from Connan’s “golden age.” As the population increased over time, however, scarcity became a problem. Applying “right reason” (recta ratio), they recognized that this “scarcity of things necessary for life” would generate multiple problems, and so, in response, they developed a principle of private property to prevent this from happening: whatever a person “cultivated or procured by their labor” became theirs, and theirs alone, by right.
With this institution of property – which Donellus calls the “first law (lex) among human beings” – what had previously been a dispersed group of individuals now came to constitute one body, bound by mutual obligation to respect each other’s property rights. This larger body would eventually be called the state. But the nature of the law that established this body also generated an explosive growth in forms of social interaction that assumed the same shape. For now with distinct properties, they also now ran the risk of “indigence,” and, to avoid this, trading relationships (commutationes), which “we call exchanges (commercia) and contracts (contractus)” were established. Like the larger community, the individual participants within these smaller relationships were also perceived to be bound by mutual obligation. Indeed, it was with a view toward preserving these obligations that the members of the larger community later agreed to bind themselves to follow a number of other laws: “buying, selling, tenancy, hiring, partnership, commission, trust, loans, and others of that sort.”
Donellus’ account clearly varies in many ways from that of Connan, but it nevertheless still shares many of the same characteristics. Above all, it describes the natural origin and existence of a certain form of social relationship, of which the political community is the most prominent example, that follows the same Ciceronian model of societas, in which natural reason leads individuals into groups instituted for mutual benefit and whose members are bound by mutual obligation.
3 The Personality of Associations
That Connan and Donellus draw on Cicero to elaborate their social theory is important for another reason: for the works of Cicero also contain an account for how a group can assume the character of a person. In this section and the next, I will turn to this account, first to explain it, and then to demonstrate that it proved integral to Connan and Donellus’ jurisprudence. It is by exploiting this account of group personality that these jurists could attribute the standing of distinct persons to the societates that human nature leads people to form.
Across the vast body of his work inherited from the post-classical world, Cicero describes a number of phenomena, ranging from groups to abstract concepts, as personae capable of being represented. Persona was the term given to masks worn by actors in the Roman theater; and for an actor to assume a persona is for them to take on the recognized social role of a character by embodying its distinctive animating traits, or, as we might say, its personality. Crucial to this act of representation is that the audience recognizes the embodied actions and agrees that they can be attributed to the person (or object) the actor seeks to portray. Once an actor convincingly embodies these characteristics, then it is as if that character, previously absent, acts in the world as if it were a natural person. On this account, then, even an abstract idea can assume the role of a person, so long as its definitive characteristics are broadly recognized and someone is able to embody them accurately.
By far the most famous example in Cicero’s work of a non-human being with a persona capable of representation by an actor is the civitas, or state. Although this idea appears in a number of his works, it is in the De officiis that this idea receives its most detailed elaboration. In a passage from Book 1, Cicero argues that a magistrate must understand that it is his responsibility to “realize that he assumes the role of the civitas.” To do this, the passage continues, the magistrate “ought to sustain its standing and its seemliness, to preserve the laws, to administer justice, and to be mindful of things that have been entrusted to his good faith.” If assuming the persona of the civitas means acting to enforce the laws and to administer justice, then this must be because the laws are recognized by others as being constitutive of the civitas itself.
This interpretation derives support from Cicero’s famous definition of the civitas as the “councils and assemblies of men associated through law (concilia coetusque hominum iure sociati),” found in Book 6 of his De re publica, and preserved for the medieval and early modern world in Macrobius’ Somnium scipionis. But it also derives support from an immensely important description of the civitas he gives in his oration Pro Cluentio:
For the law is the bond (vinculum) which secures these our privileges in the commonwealth (res publica), the foundation of our liberty, the fountain-head of justice. Within the law are reposed the mind (mens) and heart (animus), the judgement and conviction, of the state (civitas). The state (civitas) without law would be like the human body without mind (mens) – unable to employ the parts which are to it as sinews, blood and limbs. The magistrates would administer the law, the jurors who interpret it – all of us in short – obey the law to the end that we may be free.
The civitas, on this account, is a kind of body composed of different members united together by their obedience to this law, which he analogizes to a chain (vinculum) without which the civitas “cannot endure.” Held together by mutual obligations between the different parts, this description conforms to Cicero’s earlier inclusion of the civitas under the genus concept of societas we have seen he believes human nature leads people to establish.
Yet in this depiction of the societas of the civitas, we also see that these mutual obligations expressed in law do far more than hold the body together; they are also what give it motion. The law is the body’s animating spirit (animus) and mind (mens), its judgement and its wisdom, without which “the civitas cannot use its parts.” This claim – that the law both unites and moves the different parts of the body – recalls a way of thinking about personality ultimately indebted to Stoicism, according to which the source of a person’s unique personality is their “spirit” or “soul,” since this is what unites their different parts and enables them to act with one singular purpose. As the thing which unites and directs the civitas’ different parts, the law can therefore be said to be the source of its distinctive personality; and when this law is declared and enforced through the actions of an actor (or magistrate), that magistrate may be said to have assumed its persona, and the civitas brought to life. Indeed, Cicero makes just this claim in Book 3 of De legibus, where he states that “a magistrate is a law that speaks, and a law is a silent magistrate,” as if to say that the law is the persona of the civitas that needs to be worn by an actor, and that ‘magistrate’ is the name of the actor whose actions are recognized by others as compatible with those of the civitas itself. For what the citizens of the civitas recognize when they see a magistrate follow the law and distribute justice equitably, are the unique set of mutual obligations that united them into the societas of the civitas, and, by extension, the group of contracted individuals who make up the body of the civitas itself.
