Between feudalism and sovereignty

The problem of private property

Awareness of the tension between the positive law of appropriation and the natural law of common ownership did not begin with Aquinas.⁹⁵ The historian Diana Wood, for instance, argues that Augustine was aware of it and concerned about it: “In the early fifth century St Augustine had recognized the problem of the conflicting laws. Rights of possession were firmly grounded on human law, whereas divine law had decreed that ‘the earth and the fullness thereof were the Lord’s.”⁹⁶

The Middle Ages, according to Wood, first grappled with this lingering question of why human and divine law differed by exploiting “the flexibility of natural law” itself.⁹⁷ The twelfth-century canonist Rufinus developed “a clumsy threefold definition of natural law,” in which natural law fell into three categories: commands (“which ordered the performance of good acts”), prohibitions (“which forbade the performance of bad ones”), and demonstrations (which provided more general advice “like ‘Let all goods be held in common’” but stopped short of being obligations).⁹⁸ Custom was required for applying commands and prohibitions to specific situations. Custom could give people the liberty to say “‘this is my slave, that is your field,”’⁹⁹ but custom did not thereby contradict natural law. Rather, custom was “a way of disciplining fallen humanity into following the commands and prohibitions of natural law.”¹⁰⁰

Thinkers who followed Rufinus quickly replaced the threefold account with a distinction between the strict letter of the natural law and its application. Alexander of Hales (d. 1254), for instance, viewed natural law as decreeing community of property in the innocent state of nature but allowing private property in the “diseased” state into which humans had fallen, in much the same way as a doctor “might think drinking wine was healthy” but “would hardly give it to a sick man.”¹⁰¹

Aquinas, as we have seen, pushed the distinction further, arguing “that natural law could be changed (and Aquinas actually uses the Latin verb mutare, to change) in two ways, either by additions to it or subtractions from it.”¹⁰² In other words, “private possession was really for the common good.”¹⁰³ In his Commentary on the Nichomachean Ethics, Thomas stated that “external goods that are used purposively by man have a moral character.”¹⁰⁴

Thomas’ treatment of positive law—and, with it, his treatment of private property—is a landmark in the history of political theory, according to Walter Ullmann. Ullmann writes that Thomas was able to give us “the first exposition of the theory of the State” by integrating Aristotle’s naturalism into Christian cosmology'.¹⁰⁶ The state, for Thomas, is a natural emanation of human reason.¹⁰⁶ Ullmann goes so far as to say that no supernatural or divine element is necessary at all in Thomas’ account, with the result that Thomas brings political science into being.¹⁰⁷

In Ullmann’s analysis, Aristotelian naturalism allowed Thomas to resolve the conflict between natural and positive law in a new way. Because the state is a product of nature, its laws—which are by definition positive, human laws—must also be products of nature. They are, Ullmann writes, “the channels through which the natural law finds its articulate expression.”¹⁰⁸ Rather than placing natural law and positive law in irreconcilable conflict, Thomas holds that positive law “is an emanation of the natural law.”¹⁰⁹

The reemergence of taxation

Aquinas lived at a time when Europe was emerging from several centuries marked by the absence of regular taxation. Rome’s crisis in the third century and then the “relative economic autarchy of the early Middle Ages and the political fragmentation following the barbarian invasions” had destroyed the sophistication of the Roman tax system as it had existed during the height of the empire.¹¹⁰ The strongest and—relatively speaking—wealthiest political system in western Europe after the collapse of the Roman Empire was the Frankish kingdom, but even that was not a tax-based system.¹¹¹ The Merovingian and Gothic kings lacked any regular tax income. They had no choice but to repay “their faithful servants” by granting them benefices (land, in this context). The tendency was to add to the benefices immunity (exemption from all other jurisdiction) and commendation (the grantee’s swearing of homage to the lord). In fact, the absence of regular taxation may have been one of the preconditions that allowed the elements of feudalism to fall into place.¹¹²

