The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Centennial Book) - Hardcover

Pennington, Kenneth

Hardcover

ISBN 10: 0520079957 ISBN 13: 9780520079953

Publisher: California University Press, 1993

Synopsis

The power of the prince versus the rights of his subjects is one of the basic struggles in the history of law and government. In this masterful history of monarchy, conceptions of law, and due process, Kenneth Pennington addresses that struggle and opens an entirely new vista in the study of Western legal tradition.

Pennington investigates legal interpretations of the monarch's power from the twelfth to the seventeenth century. Then, tracing the evolution of defendants' rights, he demonstrates that the origins of due process are not rooted in English common law as is generally assumed. It was not a sturdy Anglo-Saxon, but, most probably, a French jurist of the late thirteenth century who wrote, "A man is innocent until proven guilty."

This is the first book to examine in detail the origins of our concept of due process. It also reveals a fascinating paradox: while a theory of individual rights was evolving, so, too, was the concept of the prince's "absolute power." Pennington illuminates this paradox with a clarity that will greatly interest students of political theory as well as legal historians.

About this title

About the Author

Kenneth Pennington is Professor of History and Law at Syracuse University. Among his previous books is Popes and Bishops: The Papal Monarchy in the Twelfth and Thirteenth Centuries (1984).

From the Back Cover

"A work of synthesis that at the same time introduces new material to the treasury of studies on medieval political thought."--Stanley Chodorov, University of California, San Diego

"Specialists will find it not merely interesting, but exciting and significant."--Robert L. Benson, University of California, Los Angeles

Excerpt. © Reprinted by permission. All rights reserved.

The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition

By Kenneth Pennington

University of California Press

Copyright © 1993 Kenneth Pennington
All right reserved.
ISBN: 0520079957


Introduction

In 1987, newspaper columnist Tom Wicker wrote that a former foreign minister of Israel, Abba Eban, preferred that the United States concentrate on new diplomatic initiatives in the Middle East rather than on a "prolonged investigatory ordeal" into the "Iran Affair" that was creating dangerous political storms for the Reagan ship of state. Mr. Eban's suggestion, inveighed Wicker:1

reflects a profound misunderstanding of the rule of law that is at the root of American democracy, and an even greater misreading of democracy's limits. Nothing undermines the rule of law, hence democracy, more than the ability of some temporary government, even for purposes believed good, to set aside law, or distort it, or ignore it.

What worried Mr. Wicker also concerned the medieval jurists, even though they were lamentably ignorant of modem democratic principles. They did dabble in theories of representative government, created doctrines of consent to legislation, and believed in limited government. Through their writing and teaching jurists had created a powerful system of norms and rules derived from natural law, customary law, ancient Roman law, feudal law, and canon law that defined their conception of a properly ordered world.2 They conceived of law as a re-

The International Herald Tribune, January 5, 1987, p. 4.

The best introduction to these ideas is Ennio Cortese's brilliant book, La norma giuridica: Spunti teorici nel diritto comune classico (2 volumes; Ius nostrum 6; Milan: 1962-1964).

pository of norms that created an unwritten constitution for society. Modern historians have dubbed this construct "Medieval Constitutionalism." Manlio Bellomo calls their system of thought a "common law" that reigned over medieval and early modern Europe.3

Wicker assumed that "rule of law" and "democracy" are tautological—one cannot logically exist without the other. "Rule of law," however, is an equivocal term: It can mean a society regulated by an ordered, just legal system, or it can mean a narrow legal principle.4 In any case, Wicker is probably right about modern democracies; the "rule of law" is a cornerstone of democratic institutions in the late twentieth century. But a reverential belief in the "rule of law" can and did exist long before Western democracies.

In its earlier lives, "rule of law" was an important element in monarchical and republican (that is, non-monarchical, but not necessarily democratic) governments. When Wicker referred to "rule of law," he wanted to define a government's duty to uphold the rules of the legal system and to maintain the written constitution of the state. The implicit question he posed—could or should a government break the law for the public good?—has been asked regularly by Western thinkers since the twelfth century.

The Middle Ages is a fair trek, in mind and spirit, from the twentieth century. In fact, where twelfth-century jurists had some difficulty even defining law, today the institutions of the state are the primary sources of law. Before the age of legal positivism, however, law could be found in many cupboards: in nature, in the Bible (divine law), in customs of the people, in the law of nations (ius gentium), as well as in the positive law of the prince. Written constitutions bestow great advantages to our age. They define much that was undefined and disputed in earlier legal systems, and they codify the unwritten customs and beliefs of our world.

In the twelfth century, the Roman and canon lawyers, the most important political theorists of the time, confronted an uncharted terrain: the relationship of the prince and the law. Gradually they mapped it, creating metaphorical and visual symbols to represent the prince and his authority. As they plotted the various types of law, they also discovered Wicker's problem: when and under what circumstances could

For an extended essay on the "ius commune" of the continent, see Manlio Bellomo, L'Europa del diritto comune (Rome: 1989).