4 Associations as Legal Persons
We are now just beginning to acknowledge the immense reach of this Ciceronian idea of the civitas in the history of medieval and early modern political thought. But a feature of its reception that has now become apparent is how particularly widespread it was among Renaissance humanist authors. Cicero’s definition of the civitas as a societas, and that this societas was held to possess its own persona, was very much at the heart of quattrocento humanist political thought. The ubiquity of Cicero’s definition of the civitas among Renaissance humanists, and their nearly unanimous use of it, stands in contrast with medieval jurists, in whose work featured a number of rival, and very different, definitions. By the time of Connan and Donellus, however, this language started to become more prominent in jurisprudence, as well. And we can see them employ it in their work to explain how the societates nature both enables and inclines human beings to form, can also be themselves distinct persons.
A clear example of this can be seen in Connan and Donellus’ treatment of the further development of ius gentium institutions. As we have already seen, both argue that the first laws that come to be regarded as part of the ius gentium have as their aim the preservation of human life in societas. These laws, designed to ensure that the obligations incurred in other social relations are followed, are themselves the obligations by which a group of individuals are united into the societas that both Connan and Donellus identify with the state. Following Hermogenianus’ list of these institutions in D 1.1.5, both Connan and Donellus then proceed to explain the founding of kingdoms, or states, and the origin of the laws of war, and in that order. A consequence of this chronology – and one to which they both draw attention – is that it explains how states themselves can be subjects of the laws of war. This process thus also offers us a chance to observe how a group comes to acquire, without concession from a higher authority, the status of a distinctive person, and for that personality to be integrated into law.
Both Connan and Donellus portray the impetus for the founding of kingdoms in similar terms. For Connan, after a period of time in which the laws intended to maintain social relations were largely observed, it came about that increasing material wealth (possibly a product of people living harmoniously) led to “luxury,” and an eventual transformation of the moral landscape in such a way as to place a premium on having more than others. The consequence of this was a dramatic de-stabilization of society. “Having moved away from the road of nature,” he says, many now began to think that “nothing is worthier of esteem than excelling in wealth and power.” Yet this decay lay on a spectrum, and luxury had not corrupted the group to such an extent that it was incapable of re-organizing itself. In response to this turmoil, the members of this jural community “created kings,” who ensured that the poor “would not be oppressed by those who had more.” They instituted political authority, in other words, to guarantee that everybody, rich or poor, satisfied the obligations that bind them into a distinctive community, so as to preserve that community.
Donellus makes a similar argument. Over time, it became apparent that a self-regulating people could not preserve itself intact. On account of “a natural proclivity towards disagreement,” “government according to the varied judgements of men” would “forcibly separate” the group in conflicting directions. As a result, the group reasoned that they would be “better protected,” “better off,” and “more certain” with government concentrated in a king.
From their accounts of the historical development of these institutions, it is clear that for both authors political authority is an institution adopted because it was considered necessary to preserve this larger societas, and by extension the various societates organized within it. When we turn to other sections in their commentaries, we can see that they also conceptualized this political authority on Ciceronian terms as a representative of the state itself. In a chapter addressing the meaning of law, Connan praises the law as a source “of great benefit in human affairs,” for which he cites the aforementioned passage from Pro Cluentio as evidence. Included in the citation, after “we obey the law so that we may be free,” are the following words, which are absent from the Pro Cluentio, but which Connan nevertheless attributes to the work: “for [the laws] having been suppressed or neglected, there will be nothing that someone can claim to be their own, nothing certain to have, and nothing he can hope to leave to his children.” It is this concern to ensure the durability of the civitas in light of evolving conditions that structures his later comments on the role of the magistrate. Magistrates were created, he says, because “a law that speaks generally, neither can clearly comprehend all things in their specificity, nor bring equity to all things,” and, as a result, “a moderator and administrator of the law was established, who would interpret the law according to his prudence, and adapt it to similar matters.” It is for this reason – the need to give a dynamic and living quality to the otherwise abstract law – that “Cicero, in De legibus, calls the magistrate speaking law, and the law a mute magistrate,” and that “Martianus says that the praetor’s edict (ius hoc honorarium) is, as it were, the living voice of civil law.” We may say, then, that Connan envisages the magistrate and the civitas itself to be in a mutually dependent relationship. The recognized role of the magistrate presumes the existence of the civitas, to whose laws he gives voice, while the existence of the civitas is itself dependent on the magistrate, whose ability to adapt to changing circumstances is necessary to maintain it. The two are, in other words, mutually constitutive.
Donellus adapts the same idea in his commentary. After enumerating a number of areas in which the public must care for its citizens, including looking after the needy and the elderly, Donellus proceeds to argue that “if the civitas itself could provide and administer these things on its own, then we would not need to proceed further.” However, he says, “the person who can bear these matters is not the persona of the civitas.” “The aid of another person is necessary,” who, among other things, will “guard the public peace, keep citizens in their duties, punish wrong doing, and restore rights to the citizens.” On the other hand, without these other people acting as “defenders and administrators of the republic,” there will be “no well-being (salus) and safety (incolumitas) of the citizens,” and, as a result, “no republic.” There is, then, a persona civitatis, which Donellus identifies with the laws that bind its members into a distinct group; but it is a persona in the sense of being merely a mask, unable to act on its own, and thus unable truly to be present. But when “the care” of this person “has been entrusted” to one or two magistrates, and institutions established to act on its behalf, then those laws can truly be made present, and the civitas can have an existence in the world as an entity in its own right.