Nevertheless, the idea of the publicum never entirely disappeared. It was an enduring legacy of Rome, a mark of political legitimacy'. “Under the empire,” Chris Wickham writes, “the publicum was taxation, imperial property, and the bureaucracy, the collective good, just as the ‘public sector’ is today.” Even after the wealth of the tax system disappeared, the post-Roman kings, even when weak, invoked the term “to mean rights which belonged to them.”¹¹³ Although the requirement that the lord live off the lord’s own landed estates (domains) replaced the concept of regular taxation in the early Middle Ages,¹¹⁴ living off the domains was only possible because the lord had a right to services, produce, and “a great number of imposts and levies.”¹¹⁵ These rights themselves could became property' rights, as evidenced by the practices of usurping and redeeming tithes. The tithe was the most widespread form of taxation after the Carolingian rulers extended the obligation to pay it throughout western Europe in the eighth century'. After the collapse of the Carolingian state, however, “the lay' lords found this lucrative taxation a temptation too great to resist.”¹¹⁶ Even when the church managed to “redeem” its usurped tithes, the redemption typically' placed the tithe in monastic hands, where it retained the character of revenue.¹¹⁷ In addition, as the medieval period progressed domains at all levels of the hierarchy' shrank and the lords had to concede more and more lands to the peasants; the lords found it increasingly difficult to live off their own lands.¹¹⁸ Thus, the requirement that the lord live off the domains was never in reality' as divorced from the practice of living off of tax revenues as it was in theory'.

The reemergent institution of taxation slowly' became more important as a supplement to resources from the king’s own lands. This happened first in

England around 1000, with zEthelred Il’s Danegeld. As the eleventh century turned into the twelfth, there was a tendency for the exactions by lords from their peasants to be increasingly in money. Wickham explains that the reason for this was simple: “there was more silver around, so it was actually possible to expect that peasants might have access to it.” The lords, moreover, “increasingly preferred money rent, as it was easier to use it to buy goods.” Thus, when taxation returned as a regular feature of political life, it is not surprising that it too was almost always paid in money.¹¹⁹ Revenue in the form of money facilitated both more bureaucracies and more wars.¹²⁰ The need for military defense, in fact, created the conditions under which both feudalism could develop and under which regular taxation could reemerge, just as the overwhelming need for military defense had contributed to the collapse of central authority and relocation of power to local landholders in the first place as the Roman Empire faded. The needs of the rulers for revenue were increasing just as their traditional sources of obtaining revenue—“the royal domain, the profits of [administering] justice, and feudal obligations”—were shrinking.¹²¹

The newly revived taxation “was by no means as heavy as it had been under the Roman Empire, and still was in Byzantium and the Islamic states.” It was also inconsistently collected and did not become “a fundamental feature of English or French budgets” until the Hundred Years’ War. Nevertheless, it helped rulers support large numbers of paid officials and increase local justice and administrative effectiveness in ways reminiscent of the Roman Empire.¹²²

The principle of necessity

If a king asked for an extraordinary' tax to meet an emergency' or a necessity, any special privileges, immunities, liberties, and exemptions had to yield. They' were, in fact, invalid because they amounted to nothing more than private contracts. But they' were only invalid if the ruler successfully demonstrated “the existence of real necessity.”¹²³ This early—or, rather, re-emerging—version of public law required an actual emergency' or necessity' to become superior to private law. In ordinary’ circumstances, “the king and the prerogative were subordinate to the private law of the land.”¹²⁴ Necessity' in this sense was, in fact, a principle of private law, but even Augustine had used the notion in his formulation of just war theory—more specifically, “the right of the kingdom to defend itself against the aggressor.” According to Gaines Post, the scholastics followed and developed Augustine’s thought; beginning in the twelfth century the kings of France and England appealed to necessity' to justify the extraordinary' taxes they' demanded; and necessity' became “a principle of public law in the thirteenth century'.”¹²⁵

