Contract and Theft Two Legal Principles Fundamental to the civilitas and res publica in the Political Writings of Francesc Eiximenis, Franciscan friar

Beginning in the 20s of the last century, historical research into Eiximenis's life (1330 ca Girona- 1409 Perpignan) and writings has thrown into relief his contribution to the language and political ideas of the kingdoms and towns of the Catalan-Aragonese Crown. Of fundamental importance has been the work of medievalists from North America, and in particular that of Canadian scholars during the last decades of the twentieth century.¹

More recently, a number of studies have underlined the decisive contribution of Eiximenis – a representative of a European textual tradition among friars of the Minor Observance that extended from Oxford to Florence – to the establishment of a system of ethical values for the economic sphere and for trading practices that continued to be developed by members of the Franciscan Order throughout the high middle ages and early modern period.²

As a follow-up to these studies, I believe that a program of textual analysis and systematic investigation of Eximenis's work could provide further information about the range and significance of his political thinking, based as it was on applying, in typically Franciscan fashion, experimental observation to gain an understanding of the nature both of the societas and of the market, the latter being thought of as a defining expression of civic institutions in Western Europe. This same experimental approach can be found in Franciscan thinking from the catalan-aragonese realm not only in the work of Arnau de Vilanova and Ramon Llull, but also in that of Pere Tomas and Anselm Turmeda, two figures fundamental to the preparation and political engagement of the Friar of Girona.³

1. The concept of contract

In Eiximenian texts, the communitarian dimension is defined as one that is of necessity based on contract. It is expounded in the long opening section of the Dotzè del Crestià, where Eiximenis outlines the political value of the civitas, as well as setting out the elements that constitute civic life.

Borrowing from Aristotle's discussion in the First Book of the Politics (I A 1256a-1259a), the Franciscan friar strongly affirms that one of the principal reasons behind the civitas is the "necessitat de contractes," the need for contracts. Going far beyond the highly qualified analysis of money and coinage set out by the Greek philosopher, Eiximenis here maintains that the aims of the community is the profit that the citizenry realises by means of different forms of exchange, through buying and selling, through contracts, and through trading. Moreover, that the binding nature of trading-contracts is a matter of concern not of the city in the narrow sense, but of each and every kind of human social organization.

Even before contract-law, or, better said, conventional or foral procedure, Eiximenis views the idea of the contract as an essential part of the ethical and organizational principles of living as a community, the essence of the civitas. And it is of great significance that when he is discussing the value and function of money, Eiximenis chooses to call the sorts of exchange that to-day we term economic or financial les civils conmutacions, or exchanges between citizens⁴.

These lexical hints allow us to capture the strength of meaning and value, the ethical perspective by which the Gerundense defines the inextricable union of the market and civic society. But it is not only an analytical perspective, significant as that is, that unites market and civic ethics; we are presented with a value judgment of contract and economic exchange as elements that determine the very idea of civilitas.

The "bona civilitas," an expression that can be roughly translated as "good civic culture," is in fact founded on a concept of economic ethics that has as its distinguishing feature the logic of profitable exchange, of the distribution of that profit, of contractualization, and of the circulation of goods and money. It is characterised by redefining the anti-value of avaritia (avarice) as a real crimen that injures the organizational principles of the community. The...