As they proceed with their historical account of the ius gentium, it becomes apparent that both Connan and Donellus treat this act of finding someone to speak on behalf of the civitas as enabling, in turn, the attribution of distinctive rights and obligations under the ius gentium to the civitates these magistrates represent. Indeed, the next ius gentium institution they address after the founding of kingdoms is the law of war, which both jurists stress came after the creation of magistrates. The laws of war emerged, according to Donellus, so that “states and kingdoms themselves could be maintained.” This, in turn, meant “repelling enemies” and “justly reclaiming things from them.” For Connan, it means ensuring that the “whole body of their subjects would not be oppressed by enemies.” The implication, then, is the magistrate is under obligation to protect citizens from these external enemies, and, concerned as it is with preserving justice internally and therefore keeping the state alive, that this follows from their role as representative of the state they had previously assumed. With the emergence of a new body of law that specifically regulates the relations between states, it appears that, after the elevation of magistrates, a state is no longer merely a body of mutually obligated citizens, but now an entity capable itself of bearing its own rights and obligations.
Taking from Cicero both an account of the nature of social bodies and an account of how non-human entities can be considered persons, we have seen how Connan and Donellus have developed an explanation for how the state came to be recognized as a person in its own right, capable of bearing its own rights and obligations under the ius gentium. I would like to conclude this section with an example (in this case, from Connan) that shows how this same mechanism explaining how associations can become legal persons is also at work with social bodies other than states.
The example appears in Connan’s discussion of the ability of states, colleges and other bodies to establish their own customs. It is no wonder, he says, that colleges can have laws of their own, when “the laws of a single family (gentis) or agnatic line can be their own, such as, for example, when children are heirs to a greater or less extent than the law of the state commands.” “For this does not bring harm to the other citizens, but is a certain family right, proper to members of the agnatic line.” Indeed, it is this way “among our noble families” in France, “who have established their own right of succession.” Suggestive here is the analogy between, on the one hand, a college and a state, and, on the other, a family. For it implies that, despite not having a legal personality, unlike a college or a state, a family is nevertheless still understood to possess the characteristics of one. What appears to make this analogy possible is that all these bodies share certain fundamental characteristics, namely that they are gatherings of individuals held to be bound by principles of mutual obligation, and that they are organized collectively in some way in order to maintain themselves united. This aspect becomes especially clear when we consider Connan’s claim that these entities – colleges, states, and families – each possess a right to punish, which he explains is an implication of these entities’ fundamental characteristics as a group bound by mutual obligation. Of course, he clarifies, the extent to which these bodies, especially subsidiary bodies such as colleges, can punish is “ambiguous.” It is true that some penalties, while appropriate for states, are not appropriate for colleges. Yet it is nevertheless also true that they must be allowed to enact their own punishments, since “no law is sufficiently protected from wicked people, if a means of punishment is lacking,” and that these internal practices indeed deserve the name of “law.”
Based on these comments, it seems that, for Connan, some associations eventually develop to a point where they choose to enact collective structures for their long-term preservation. This happened with the state, but he suggests that it also takes place within other bodies such as families. And, as with the state, he appears to think that a consequence of this formal institutionalization is that these other groups, also initially abstract, will likewise have assumed a distinctive group presence, and therefore the character of a person.
5 Conclusion: Renaissance Jurisprudence and Early Modern Natural Law
I would like to conclude with evidence that this social theory of groups and group-persons, ultimately derived from Cicero and made integral to Roman law scholarship in the work of jurists such as Connan and Donellus, would become the foundation for at least one highly influential early modern natural law theory. My example here is Johannes Althusius’ Politica (1604, 1610, and 1614) and his Dicaelogicae libri tres: totum et universum ius (1618), texts with broad ambitions to construct a universal theory of politics and jurisprudence, respectively, but which, unlike many of the other most celebrated contributions to the genre of natural law, are heavily focused on the internal government of states. In each work Althusius argues that the subject of both politics and law is “association,” what he calls consociatio. He opens the Politica this way: “Politics is the art of associating (consociandi) men for the purpose of establishing, cultivating, and conserving social life among them […] The subject matter of politics is therefore association (consociatio), in which the symbiotes pledge themselves each to the other, by explicit or tacit agreement, to mutual communication of whatever is useful and necessary for the harmonious exercise of social life (vitae socialis).” There are a number of different types of association that follow this model, ranging from the family, to the private association (collegium), to the civitas, to “provinces,” to, finally, the “universal and major public association” which he sometimes calls the regnum and, other times, the res publica. Families and private associations are societates composed of natural persons, while public associations, such as the civitas and the res publica or regnum, are constituted, in the case of the former, by a societas between families and collegia, and, in the case of the latter, of “families, cities (civitates) and provinces,” which “existed by nature prior to [commonwealths], and gave birth to them.” They are constituted, in other words, by smaller societates that are capable of associating in the manner of individual natural persons. As he says with respect to the civitas: “the members of a community are private and diverse associations of families and college, not the individual members of private associations.”
