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Medieval Conceptions

Medieval Europe, it is often argued, is an insignificant period in the history of liberty. And yet "liberty" (libertas or franchise) is a word that can be found in a wide range of medieval documents: charters, plea rolls, theological treatises, and polemical writings. Liberty was, in medieval Europe, widely and primarily grasped as territorial immunity from seigneurial justice. The exclusion of public judges from an individual's land was the privilege attached to and exercised in the landlord's territory, and it could only be granted by a higher authority that acknowledged the capacity to act as a holder of a court or to be a judge.

The libertas and franchise, however, were privileges, and their recipients were often communities. They were not the rights of individual citizens. Indeed, medieval European society has been described as consisting of tightly bound corporate groups, in which individuals were absorbed, and liberty was often attributed to such groups rather than individuals. Should "liberty" be supposed to be an attribute of individuals, it might appear difficult to narrate a medieval history of liberty. But the "discovery of the individual" is now traced back to the world of intellectuals, higher clergy, and aristocracy in the twelfth century. Accordingly, recent research has denied that liberty as an attribute to individuals was not known in medieval Europe. Liberties as individual rights were also known in terms of personal freedom from, say, arbitrary imprisonment and extortion of money for release. This idea of individual liberties can be found in the record of royal justices and parliaments. Article 39 of the Magna Carta (1215) stipulated that "no free man should be captured and imprisoned or disseized or outlawed or exiled or in any way harmed except by a lawful tribunal of his peers and by the law of the land." King John (r. 1199–1216) was compelled to concede to the requests of the rebellious barons and accepted that royal legislative and judicial authority was limited not only by the divine and natural law but also by his need to obtain counsel and consent of his subjects. In the fourteenth century, the privilege was not limited to the aristocracy as "free men" but to all: no men of whatever estate or condition he may be was to be captured and imprisoned unlawfully. Historians are divided over the significance of the charters of liberties. While the charters appear to offer new liberties, some scholars argue that they merely acknowledged freedoms that had already been enjoyed de facto by individuals as well as communities.

Similar conceptual change took place in the sphere of political and legal theory. It is well known that Henry de Bracton (d. 1268) noted the concept of liberty in Roman law as "the natural power of every man to do what he pleases, unless forbidden by law or force." Thomas Aquinas (c. 1224–1274) maintained that by nature all human beings were both free and equal. Aquinas's concept of liberty denotes the individual's capacity for free choice, in which one is master of oneself, as opposed to servitude, a markedly Aristotelian conception. The English philosopher William of Ockham (c. 1285–?1347) was perhaps the greatest champion of individual liberty before the Renaissance and the Reformation. His ecclesiastical protest against the heretical doctrine of papal absolutism culminated in his assertion of the liberty of evangelical law, which may be grasped as volitional freedom of moral choice. Also Ockham's "nominalist" outlook rejected the quintessentially medieval idea of corporation, thus attributing what he called "right and liberties granted by God and nature" to all individual humans rather than any fictitious groups. His discourse on natural rights and individual liberty has long been considered as the "semantic revolution" of the medieval language of rights. His intrinsically destructive anarchism, it was argued, anticipated the collapse of medieval Latin Christendom followed by the Reformation. Recent research, however, has shown that Ockham's notion of right as the subjective power of an individual's volition originates in the writings of canon lawyers in the twelfth century, such as Uguccione da Pisa (d. 1210), who held that human rationality included a capacity for moral discernment.

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