K. Penning, ton, "Maxims, Legal," DMA 8 (1987) 231-232.

the prince set aside, distort, or ignore the rules of the legal system(s) that he was normally obligated to preserve and uphold?

The first and most basic question the jurists had to answer was this: "who was the prince?" From ancient and early medieval thought, they inherited a vision of a unitary world and a supreme ruler, the Roman emperor. The Romans had Christianized the office of emperor; the early Middle Ages moved his center of authority from Rome to Northern Europe. Even though the empire in its medieval form never achieved the unity that theory described, the rediscovery of Roman law in the eleventh century reinforced its claims of universal power in the twelfth century. In addition, the revival of Roman law did much more than create a jurisprudential doctrine of lordship in Europe. It excited the inconclusive thoughts surrounding the nuclei of monarchy and sent off highly charged ideas in all directions. These ideas, embedded in the dense margins of medieval law books, impacted on medieval governing institutions at every level: the empire, the Church, the national monarchies, principalities, city-states, and local corporations of clerics and laymen. Within a century of this impact, governing institutions just mentioned had all undergone structural changes.5 Clearly, then, while the revival of learned law was not responsible for all institutional changes in the twelfth century, it was a significant factor.

Out of this medieval reactor emerged two new elements: a juristically defined secular ruler, the emperor, whom the texts of ancient Roman law almost invariably called "princeps" or prince, and a more sharply focused concept of law. Since, however, the medieval emperor did not exercise the comprehensive power and authority of his ancient predecessor, it was inevitable that other rulers would make claims to possess the prerogatives and power of imperial authority—or conversely, that some jurists would claim that their kings could not exercise the same prerogatives as the emperor. By the end of the twelfth century, the jurists had even invented a maxim describing Roman law's impact on the office of kings: "Rex in regno suo imperator est," a king is emperor in his own kingdom.

Before the jurists created the "prince" as a generic term to describe all rulers, they had to come to some understanding of the role of the

One could offer an endless bibliography to illustrate this change. An article by Robert L. Benson discusses two examples of the process from the twelfth century: the "renovatio sacri senatus" in the city of Rome after 1143 and the "renovatio sacri imperii" in the twelfth-century empire: "Political 'renovatio': Two models from Roman Antiquity," Renaissance and Renewal in the Twelfth Century, ed. R. L. Benson and G. Constable (Cambridge, Mass.: 1982) 339-386.

Roman, Germanic, Christian emperor. His claims of universal rulership impinged not only on the authority of every other monarch's sovereignty but also on the inviolability of the law. By the end of the twelfth century, the jurists conceded that law was not immutable. The emperor, kings, and even city-states could change law. Legislation, however, created problems and posed questions. Must the emperor have cause to introduce new laws? Could he break the law without cause? Could he wrongly deprive a subject of his rights? In the first three chapters I shall explore the evolution of the prince's authority in medieval legal thought.

This book is about power and about rights: the power of the prince and the rights of his subjects. In legal thought these two terms wage almost constant war against each other. The jurists began to write comprehensively about princely power by the end of the twelfth century. At almost the same time, they saw that power without limitations was dangerous and violated their deeply seated beliefs about how the world and society ought to be ordered. In few periods of human history did individuals cling as tenaciously and believe as devoutly in their liberties and privileges as in the Middle Ages. The feudal world encouraged them to think of the world as a set of obligations and prerogatives. A vassal must render his due to his lord, but the lord must steadfastly respect the position of, observe his obligations to, and render justice to his vassals.

In the pages that follow, we shall hear little of the rights of women. Although medieval law did recognize a few rights of women, the story that we shall tell is of male rights, power, and privilege in a male-dominated legal system. Women were not permitted to study or to practice law. Only relatively recently have the fundamental rights that we shall discuss been unreservedly and without exception granted to women.

Like the rule of law, the rights of individuals, men and women, have become shibboleths of late twentieth-century political and legal thought. By treaty and decree, governments have embraced the idea that certain rights are sacred, generally called "natural" or "human" rights, and politicians have declared that only the most callous and amoral regimes ignore them. A cynic might question whether most governments or many politicians would recognize a "right" if it hit them in the face. Nevertheless, human rights have become a political and legal badge of courage in the late twentieth century.

In American law, jurists and the courts have focused on the rights of defendants. Since World War II, the Supreme Court of the United States has created a set of rules governing the treatment of defendants and protecting them from arbitrary treatment by police. William Brennan, a forceful and eloquent proponent of defendants' rights, noted that "the protection of the dignity of the human being and the recognition that every individual has fundamental rights which the government cannot deny him" is the central purpose of the American constitution.6

Historians have traced the origins of a doctrine that granted natural rights to all human beings either to John Locke in the seventeenth century or to William Ockham in the late Middle Ages. The question of origins can play an essential role in our understanding of our past. On this point I must pose only one obvious question: Can nondemocratic societies spawn a doctrine of rights? Answering that question with an emphatic yes, Brian Tierney has moved the origins of theories of rights back to the twelfth century. The jurists, he argues, were the first to enunciate a clear doctrine of natural rights.7

From chapter 4 on, I shall examine the counterpoint of the prince's power and the rights of litigants in his court. This is a comer of the broader problem of when and where doctrines of rights arose. I shall focus on Justice Brennan's concerns: the rights of defendants before the law—an aspect of what we call in Anglo-American law "due process of law." The jurists juxtaposed the prince's absolute power with the rights of litigants to receive justice. The juxtaposition resulted in an extended discussion of the prince's power and his subjects' rights that stretched over several centuries. That discussion is the heart of this book.