Althusius then proceeds with an argument for why human beings are creatures prone to live in societates. In what appears to be a reference to Cicero’s De inventione, he states that “the needs of body and soul, and the seeds of virtue implanted in our soul, drew dispersed men together into one place.” “These causes,” he continued, “have built villages, established cities, founded academic institutions, and united by civil unity and society a diversity of farmers, craftsmen, laborers, builders, soldiers, merchants, learned and unlearned men and so many members of the same body […] called the commonwealth.” With a direct quotation from Cicero’s De legibus, Althusius later tells us that these “seeds of virtue” are in fact knowledge of the laws that permeate a highly juridical image of the world: “Common law has been naturally implanted by God in all men […] ‘For there was reason derived from the nature of the universe,’ Cicero says, ‘urging men to do right and recalling them from wrong-doing, and this reason did not first become law at the time it was written down, but at its origin’.” For Althusius, then, much like Connan and Donellus, human beings enter into organized societies due to a desire to improve their material conditions, and these societies are bound by the perception of mutual obligations, the content of which is derived from natural reason. These two attributes – mutual obligation and mutual benefit – are the two poles upon which every societas stands: “this mutual communication, or common enterprise,” he says, “involves (1) things, (2) services, and (3) common rights (iura) by which the numerous and various needs of each and every symbiote are supplied, the self-sufficiency and mutuality of life and human society is achieved, and social life is established and conserved.” For this reason, he continues, “Cicero said, ‘a political community is a gathering of men associated by a consensus as to the right and a sharing of what is useful’.” While Cicero in this passage refers to the res publica, Althusius is here talking about all forms of association, public and private, since they all follow this same model.
It is precisely because these associations are held together by mutual obligation, or law, Althusius continues, that “in every association and types of symbiosis some persons are rulers (heads, overseers, prefects) or superiors, others are subjects or inferiors.” For, “nothing, as Cicero affirms, ‘is suited to the natural law and its requirements as imperium, without which neither household nor city nor nation nor the entire race of men can endure’.” In the family, this role of “director and governor of common affairs pertaining to this association is the husband,” while in the college, the city, and the res publica, it belongs to a duly appointed rector. It is the same power in all associations, although only in the res publica is it called “sovereignty” (maiestas). This position of associational head is, according to Althusius, immensely important; without it, the body of the association will fall apart. In a passage replete with what we have seen to be this Ciceronian language of group personality, he says with respect to the res publica that this figure is the “the bond (vinculum), soul (anima), and vital spirit (vitalis spiritus) of the commonwealth,” without which – emphasizing once again that the head’s role is to enforce the mutual obligations that bind the association – it either “becomes a band of robbers and a gang of evil men,” “or disintegrates” into its consistent parts. Without the head, there is no justice, and therefore no association.
Finally, and crucially, all of these aspects of a consociatio – a group of individuals bound by agreement to mutual obligations for mutually beneficial ends, and made durable through subjection to a head tasked with enforcing those obligations in order to realize those ends – come together to make each association its own person. Althusius makes this claim in the Politica, but it is put especially clearly in the Dicaelogicae. In a chapter that considers the juridical status of “men naturally conjoined,” Althusius makes a distinction between “two different genres of association, one by nature and by the will of men.” But regardless of whether they are joined by nature or artifice, both types of association share the same characteristics; what it is at issue in the distinction is the end a particular association pursues and the circumstances that led to its origin, not its fundamental form. What defines these associations – variously known as a “societas,” “union,” “consociatio,” and “body of many men” – is “order, agreement of minds, sharing of counsel and mutual assistance, and a sharing of mutual advantage.” Entailed in this idea of “order” is that “the actions of the conjoined men, are accommodated and directed according to their condition and agreement.” Once suitably ordered, and maintained by subjection, this entity can then be considered its own person, “because a union, not of singular men in and of themselves, but a whole, a durable (constans) body consisting of multiple people […] assumes the role of one person, or is held in the place of one.” Put otherwise, once organized under a rector who enforces obligations and secures benefits, an association acquires an a stability and permanence it may otherwise lack, with the result that we can now begin to attribute actions to it, in turn enabling us to think of it, and to treat it in law, as one person.
Althusius is traditionally not considered to fall under the same category of jurist as Connan and Donellus, even if he sometimes cites them. His use of the theory is thus good evidence for its spread and the broader transformation its introduction into civil law interpretation enabled: a transformation that helped usher in the period of natural jurisprudence and giving shape to the various early modern associations, public and private, recognized and regulated by it. While, of course, partly a product of an already emerging tendency to see the Corpus iuris civilis as a source for universal legal concepts, we should therefore also view the incorporation of this Ciceronian social theory into legal interpretation as an enabler of Roman law’s transformation into a key source of a universal, natural, law.
Acknowledgement
This work has received funding from the European Research Council (Erc) under the European Union’s Horizon 2020 research and innovation program (grant agreement No. 864309).
Footnotes
The literature on this is vast. See, for example, Pierre Michaud-Quantin, Universitas: Expressions du Mouvement Communitaire dans le Moyen-Age Latin (Paris: J. Vrin, 1970), 64–69; Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town: Juta & Co., 1996), 455; and Ralf Mehr, Societas und Universitas: Römischrechtliche Institute im Unternehmensgesellchaftsrecht vor 1800 (Köln: Böhlau Verlag, 2008). The status of a universitas as a separate legal person was a matter of debate for centuries.