Necessity as an enabling principle, therefore, became tied to the doctrine of just war.¹²⁶ Until the thirteenth century', taxation had been a matter of private law because it was considered to be a form of appropriation and, thus, fell into the legal subject matter of property'.¹²⁷ In the thirteenth century, however, taxation became a matter of public law because legitimacy of the institution came to depend on the ruler’s need for funds to engage in just warfare.¹²⁸ The jurist Azo of Bologna (1190-1225), for instance, declared that just war constituted a case of necessity sufficient to permit the ruler to expropriate private property, including by the levying of taxes.¹²⁹

The church and the theologians followed the lawyers and the politicians, at least to an extent. The Third and Fourth Lateran Councils (1179 and 1215, respectively) agreed to the rulers’ use of the necessitas principle, but only in cases of true necessity. The 1179 Council, for instance, “decreed that bishops should not presume to burden their subjects with taxes and exactions; only in cases of great necessity, when the cause was manifest and reasonable, could modest financial aid be affectionately requested.”¹³⁰ Particularly after the rediscover}' of Justinian’s Digest and of Roman law in the eleventh century and of Aristotle’s political philosophy in the twelfth, the theologians began to use the concept of necessity as an enabling principle as well as a limiting principle.¹³¹ Post argues that public law began to develop in the High Middle Ages for two reasons—because theologians began to demand that private contract “must yield to the superior rights of the public welfare,”¹³² and because Roman ideas of public law re-entered the discourse right at the time in which they could be “transferred from the universal Empire to the rising feudal monarchies.”¹³³ As Le Goff observes, there was a close connection between the reemergence of the state and the reemergence of taxation, and the impetus behind the reemergence of both was the need to fund wars.¹³⁴

At the same time, however, the lawyers’ and the theologians’ commitment to necessitas as a limitation on the taxing power remained strong. Justinian’s Code, compiled in the sixth century, forbade the imposition of new taxes without extraordinary circumstances, common utility, and the emperor’s sanction. It also commanded restitution of illicit taxes and punishment of officials levying taxes beyond the limits of custom or imperial edict.¹³⁵ The Digest supplied a starting point for the investigations of legists and theologians into justifications of taxation when the local, irregular impositions of the early Middle Ages gave way to new' revenue demands by increasingly powerful rulers in the twelfth and thirteenth centuries.¹³⁶ The theologian Peter the Chanter (d. 1197) and his Parisian colleagues, for instance, set forth “demanding criteria”: money taken was robber}' except in grave emergencies, and knights and other officials should be “‘enjoined at confession to renounce all taxes except in cases of necessity’” or with consent.¹³⁷ The canonist Hostiensis (c. 1200-1271) demanded that taxes imposed by a ruler be necessary and just and authorized by the emperor. Even King Louis IX (1214-1270) “asserted that funds should be taken justly and used for good ends and that taxes were to be levied only in times of critical need.” He insisted, in keeping with the teachings of biblical commentator and cardinal Hugues de Saint-Cher (1200-1263), “that restitution should take precedence over charitable giving, and in 1258 and 1259 he obtained papal bulls and ecclesiastical letters authorizing him to use for alms money and property which he felt bound to restore, whose owners could not be found.” And the publicist Pierre Dubois (c. 1255-1321) “proclaimed it a mortal sin for the king to ask for more aid than he needed or to request support which was not absolutely essential.”¹³⁸

In summary, in the twelfth and thirteenth centuries taxation came to balance the feudal tradition, with its emphasis on property rights, against the emerging awareness of public utility.¹³⁹ Put differently, the two roles of nécessitas—the enabling role, a function of the ruler’s perspective, and the limiting role, a function of the property holder’s perspective—came into a conflict that taxation was asked to mediate.