Before I turn to that discussion, I must clarify the term "due process." In modern parlance, "due process" refers to the "course of legal proceedings established by the legal system . . . to protect individual rights."8 It is, of course, anachronistic to apply the term to medieval

Nat Hentoff, " The Constitutionalist," The New Yorker (March 12, 1990) 45.

Brian Tierney, "Tuck on Rights: Some Medieval Problems." History of Political Thought 4 (1983) 429-441; "Villey, Ockham and the Origins of Natural Rights Theories." The Weightier Matters of the Law: Essays on Lava and Religion. Ed. John White, Jr. and F. S. Alexander. American Academy of Religion Studies in Religion, 51. Atlanta: 1988: 1-31; "Origins of Natural Rights Language: Texts and Contexts, 1150-1250." History of Political Thought 10 (1989) 615-646. Tierney surveys modern historical thought on natural tights in these essays and provides extensive bibliographical information.

To quote one dictionary's definition; Webster's New Worm Dictionary of the American Language (2d College Edition; 1978).

legal systems—even if it is a medieval coinage.9 Our concept of due process encompasses far more than the right to have a wrong examined in a court. English legal historians have used "due process" loosely to describe any supposition by medieval lawyers that a case should be judged according to the procedure and laws of the land. This definition is so broad—and in many cases misleading—that it is almost meaningless as a technical term. Every legal system, no matter how primitive, embraces the concept that every litigant should be granted a hearing that conforms to the law of the land or people.10 I shall use the term in the following pages to describe medieval jurists' treatment of issues that are important elements of our assumptions about due process: the right of a litigant to be summoned, to testify, and to present evidence in court. These rights, which became a part of Western European legal thought only during the thirteenth century, are not part of every legal system.

Finally, in this book I am concerned with the development of a ius commune, a common law, in Western Europe during the medieval and early modem periods. When applied to continental legal systems, the term "common law" sounds strange to most English-speaking historians. In the Anglo-Saxon legal world, we speak of common law as being the legal system that evolved in England from the eleventh century to the present. However, the fusion of Roman, canon, and feudal law produced a ius commune and a common jurisprudence in Europe between 1100 and 1600.11 In the pages that follow, we shall see how these three legal systems created new doctrines that became legal tender in each. In this study, I will illustrate how the jurists of Italy, Spain, France, and Germany approached problems informed by a common jurisprudence. Geography and language did not isolate them as modern jurists often are. A common body of law, a common system of legal education, and a common body of literature bound European jurists together. By the year 1300, the two major branches of law in Western Europe, canon and Roman law, were parts of a single intellectual sys-

The earliest use of the term is in a statute of Edward III, 28 Edward III, c.3 (1354): "saunz estre mesne en respons par due proces de lei." The phrase is frequently used in the fifteenth century: 4 Henry IV, c.22, "le incumbent ouste sanz due proces." 7 Henry IV, c.4: "sont condempnes a leurs creditours per due proces du loy." 9 Henry V, Statute 1, c.8: "convicta de felonie per due proces de leie."

See, for example, Norman Doe, Fundamental Authority in Late Medieval English Law (Cambridge Studies in English Legal History; Cambridge: 1990) 27-31, who discusses the Statutes cited in n. 9 without examining what the term might have meant in the fourteenth and fifteenth centuries. See also K. Jurow, "Untimely Thoughts: A Re-Consideration of the Origins of Due Process of Law," American Journal of Legal History 19 (1975) 265-279.

See Bellomo, L'Europa del diritto comune 67-89.

tem. Although Romanists, or civilians as they are sometimes called, might distinguish themselves from their canonistic colleagues or vice versa, their rare jibes at one another should not mislead us. They grappled with common problems and solved those problems within the intellectual framework of the ius commune. What we may see as "cross-fertilization," they understood as "self-fertilization." The development of Western ideas on the authority of the prince or due process of law was not the work of canon, Roman, or secular jurists, but an intricately choreographed intellectual dance of three partners that lasted more than four centuries. The music ended only with the triumph of national legal systems in the seventeenth century; a finale that not all historians applaud.12

Ibid., 11-43.

Continues...

Excerpted from The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Traditionby Kenneth Pennington Copyright © 1993 by Kenneth Pennington. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Edition details

• Publisher: California University Press
• Publication date: 1993
• Language: English
• ISBN 10: 0520079957
• ISBN 13: 9780520079953
• Binding: Hardcover
• Number of pages: 352