Otto Gierke, Political Theories of the Middle Age, trans. Frederic William Maitland (Boston: Beacon Press, 1959), xxiii–xxiv.
A notable exception is Scotland, where partnerships are considered distinct persons.
Gierke, Political Theories of the Middle Age, xxiii. Innocent’s doctrinal innovations were originally devised for religious institutions such as monasteries, but they were soon adopted by the civilian Commentators and applied to other, non-ecclesiastical, bodies.
Gierke, Political Theories of the Middle Age, 89.
J.P. Canning, “The Corporation in the Political Thought of the Italian Jurists of the Thirteenth and Fourteenth Centuries,” History of Political Thought 1 (1980), 22. The original Latin, translated by me from Canning’s citation: “Populi sunt de iure gentium ergo regimen populi est de iure gentium […] Eo ipso quod populus habet esse habet per consequens regimen in suo esse, sicut omne animal regitur a suo spiritu proprio et anima.” Canning’s account of a ius gentium personality for “peoples” has been influential: see Kajo Kubala, “Hobbes, ius gentium, and the corporation,” History of European Ideas 49.6 (2023): 942–958.
Antony Black, Guilds and Civil Society in European Political Thought from the Twelfth Century to the Present (Ithaca,
“[…] homines non debent facere ista conventicula, seu congregationes, cum ex eis timeat conspiratio […] nisi approbent a iure gentium, vel a iure positivo,” Niccolò Tedeschi, Commentaria primae partis in primum Decretalium librum, vol. 7 (Venice, 1591), 185v.
“A iure gentium approbant collegium civitatis, castri, vel ville […] nam debent homines multa agere in favorem et commodum civitatis, ideo oportet quod plures insimul conveniant,” Tedeschi, Commentaria primae partis, vol. 7, 185v.
“A iure positivo approbantur collegia ipsoum, quae sunt alicuius artis […] vel alicuius professiones, ut sunt scholares,” Tedeschi, Commentaria primae partis, vol. 7, 185v.
Black, Guilds and Civil Society, 19–21.
For Canning’s argument on Baldus’ alleged Aristotelian naturalism, see Canning, “Political Thought of the Italian Jurists,” 20.
Magnus Ryan, “Political Thought,” in Cambridge Companion to Roman Law, ed. David Johnston (Cambridge: Cambridge University Press, 2015), 439–440. For further examples, see Dante Fedele, The Medieval Foundations of International Law: Baldus de Ubaldis (1327–1400), Doctrine, and Practice of the Ius Gentium (Leiden: Brill, 2021), ch. 2.
Magnus Ryan, “Historicity and Universality in Roman Law before 1600,” in Time, History, and Political Thought, ed. John Robertson (Cambridge: Cambridge University Press, 2023), 54–66.
For the methods and aims of these jurists, see Peter Stein, Roman Law and European History (Cambridge: Cambridge University Press, 2004), 76–82 and James Gordley, The Jurists: A Critical History (Oxford: Oxford University Press, 2013), ch. 4. For their use of Cicero in pursuit of these aims, see Jean-Louis Thireau, “Ciceron et le droit naturel au xvie siècle,” Revue d’histoire des Facultés de droit et de la science juridique, 4 (1987), 55–85; Gaëlle Demelemestre, “La systématization du droit et la théorie du ius gentium comme droit du genre humain chez François Connan,” Revue historique de droit français et étranger, 94 (2016), 413–438; and Jeffrey Dymond, “Ciceronian Jurisprudence and the Law of Nations,” The Historical Journal 67 (2024): 1–20.
For example, Benjamin Straumman, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law (Cambridge: Cambridge University Press, 2015) and Daniel Lee, Popular Sovereignty in Early Modern Constitutional Thought (Oxford: Oxford University Press, 2016).
Ryan, “Political Thought”; Ryan, “Historicity and Universality” and Lee, Popular Sovereignty.
J.P. Canning, “Law, Sovereignty and Corporation Theory, 1300–1450,” in Cambridge History of Medieval Political Thought, c. 350 – c. 1450, ed. J.H. Burns (Cambridge: Cambridge University Press, 1988), 464–469; Ryan, “Political Thought,” 433–437. For this process in an earlier period, see Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300–1870 (Cambridge: Cambridge University Press, 2021), ch. 1.
Ryan, “Political Thought,” 437. Koskenniemi offers an account for how French jurists beginning in the thirteenth century conceptualized the process of polity formation. However, these arguments remained under the shadow of the de iure supremacy of the emperor. See Koskenniemi, To the Uttermost Parts of the Earth, ch. 1, especially 51–52.
“Iure naturali videntur usi primi homines rudes illi quidem & agrestes, caeterum expertes cupiditatis & aemulationis, qui nullum adhuc cognatorum aut vicinorum praesidium sibi quaesiverant, sed in montibus & sylvis dissipati,” François Connan, Commentaria iuris civilis libri X (Paris, 1553), i, 11r.
“Ius itaque naturale proprium est hominis solitarii, vitam agentis in agro cum uxore & liberis,” Connan, Commentaria iuris civilis, i, 13v.