Identity of interests

These historical sketches raise the question of what tax is for. Is it primarily a means of achieving some notion of the common good, or is it the state’s means of maintaining itself? In the Middle Ages, the latter purpose had not yet emerged as an independent justification for tax. Eberhard Isenmann writes: “Unlike modern taxes, which are required to meet a general financial need, medieval and early modern taxes, at least in their origins, could only be justified in terms of the general good or for more specific, and on the whole exceptional, purposes.”¹⁴⁰ “The principal arguments justifying the levy of taxes,” Isenmann concludes, “thus tended to oscillate between the necessities and claims of the prince on the one hand, and the necessities of the commonweal on the other.”¹⁴¹ Moreover, if the legitimate purpose of taxation was to meet “the necessities of the commonweal,” what were those necessities? The idea that taxation compensated the prince foi-services rendered to the commonweal would serve as a bridge between the two justifications. It was a small step from the “compensation” idea to the “benefit principle” that served as the primary justification of taxation in the modern period until it ceded that role to “ability to pay.”¹⁴² Anselm of Laon (d. 1117) and, later, Henry' of Ghent (d. 1293) maintained that “taxes in effect reimbursed the costs incurred by the ruler when he fought for his country and acted as judge.”¹⁴³

It would be too simplistic to conclude that medieval political leaders justified taxation as the legitimate claim of the prince while theologians justified it as payment for the necessities of the commonweal. But there appears to be a grain of truth in the suggestion that theologians hoped for greater identity between the ruler’s needs and the needs of the poor than between the ruler’s needs and the military defense of the realm (let alone the extravagance of the ruler’s lifestyle).¹⁴⁴

The ambiguity between these two necessities—needs of the poor and necessities of the prince—was explored by John of Salisbury, an adherent of Cicero’s political thought,¹⁴⁵ and one who is numbered among the scholastic theologians concerned to employ the nécessitas principle to limit rulers’ excesses. In Book IV of his Policraticus, John used Deuteronomy 17:14-21 (God’s warnings to the people about what would happen when they asked for a king) to argue that rulers should not multiply their “horses,” i.e., should not “collect more than necessity requires,” because, by doing so, the ruler would unduly burden the subjects. John described the ruler’s nécessitas as “a legitimate quantity of such things” as are “rationally demanded by necessity or utility.”¹⁴⁶ However, John implicitly qualified his own position later, in Book VI. There he recounted a conversation he had had with his friend Pope Adrian IV (Nicholas Breakspear), the only English pope in the church’s history. Adrian, according to John, asked for a candid account of the general populace’s opinion of the pope. John obliged, telling him that the image of the church in Rome was suffering from a reputation for avarice and corruption. John rebuked Adrian for accepting “presents and payments” from the faithful:

You are off the path, father, and not on the path. The city is to be maintained out of the same presents by which it was acquired. What is freely given is freely accepted. Justice is the queen of the virtues and is embarrassed to be exchanged for any amount of price. If justice is to be gracious, she is to be free of charge. She who cannot be seduced may by no means be prostituted for a price; she is entirely and forever pure. Insofar as you oppress others, you will be oppressed by even greater burdens.¹⁴⁷

The pope, in John’s account, laughed and responded by pointing out that the needs of the people could not be met unless the ruler, who had responsibility for meeting those needs, received the resources necessary to meet them. By way of illustration, Adrian engaged in a thought experiment in which “‘all the members of the whole body conspired against the stomach, as if against that which by its voraciousness exhausted the labours of all.’”¹⁴⁸ After three days of withholding nourishment from the stomach to destroy it by starvation, the other members of the body found themselves faint from lack of nourishment as well. The heart spoke wisdom to them, and, in the pope’s parable, they listened:

Therefore, they all yielded to the counsel of the heart and, having deliberated thereupon, reason revealed that these evils were inflicted as a result of what had previously been denounced as a public enemy. For the tribute to it was withdrawn by them and like a public provisioner it halted nourishment to everyone. And because no one can fight without a salary, the soldiers were disabled and weakened when they did not receive a salary. But the fault cannot be traced back to the provisioner, who could hardly disburse to others what he did not receive himself. And it would be far more advisable that he should be furnished with goods for his distribution than that all the members should go hungry while getting rid of him. And so it was done; persuaded by reason, the stomach was replenished, the members were revived, and the peace of all was re-established. And so they absolved the stomach, which, although it is voracious and covetous of unsuitable things, still asks not for itself but for others which are unable to be sustained by its emptiness.¹⁴⁹