“[…] coniunctio maris et feominae procreandi caussa; liberorum procreatio, et educatio: defensio sui, et libertas,” Hugo Donellus, Commentariorum de iure civili (Florence, 1840), i, 49. An interesting difference between Connan and Donellus is that the former’s use of the language of ‘wife’ suggests that a relationship resembling marriage may obtain in the state of nature, whereas the latter’s language of ‘joining’ does not. While I have not seen Connan, unlike Bodin, describe patria potestas as natural, Anna Becker has found that Connan was taken to be saying this by some contemporaries and criticized for it. See Anna Becker, Gendering the Renaissance Commonwealth (Cambridge: Cambridge University Press, 2019), 120–123.
For this process, see Dymond, “Ciceronian Jurisprudence.”
“Sed cum ad hominum societates & coetus suapte natura ferretur, paulatim exiit foras, cognationibus primum, tum affinitatibus, deinde amicitiis, postea vicinitatibus, & tandem commerciorum usu totum genus hominum societate complexus est,” Connan, Commentaria iuris civilis, i, 13v.
“[…] rerum commerciis utilitates sibi quaesiverunt ad vitam commodius degendam […]” Connan, Commentaria iuris civilis, i, 13v–14r.
“Nominatur autem ius gentium, quo deo utantur omnes homines qui in gentem aliquam sunt, societatemque congregati,” Connan, Commentaria iuris civilis, i, 14r.
“[…] qui dissipatos in agris homines conciliavit inter se, & coniunxit […] Hic homines ex feris & immanibus mites reddidit & mansuetos, ut iam animi iudicio potius quam viribus corporis omnia administrarent […]” Connan, Commentaria iuris civilis, i, 14v.
“[…] eneficia ultro citroque darent & acciperent, nihil detraherent de alieno sui emolumenti gratia, sed eandem putarent uniuscuiusque, quae & universorum, utilitatem […]” Connan, Commentaria iuris civilis, i, 14v.
Cicero, De inventione 1.1–2. An early example is Connan’s teacher Alciato, in Andrea Alciato, “Oratio in laudem iuris civilis principio studii habita cum Avenione profiteretur,” in Opera Omnia (Basel, 1582), iv, 1025–1026. For the earlier history of De inventione’s reception, see Cary J. Nederman, “The Union of Wisdom and Eloquence before the Renaissance: The Ciceronian Orator in Medieval Thought,” Journal of Medieval History 18 (1992), 75–95, and Nederman, “Nature, Sin and the Origins of Society: The Ciceronian Tradition in Medieval Political Thought,” Journal of the History of Ideas 49 (1995), 3–26.
Cicero, De officiis 1.23. Translation from Cicero, On Duties, trans. M.T. Griffin and E.M. Atkins (Cambridge: Cambridge University Press, 2021), 10.
Cicero, De officiis 1.54. Translation from Cicero, On Duties, 23.
“[…] in initiis huius mundi tempus […] cum enim duo homines primo conditi essent […] singuli homines de communi sumere possent, quantum vellent, sine alterius iniuria, aut offensione,” Donellus, Commentariorum de iure civili, i, 51.
“[…] recta ratio usu […] Illinic enim inopia rerum ad vitam necessariarum: hinc dissidia, et turbae […]” Donellus, Commentariorum de iure civili, i, 52.
“[…] quod (ut dixi) ut suo labore quisque coleret, ac procuraret: ita caveret sibi, ne in id alius quisquam posset invadere sine iniuria,” Donellus, Commentariorum de iure civili, i, 52.
“[…] hoc primum rectae rationis, et iudicii opus, et lex inter homines […]” Donellus, Commentariorum de iure civili, i, 52.
“Nam cum, dominiis distinctis, coepisset alius habere, quo ego indigerem: eo autem frui, invito domino, non possem […] induci eas commutations, quae commercia, et contractus appellamus,” Donellus, Commentariorum de iure civili, i, 52.
“Hinc ergo contractus recepti, emptio, venditio, locatio, conductio, societas, mandatum, depositum, commodatum, et similes. Ex his obligationes […]” Donellus, Commentariorum de iure civili, i, 52.
Quentin Skinner, From Humanism to Hobbes: Studies in Rhetoric and Politics (Cambridge: Cambridge University Press, 2018), 12–19.
Although he also claims in De inventione 1.100 that, alongside the civitas, the laws or any place can be so represented.
Cicero, De officiis 1.124; Cicero, On Duties, 48.
Cicero, De officiis 1.124; Cicero, On Duties, 48.
For the reception of Cicero’s definition of the civitas as a societas with its own persona, see Peter Stacey, The State in Machiavelli (Cambridge: Cambridge University Press, forthcoming 2025). For an abridged version of the argument, see Peter Stacey, “Liberty and the Rule of Law,” in A Cultural History of Democracy in the Renaissance, eds. Virginia Cox and Joanne Paul (London: Bloomsbury, 2021), 55–57. The definition can be found in Cicero, On the Commonwealth and On the Laws, trans. James E.G. Zetzel (Cambridge: Cambridge University Press, 2017), 97–98.
Cicero, Pro Cluentio, 146.
Annabel Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011), 130.
Cicero, On the Commonwealth, 159.
Skinner, From Humanism to Hobbes, ch. 1; Stacey, “Liberty and the Rule of Law,” 41–62; Stacey, The State in Machiavelli.
Stacey, “Liberty and the Rule of Law”; Stacey, The State in Machiavelli.
Julius Kirshner, “Civitas Sibi Faciat Civem: Bartolus of Sassoferrato’s Doctrine on the Making of a Citizen,” Speculum 48 (1973), 700 n. 23.
This is noted by Connan in Commentaria iuris civilis, i, 16v.
“Sic tandem deflexit de via naturae, paulatimque eo deducta est humana ambitio, nihil ut haberetur praeclarius, quam divitiis & potentia excellere,” Connan, Commentaria iuris civilis, i, 16r.
“[…] sunt reges creati a populis […] & qui inter ipsos essent inopes, ut ne opprimerentur ab iis, qui maiores opes habebant,” Connan, Commentaria iuris civilis, i, 16r. Note that this account of the creation of kings appears to come from Cicero, De officiis 2.41.
“[…] in plurium autem administratione propter varia hominum iudicia, et naturalem ad dissentiendum proclivitatem, facile eveniret, ut distraherentur animi in diversas sententias,” Donellus, Commentariorum de iure civili, i, 53.
“[…] legibus vivamus, tantam attulit utilitatem rebus humanis […]” Connan, Commentaria iuris civilis, i, 28r.
“[…] inquit Tullius […] legum denique servi omnes sumus, ut liberi esse possimus. Nam his aut oppressis aut neglectis, nihil erit quod suum quisque possit dicere, nihil certum habere, nihil quod liberis suis se relicturum sperare possit,” Connan, Commentaria iuris civilis, i, 28r. Connan’s additions to the Pro Cluentio appear to come from Cicero, Pro Caecina 70 and 74, respectively, in which a similar argument is made.
“[…] eadem causa fuit magistratuum creandorum, ut quando lex quae generaliter loquitur, neque distincte omnia potest et speciatim comprehendere, neque una omnibus rebus aequaliter convenire, legis moderator quidam et administrator constitueretur, qui pro sua prudentia eam interpretaretur, et ad similia negotia accommodaret,” Connan, Commentaria iuris civilis, i, 64v.
“Itaque Tullius in legibus, magistratum legem loquentem appellat: legem autem, mutum magistratum, quod Martianus dicit in ius hoc honorarium quasi vivam esse vocem iuris civilis,” Connan, Commentaria iuris civilis, i, 64v.
“Haec ipsa si per se procurare, et administrare posset civitas, non progrederemur longius,” Donellus, Commentariorum de iure civili, i, 229–230.
“Nunc autem civitatis non ea persona est, quae quidquam gerere possit in rebus,” Donellus, Commentariorum de iure civili, i, 230.
“Alienis auxiliis ad eam rem opus est […] qui pacem publicam tueri, civies in officio continere, maleficia pro imperio coercere, civibus iura reddere, ad munera capessenda cogere invitos possint,” Donellus, Commentariorum de iure civili, i, 229–230.
“Ad superiors res recte administrandas defensoribus, ac reipublicae curatoribus opus est […] inquibus duobus consistit salus, et incolumnitas civitatum: eoque nulla est respublica, quae his duobus careat,” Donellus, Commentariorum de iure civili, i, 230.
“[…] magistratus, et praeficti, quibus reipubliae cura in aliqua parte commissa est,” Donellus, Commentariorum de iure civili, i, 230.
Connan, Commentaria iuris civilis, i, 16r; Donellus, Commentarium de iure civili, i, 53.
“Civitatibus et regnis conditis, bella introducta, nempe ad illa ipsa tuenda,” Donellus, Commentariorum de iure civili, i, 53.
“[…] cum bellis utamur aut ad propulsandos hostes aut res ab hostibus juste repetendas,” Donellus, Commentariorum de iure civili, i, 53.
“[…] ut ne ab hostibus externis universi […] opprimerentur […]” Connan, Commentaria iuris civilis, i, 16r.
“Et quid mirandum est suas esse collegiis leges, cum et gentis unius et agnationis esse possint, puta, ut filii maiore aut minore ex parte sint haeredes, quam lex civitatis iubeat,” Connan, Commentaria iuris civilis, i, 41r.
“Nec enim id caeteris civibus detrimentum affert, sed est ius quoddam gentilitium, horum tantum agnatorum proprium,” Connan, Commentaria iuris civilis, i, 41r.
“Et sunt nonnullae apud nos familiae nobelium, quae sibi ius in suis successionibus constituerunt,” Connan, Commentaria iuris civilis, i, 41r.
“Sed an statutis suis poenam possint adiicere, magis est ambiguum,” Connan, Commentaria iuris civilis, i, 41r.
“[…] cum nulla lex per se satis munita sit adversus improbos, si desit poenae metus,” Connan, Commentaria iuris civilis, i, 41r.
“At vero civitates, corpora etiam et collegia civitatum, quin et eiusdem quasi gentis et agnationis populi sibi consuetudinis authores sunt, ut et fatentur: status condunt […] quid enim aliud est statutum quam lex?” Connan, Commentaria iuris civilis, i, 41rv.
Gio Maria Tessarolo has shown how this structuring concept of Althusius’s thinking is indebted to the Roman law concept of societas. See Gio Maria Tessarolo, “The Politics of societas and the Early Modern State,” The Historical Journal (2024): 1–21.