The pope, we are informed, then extended his analogy to the realm of civil government, telling John that if he were to “study the matter properly,” he would realize that “in the republic . . ., although the magistrates seek after a great deal, they do not accumulate it for themselves but for others.”¹⁵⁰ John appears to have acknowledged here that the dictates of suum cuique justice could yield to the demands of distributive justice. The needs of the people were identified with the needs and even the wants of the ruler. Thus, the balance between the ruler’s nécessitas and the people’s nécessitas in Book IV was transformed in Book VI into a tension between the needs of the individual subject and the needs of all.

It is not known if John was satisfied with the pope’s answer. What is apparent is that theologians of the Middle Ages had the luxury of raising the question of whether the ruler’s interests were identical with those of the subjects. Once the state became a purely fictive person, in later centuries,¹⁵¹ that question would no longer be meaningful; then the interests of the citizens would not be conceived of apart from the state that shaped and realized them.

Theologians were predisposed to remind their hearers that nécessitas could limit as well as justify the ruler’s power. They also raised the question of identity between the ruler’s interests and the interests of society’s needy members. The primary tax struggle, however, was between individual property interests and the needs of the ruler. In the thirteenth century, the balance between these two social goods was ripe for a comprehensive, theological articulation. As we have seen, it was Thomas who supplied that articulation.

Before exploring the ramifications of Thomas’ formulation of the interplay of natural law (common property) and human law (individual property), one last piece of the historical context requires analysis: the place of Thomas’ distinctive conception of property, and thus tax, in the development of ideas of political sovereignty and power.

Locating Thomas in the development of sovereignty

Arising against the feudal background, the new demands for tax revenue outstripped theoretical developments. Richard Bonney points out that the twentieth and twenty-first centuries operate with the assumption that “governments have a natural tendency to spend excessively.” Bonney, with reference to Brennan and Buchanan, also observes that, “[f]or the ordinary citizen, the power to tax is the most familiar manifestation of the government’s ability to coerce.” Because the power to tax “does not cany with it any obligation to use the tax revenue in any particular way,” the “power to ‘tax’ is simply the power to ‘take.’” The point of fiscal rules and fiscal constitutions is “to limit and direct the coercive means of government, as embodied most conspicuously in its power to tax.”¹⁵²

In 1200, “certainly no one was yet thinking in terms of sovereignty.” However, Joseph Strayer writes, “when feudal theory had been elaborated to a point where it allowed the king to regulate all justice and to tax all men, suzerainty was coming very close to sovereignty.”¹⁵⁵ By 1300, at least in England, the king “had not only many of the attributes of sovereignty, he had, and knew that he had, sovereign power.”¹⁵⁴ The king of England “taxed his subjects directly and repeatedly.” Moreover, in a development that will play a central role in the story of the next chapter, by the early fourteenth century the English monarch “asserted his right to tax the clergy without the assent of the pope.”¹⁵⁵