“Politica est ars homines ad vitam socialem inter se constituendam, colendam & conservandam consociandi […] Proposita igitur Politicae est consociatio, qua pacto expresso, vel tacito, symbiotici inter se invicem ad communicationem mutuam eorum, quae ad vitae socialis usum & consortium sunt utilia & necessaria, se obligant,” Johannes Althusius, Politica Methodice digesta, atque exemplis sacris et profanes illustrata vol. 1, ed. with intro. by Corrado Malandrino (Turin: Claudiana, 2009), 220. Translation from Johannes Althusius, Politica, ed. and trans. Frederick S. Carney (Carmel,
“Nam familiae, civitates & provinciae natura sua prius quam regna, quae ex hisce sunt orta, exstiterunt,” Althusius, Politica Methodice digesta vol. 1, 508. Translation from Althusius, Politica, trans. Carney, 66.
“Membra universitatis [Althusius uses universitas analogously with civitas] sunt privatae diversaeque consociationes conjugum, familiarum & collegiorum, non singuli cujusque consociationis privatae,” Althusius, Politica Methodice digesta vol. 1, 326. Translation from Althusius, Politica, trans. Carney, 66.
“Corporis itaque & animi necessitates atque virtutum semina animis nostris insita, homines dispersos & dissipates in unum locum contraxerunt. Hae caussae aedificarunt vicos, construxerunt civitates, fundarunt Academias, multorum agricolarum, artificum, fabrorum, architectorum, militum, mercatorum, doctorum atque indoctorum varietatem, tanquam totidem ejusdam corporis membra, unitate & societate civili copularunt […] omnes pariter in publicum quoddam corpus (quam Rempublicam vocamus),” Althusius, Politica Methodice digesta vol. 1, 230–232. Translation from Althusius, Politica, trans. Carney, 23.
“Communis [law] est, quae natura sua omnibus hominibus a Deo est ingenerata […] Cic. lib. 2. De legib. erat enim, ait, ratio profecta a rerum natura, & ad recta faciendum impellens, & a delicto revocans, quae non tunc demum incipit lex esse scripta, sed tunc cum orta est,” Althusius, Politica Methodice digesta vol. 1, 910. Translation from Althusius, Politica, trans. Carney, 139.
“Communicatio illa mutua […] quam dixi, fit rebus, operis, juribus communibus, quibus indigentia varia et multiplex singulorum et universorum symbioticorum suppletur […] et societatis humanae perficitur, seu vita socialis constituitur et conservatur,” Althusius, Politica Methodice digesta vol. 1, 222. Translation from Althusius, Politica, trans. Carney, 19.
“Unde Cicero dixit, populum esse coetum juris consensus et utilitatis communione consociatum,” Althusius, Politica Methodice digesta vol. 1, 222. Translation from Althusius, Politica, trans. Carney, 19.
“[…] in quavis consociatione et symbiosi specie sint quidam imperantes, praestites, praepositi, praefecti seu superiores: quidam vero obsequentes, seu inferiores,” Althusius, Politica Methodice digesta vol. 1, 224. Translation from Althusius, Politica, trans. Carney, 20.
“Et nihil, ut Cic. lib. 3. De legib. ait, tam aptum est ad jus conditionemque naturae, quam imperium, sine quo, nec domus ulla, neque civitas, neque gens, nec hominum universum genus stare […] potest,” Althusius, Politica Methodice digesta vol. 1, 224. Translation from Althusius, Politica, trans. Carney, 20. The reference is to Cicero, De legibus 3.1.
“Director et gubernator communium negotiorum ad hanc consociationem spectantium est maritus,” Althusius, Politica Methodice digesta vol. 1, 260. Translation from Althusius, Politica, trans. Carney, 29.
“[…] in hac potestate […] vinculum, anima & vitalis spiritus regni […] continetur […] eo vero sublato, omnis illa vita symbiotica concidit, & vel incipit esse latroncinium, malorumque hominum congregation, vel ex uno regno fiunt diversa plura alia regna, aut provinciae,” Althusius, Politica Methodice digesta vol. 1, 520. Translation from Althusius, Politica, trans. Carney, 70.
“[…] administratores et rectores, universalis consociationis corpus, seu totum et universum populum, a quo constituti sunt, repraesentant […] ejusque personam gerunt in iis, quae Reipublicae seu regni nomine faciunt,” Althusius, Politica Methodice digesta vol. 1, 706. Translation: “The administrators and rectors of the universal symbiosis and commonwealth represent the body of the universal association, of the whole people by whom they have been constituted […] they bear its person (gerere personam) in those things they do in the name of the commonwealth,” Althusius, Politica, trans. Carney, 97.
“Coniuncti homines sunt duorum generum consociati, nimirum et uniti natura, vel hominum placito,” Johannes Althusius, Dicaelogicae Libri Tres: Totum et universum ius (Herborn, 1649), 17.
“[…] societas, unio, communio, consociatio, corpus hominum plurium, plures hominem in unam societas collecti […] Haec hominum coniunctio consistit in ordine, consensione animorum, communicatione consilii et auxilii mutui, et commode participatione,” Althusius, Dicaeologicae, 17.
“Ordo est […] qua actiones coniunctorum hominum, iuxta eorundum conditionem et consesum attemperantur et diriguntur,” Althusius, Dicaeologicae, 17.
“Propter hanc unionem sit, ut non singuli homines per se et in se, sed totum, ex personarum plurium comprehension corpus, constans, consideretur tanqaum una persona,” Althusius, Dicaeologicae, 17.