The march toward a doctrine of political sovereignty seems to have been led in part by the special status of property rights. Even as Thomas’ importation of Aristotelian naturalism strengthened the moral standing of private property, emerging theories bolstered the rulers’ authority to interfere with private property. In his account of Baldus de Ubaldis’ (1327-1400) treatment of the emperor’s power, for instance, Joseph Canning sees a shift from Baldus’ “main opinion” when the question of the emperor’s right to remove or transfer his subjects’ property rights arises. None of the jurists contested the fact that the emperor could remove property rights. What was in question was whether the emperor needed a cause to do so, lest he infringe the iusgentium that guaranteed those rights.¹⁵⁶ According to Baldus, in Canning’s account, the emperor must act with cause in interfering with private property, but the cause can be “whatever reason motivates the emperor himself.”¹⁵⁷ Baldus’ “main opinion” consisted in a limited conception of the emperor’s potestas absoluta. The emperor was only leg ibus solutus with respect to positive law, not natural or divine law. Canning sees this view as “distinctively medieval.”¹⁵⁸ Baldus and other medieval thinkers did not have a modern sense of sovereignty, i.e., one in which “the sovereign’s will alone expressed in a duly constitutional form makes valid law.” In the medieval conception, the emperor’s power had to exist “within the context of a structure of higher norms, expressed in the traditional language of ius naturale, iusgentium and ius divinum.” These “higher norms” were rational. Reason linked the emperor, as a rational human being, along with human law to the higher norms of natural law.¹⁵⁹ With Baldus’ assertion that the cause of the emperor’s removal or transfer of his subjects’ property rights could be any motivation, however, “the emperor’s potestas absoluta has broken through the limitations of the structure of higher norms, and no longer appears as simply the restricted positive law power we have seen so far.”¹⁶⁰

Canning considers it “unclear” why Baldus “should adopt this view on property and leave the emperor limited in other important respects.” The special treatment of property could not have been prompted by a belief that the emperor was the source of individual property rights; “the whole juristic discussion of the princeps and the property of his subjects arose because it became accepted that he was not the proprietor of those rights.” Whatever the reason, Baldus’ “treatment of private property provides a big exception to his overall view of a limited absolute power for the emperor.”¹⁶¹

The thirteenth and fourteenth centuries appear to have been a time of contrary impulses with respect to private property. Baldus’ bolstering of the ruler’s authority to interfere with individual property occurred in the wake of Thomas’ ground-clearing for a stronger justification of individual property by establishing greater continuity between natural and positive law. That Thomas himself may have unwittingly contributed to the power of rulers to “take” cannot be discounted. Walter Ullmann argues that Thomas’ “naturalization” of positive law paved the way for an eventual “positivization” of natural law by Marsilius of Padua (1275/80-1342/3). Marsilius, in Ullmann’s words, took “away all grounds for intervention on behalf of any ethical considerations: a law becomes a natural law through being a positive law.” Positive law, moreover, is enforceable “not because it is based on natural law but because it embodies the will of the legislator.”¹⁶² Whether Ullmann is correct in saying that Marsilius “demoralized” and “humanized” the law,¹⁶³ he argues persuasively that Marsilius’ “system would not have been possible without the doctrinal preparation by Thomism.”¹⁶⁴

Even in Ullmann’s account, however, there is a wide gulf between Thomas and Marsilius, and that gulf consists in the evacuation of theology' from the discussion of politics and, thus, of law:

We can see the advanced nature of Marsiglio’s thought if for a moment we recall the Thomist view of natural law as the regulator of human positive law, and the consequential easy ingress of clerical intervention, and compare this with the Marsilian view of the will of the people as the auctoritas humana which is the element that confers legal, that is, enforceable character on ‘natural law’ and which is therefore entirely removed from the clerical sphere: no moral overtones, no appeals to the eternal truths, no reference to ethical maxims, can enter here. Here a restricted human view—there the vision of eternal life.¹⁶⁵

Aquinas represents a brief and fragile stage in what Ullmann calls the “Aristotelian development.” The stages are “marked by (1) hostile attitude to [Aristotle]; (2) tolerance and absorption into Christian cosmology; (3) the release of Aristotle from the Christian garb.”¹⁶⁶ Aquinas dominated the second stage; the third stage emerged with Marsilius. If Aristotle enabled Thomas to give an unprecedentedly full and affirmative account of individual property rights, his justification for the ruler’s invasion of those rights in the interest of the common good remained theological, especially in contrast to the political theories of Baldus and Marsilius.

In short, Thomas was uniquely situated to shape the dynamic between individual and common conceptions of property. In Question 66 ofSecunda Secundae, Thomas writes:

External things can be considered in two ways. First, as regards their nature, and this is not subject to the power of man, but only to the power of God Whose mere will all things obey. Secondly, as regards their use, and in this way, man has a natural dominion [dominium] over external things, because, by his reason and will, he is able to use them for his own profit.¹⁶⁷

The human capacity to act upon external things gives humans dominium over those things; and this principle explains even why a piece of land should belong to one person rather than another:

[I]f a particular piece of land be considered absolutely, it contains no reason why it should belong to one man more than to another, but if it be considered in respect of its adaptability to cultivation, and the unmolested use of the land, it has a certain commensuration to be the property of one and not of another man.¹⁶⁸

For Thomas, an external thing belongs to an individual, not through sheer mastery or power, but through use guided by reason and will. Underneath the thoroughness with which he balances these two goods—individual and common property—without diminishing the importance of either, lies his unique formulation of the interplay of natural and positive law. That formulation, in turn, is made possible by Thomas’ skill in balancing theology (which requires that we think of “external things” as given by God to all in common) and economic reality (which dictates that external things will contribute to the common good most effectively when invested with individual labor and rights).

From one standpoint, Thomas’ reconciliation of the affirmative goods of communal and individual property is nothing other than his contribution to the articulation of the fracture “between arche and dynamis in God” in the “theological paradigm,” which, by analogy, is the separation of “kingdom from government” in the “liberal political paradigm” that was to emerge.¹⁶⁹ Christianity, as we have seen, “split” classical ontology “into two separate realities”: “theology and oikonomia.^nm In the theological paradigm, this aporia would be expressed in terms of immanence and transcendence. In the sphere of civil government, the gulf “lays bare the twofold structure that defines the governmental machine of the West.”¹⁷¹ Sovereign power becomes articulated on two levels: Kingdom and Government. In the theological realm, Kingdom and Government must be continuously separated so that the doctrine of providence can ceaselessly rejoin them.¹⁷²

The aporia arose from Aristotle’s Metaphysics, which, according to Agamben, bequeathed “to Western politics the paradigm of the divine regime of the world as a double system, formed, on the one hand, by a transcendent arche, and, on the other, by an immanent concurrence of secondary actions and causes.”¹⁷³ This double system, Agamben writes, is the problem of order. Order {taxis') refers to reciprocal relation in the Metaphysics.™ In the Politics {29fP), taxis is the reciprocal relation of the powers (archai). Therefore, Agamben concludes, Aristotle displaced the term “order” from its generic context to its strategic location “at the junction between ontology and politics, which makes of it a fundamental terminus technicus of Western politics and metaphysics.”¹⁷⁵

Order, in Agamben’s estimation, is an ontological concept. It produces a displacement of ontology “from the category of substance to the categories of relation and praxis.” Order does not presuppose being; order is being. The displacement of ontology from substance to praxis, Agamben argues, is “the specific legacy that medieval theology leaves to modern philosophy.”¹⁷⁶

This medieval move—the making of order a central ontological principle—is most pervasive in Aquinas’ writings, Agamben writes. “Following an intention that deeply marked the medieval vision of the world, Thomas tried to make of order the fundamental ontological concept, which determines and conditions the very idea of being; and yet, precisely for this reason, the Aristotelian aporia reaches with him its most radical formulation.”¹⁷⁷ After Thomas, what made human government conceptually possible was “the supposition of a plenitude potestatis" that “must immediately distinguish itself from its actual exercise (its

Thomas Aquinas 103 executio), which then constitutes the second sword.”¹⁷⁸ The inseparability yet distinction between Thomas’ natural law of common ownership and positive law of private ownership, I would suggest, maps onto the continuous fracturing and rejoining of authority and its exercise. Just as Christian theology comes close to requiring an aporia between the God who reigns but does not govern on the one hand and the government itself on the other, so Western politics seems to require a rupture between the ideal condition (e.g., communal property) and realistic, functioning circumstances (e.g., private property). The healing of that fracture requires a balance of the ideal condition and functional circumstances. That is, it requires civil government—and tax as a constituent part thereof.